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CASES  ON 
CONSTITUTIONAL    LAW 


To  accompany  THE  GENERAL  PRINCIPLES 
OF  CONSTITUTIONAL  LAW.  By  Thomas 
M.  CooLEY,  LL.D One  volume^  12mo. 


.^^ 


SELECTION  OF  CASES^I^' 


ON 


#v^ 


CONSTITUTIONAL   LAW 


BY 

EMLIN   McCLAIN,  A.M.,  LL.D. 


SECOND    EDITION 


r 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1909 


T 


Copyright,  1900, 1909, 
By  Emlin  McClain. 


THE   UNITRRSITT   PRESS,    CAMBBIDQE,   V.  S.  A. 


i 

U. 
h 


PREFACE  TO  SECOND  EDITION. 


The  changes  and  additions  which  have  been  thought  necessfoxy 
to  bring  this  collection  of  cases  down  to  the  present  time  are  of 
three  classes : 

First.  Some  cases  which  have  been  so  explained  or  limited  by 
the  Supreme  Court  of  the  United  States  that  they  have  become 
misleading  as  present  statements  of  the  law  have  been  eliminated 
and  in  their  places  later  cases  containing  the  more  recent  exposi- 
tions of  the  same  subjects  have  been  substituted. 

Second.  A  considerable  number  of  recent  cases  illustrating  the 
application  of  cases  in  the  text  have  been  referred  to  by  brief 
statements,  in  the  notes,  of  the  points  decided. 

Third.  Some  important  recent  cases  relating  to  Interstate  Com- 
merce, the  Government  of  Annexed  Territory,  Due  Process  of 
Law,  and  Equal  Protection  of  the  Laws,  have  been  added  in 
appendices  under  proper  headings.  Except  as  cases  have  been 
eliminated  from  the  text  by  the  substitution  of  more  recent  cases 
on  the  same  subjects,  there  is  no  substantial  change  in  the  text, 
new  groups  of  cases  being  put  in  the  appendices. 

EMLIN   McCLAIN. 

Iowa  City,  September,  1909. 


PREFACE. 


The  object  of  this  collection  of  cases  is  to  furnish  to  the  stu- 
dent the  means  of  pursuing  the  study  of  constitutional  law  by 
the  case  method.  The  general  outline  of  the  plan  of  arrange- 
ment adopted  by  Judge  Cooley  in  his  "  Principles  of  Constitu- 
tional Law"  is  followed,  and  in  subject-matter  the  two  books 
correspond  chapter  by  chapter  and  almost  section  by  section, 
save  that  the  first  two  chapters  of  Judge  Cooley's  work,  which 
are  general  and  historical,  are  represented  in  this  collection  by 
two  chapters  which  contain  cases  relating  to  the  general  nature 
of  the  Federal  Constitution  and  the  relation  of  the  States  to  the 
Federal  Government;  while  the  scope  of  the  third  chapter  is 
extended  to  cover  some  questions  which  it  seems  proper  to 
bring  together,  although  in  the  "Principles"  they  are  treated 
later  in  connection  with  other  subjects. 

This  collection  of  cases  may  therefore  be  used  as  the  sole  stu- 
dents' book  on  the  subject,  the  teacher  giving  such  historical 
matter  as  to  the  origin  of  constitutional  principles  and  as  to  the 
adoption  of  the  constitutional  system  as  he  deems  necessary ;  or 
it  may  be  used  to  supplement  Cooley's  "  Principles  "  and  enable 
the  student  to  read  a  series  of  cases  illustrative  of  the  text  of 
that  work,  and  thus  do  more  effectively  the  case  reading  which 
any  teacher,  using  the  text-book,  would  like  to  have  his  students 
do  in  connection  with  the  study  of  the  text.  To  make  the  use  of 
this  book  as  an  independent  work  convenient  and  satisfactory,  the 
Federal  Constitution  has  been  reprinted,  and  a  table  of  contents, 
a  table  of  cases,  and  a  full  index  have  been  given. 

It  has  not  been  easy  to  include  those  important  cases  which 
would  be  looked  for  in  a  collection  of  this  kind  and  with  which 
every  student  of  this  subject  should  become  familiar,  and  at  the 
same  time  reasonably  cover  all  the  subject-matter  which  should 


PREFACE. 


come  within  the  scope  of  a  course  of  instruction.  It  has  been 
necessary  to  bear  in  mind  limitations  inherent  in  the  fact  that 
only  a  certain  amount  of  time  can  be  given  to  the  subject  in  any 
law-school  course.  Moreover,  many  of  the  important  cases  are 
very  long,  and  to  print  them  in  full  would  require  not  only  a 
large  book,  but  a  disproportionate  amount  of  reading  on  the  part 
of  the  student.  Therefore,  while  there  is  a  well-founded  objection 
to  the  abridgment  of  cases,  it  has  been  thought  expedient  to  recog- 
nize these  limitations,  and  to  put  some  of  the  cases  into  a  shorter 
compass  by  the  omission  of  the  less  material  parts.  In  doing  this, 
however,  care  has  been  taken  not  to  destroy  the  essential  features 
of  the  case  or  reduce  it  to  a  mere  statement  of  abstract  princi- 
ples. The  statements  of  facts  have  often  been  shortened  by  the 
elimination  of  matter  not  necessary  to  make  plain  the  constitu- 
tional questions  involved ;  but  sufficient  facts  have  been  preserved 
in  each  case  to  enable  the  student  to  understand  clearly  how  the 
question  arises  from  the  facts,  as  well  as  enough  of  the  opinion 
to  enable  him  to  follow  the  reasoning  of  the  court  with  regard  to 
the  facts.  In  other  woi-ds,  the  cases  as  here  presented,  even  when 
abridged,  have  the  characteristics  of  the  decisions  of  courts  in 
cases  which  have  come  before  them,  and  are  not  the  mere  enunci- 
ation of  general  principles.  All  omissions  of  parts  of  the  opin- 
ions are  indicated  by  points,  or  by  inserting  explanatory  matter 
in  brackets. 

Where  a  connected  line  of  decisions  has  been  found  on  one  par- 
ticular question  it  has  often  been  practicable  either  to  give  the 
early  leading  case,  with  short  extracts  from  the  later  cases  exem- 
plifying and  illustrating  the  doctrine,  or  a  later  case  in  which  the 
reasoning  of  the  earlier  cases  is  fully  set  out ;  and  when  a  case  is 
thus  fully  enough  stated  in  another  opinion  to  render  it  intelligible 
to  the  student  as  a  case,  it  has  been  included  in  the  table  of  cases  in 
parentheses,  with  a  reference  to  the  page  on  which  it  is  thus  cited. 
This  will  frequently  enable  one  using  the  table  of  cases  to  reach 
the  subject-matter  of  a  leading  case  which  he  has  in  mind,  even 
though  that  case  may  not  be  printed  in  full.  The  table  of  cases, 
however,  does  not  purport  to  give  all  the  cases  cited,  but  only 
those  which  are  so  fully  cited  that  the  statement  of  them  substan- 
tially serves  as  a  reproduction  of  the  case  itself. 


PREFACE.  ix 

In  the  matter  of  dissenting  opinions  there  has  been  considerable 
difficulty  in  reaching  a  satisfactory  conclusion  ;  but  in  view  of  the 
necessary  limits  of  time  and  space  it  has  been  thought  that,  on 
the  whole,  the  reading  of  the  prevailing  opinions  of  the  courts  is  a 
better  exercise  for  the  student  than  the  reading  of  the  dissenting 
opinions.  And  while  the  fact  of  dissent,  if  any,  is  preserved  in 
each  case,  —  and  in  many  cases  there  is  some  short  extract  from 
the  dissenting  opinion  showing  the  discrepancy  between  the  rea- 
soning of  the  majority  and  the  minority  of  the  court,  —  yet,  in 
general,  the  opinions  of  the  dissenting  judges  are  not  given. 

The  ground  covered  by  this  collection  is  not  restricted  to  the 
questions  arising  under  the  Federal  Constitution,  and  many  sub- 
jects are  included  which  involve  the  usual  provisions  of  State 
Constitutions  as  weU,  the  plan  of  Judge  Cooley's  book  being  pre- 
served in  this  respect  as  in  others.  But  where  opinions  of  the 
Supreme  Court  of  the  United  States  bear  on  the  questions  which 
arise  under  State  Constitutions,  those  decisions  have  been  pre- 
ferred to  the  decisions  of  the  State  courts  on  the  same  questions. 

EMLIN  McCLAIN. 

State  University  of  Iowa, 

Iowa  City,   February,  1900. 


TABLE  OF  CONTENTS. 


Page 

Table  of  Cases       xxi 

Constitution  of  the  United  States xx\-iii 

CHAPTER  I. 

Nature  of  the  Federal  Constitution  and  its  Amendments     ...  1 

McCulloch  V.  Maryland 1 

Barron  v.  Baltimore 14 

Twining  v.  New  Jersey 17 

Slaughter-House  Cases 19 

United.  States  v.  Cruikshank 31 

Civil  Rights  Cases 37 

Rogers  v.  Alabama 39 

CHAPTER  H. 

Relation  of  the  States  to  the  Federal  Government 40 

Lane  County  v.  Oregon 40 

Tarble's  Case 43 

Tennessee  v.  Da\ns 51 

Ex  parte  Siebold 56 

In  re  Nedgle 65 

Hauenstein  v.  Lynham 72 

Davis  V.  Elmira  Savangs  Bank 76 

CHAPTER  HI. 

DEPARTMENTS   OF   GOVERXMEXT. 

Section  I.     The  Legislative  Department 79 

Taylor  v.  Place      79 

Geebrick  v.  State 88 

Dalby  v.  Wolf 91 

Stone  V.  City  of  Charlestown 93 

Field  V.  Clark 95 

Section  IL     The  Executive  Department 102 

Mississippi  v.  Johnson 102 

State  ex  rel.  v.  Stone 105 

United  States  ex  rel.  v.  Black 109 

Section  IIL     The  Judicial  Department 113 

Case  of  Super\'isors  of  Elections 113 

State  ex  rel.  v.  Simons      117 


Xll  TABLE   OF   CONTENTS. 

Page 

City  of  Wahoo  v.  Dickinson 120 

Ex  parte  Griffiths 122 

United  States  ex  rel.  v.  Duell      125 

Harwood  v.  Wentworth 130 

Turnbull  v.  Giddings 133 

CHAPTER  IV. 

THE   LEGISLATIVE   DEPARTMENT. 

Section  I.     Taxation 136 

a.  Subjects  of  Taxation 136 

State  Tax  on  Foreign-held  Bonds      136 

Kirtland  v.  Hotchldss  . 142 

Sa\'ings  etc.  Society  v.  Multnomah  County      146 

b.  Taxation  of  Government  Agencies      153 

The  Collector  v.  Day 153 

South  Carolina  v.  United  States 157 

United  States  v.  Railroad  Company      158 

Thomson  v.  Pacific  Railroad 162 

Railroad  v.  Company  Peniston 106 

California  v.  Central  Pacific  R.  Co. ' 167 

Central  Pacific  R.  Co.  v.  California 169 

Bank  of  Commerce  v.  New  York  City 170 

Bank  v.  Super\-isors      175 

Wisconsin  Central  R.  Co.  v.  Price  County 178 

Sayles  v.  Davis      186 

Moore  v.  Quirk 188 

Warren  v.  Paul      188 

c.  For  Public  Purpose 189 

Loan  Association  v.  Topeka 189 

Ivingman  v.  City  of  Brockton 195 

Blair  v.  Cuming  County 198 

Deering  v.  Peterson 201 

Wurts  V.  Hoagland 203 

d.  Notice ;  Uniformity ;  Special  Taxes 205 

Kentucky  Railroad  Tax  Cases 205 

Kelly  V.  Pittsburgh 211 

French  v.  Barber  Asphalt  Pav.  Co.  - 215 

Veazie  Bank  v.  Fenno      222 

e.  Direct  Taxes 223 

Pollock  V.  Farmers'  Loan  and  Trust  Company 223 

Section  IL     Regulation  of  Commerce 235 

a.  Extent  of  Federal  Power      235 

Gibbons  v.  Ogden      235 

Henderson  v.  Mayor,  &c.  of  New  York 244 

Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co 252 

Lord  V.  Steamship  Company 256 

Hanley  v.  Kansas  City,  &c.  R.  Co 259 

The  Daniel  Ball 260 

United  States  v.  E.  C.  Knight  Co 263 

United  States  v.  KoUiday 270 


TABLE   OF    CONTENTS.  Xlll 

Page 

Validity  of  State  Regulations 273 

1.  Local  Provisions;   Control   of  Harbors,    Bridges,  Dams, 

and  Ferries "''^ 

Willson  V.  Blackbird  Creek  Marsh  Company 273 

Cooley  V.  Board  of  Wardens 275 

Pennsylvania  v.  Wheeling,  &c.  Bridge  Co 282 

Escanaba  Company  v.  Chicago 285 

Harman  v.  Cliicago 290 

United  States  v.  Rio  Grande  Dam,  &c.  Co 297 

Kansas  v.  Colorado 2^2 

2.  Taxation  of  Commerce 303 

Brown  v.  Maryland 303 

^                II..  'i^'i 

Welton  V.  Missouri '^'^'^ 

Robbins  v.  Shelby  County  Taxing  Dist 317 

Ficklen  v.  Shelby  County  Taxing  Dist 323 

Emert  v.  Missouri      324 

Crutcher  ■;;.  Kentucky 328 

Brown  v.  Houston ^'^'^ 

American  Steel,  &c.  Co.  v.  Speed 338 

Telegraph  Company  v.  Texas      338 

Leloup  V.  Port  of  Mobile      341 

Pliiladelphia,  &c.  S.  S.  Co.  v.  Pennsylvania 342 

Galveston,  &c.  R.  Co.  v.  Texas 349 

Adams  Express  Co.  v.  Ohio  State  Auditor 349 

3.  Exercise  of  Police  Power 355 

/    Railroad  Company  v.  Fuller 355 

'      Lake  Shore,  &c.  R.  Co.  v.  Oliio 357 

Chesapeake  &  O.  R.  Co.  v.  Kentucky 366 

Houston  &  Texas  Cent.  R.  Co.  v.  Mayes 366 

Cleveland,  &c.  R.  Co.  v.  lUinois 366 

Railroad  Company  v.  Husen 367 

Kimmish  v.  Ball 3/1 

Brimmer  V.  Rebman 3<3 

Morgan's  S.  S.  Co.  v.  Louisiana  Board  of  Health 376 

Leisy  V.  Hardin 3/8 

Rhodes  v.  Iowa      '^^ 

American  Express  Co.  v.  Iowa 39o 

-  Reymann  Brg.  Co.  v.  Brister 395 

Delamater  v.  South  Dakota 395 

SchoUenberger  v.  Pennsylvania 396 

CoUins  V.  New  Hampshire ^^^ 

.  Federal  Tax  on  Exports 402 

Pace  V.  Burgess , 402 

Cornell  v.  Coyne 404 

I.  State  Tax  on  Imports  or  Exports 404 

Almy  V.  California 404 

Turner  v.  Maryland 406 

!.  State  Tax  on  Tonnage 409 

Inman  Steamship  Co.  v.  Tinker      409 

Packet  Co.  V.  Keokuk 411 

Transportation  Co.  V.  Wheeling      •    •  416 


XIV  TABLE   OF   CONTENTS. 

Page 

Section  m.     Naturalization 423 

Boyd  V.  Thayer 423 

In  re  Rodriguez 434 

Section  IV.     Bankruptcy 436 

Baldwin  v.  Hale 436 

Section  V.     The  Currency 442 

Legal  Tender  Case 442 

Trebilcock  v.  Wilson 454 

Section  VI.     Bills  of  Credit 459 

Briscoe  V.  Bank  of  Kentucky      459 

Poindexter  v.  Greenhow 469 

Section  VII.     Weights  and  Measures 471 

Weaver  v.  Fegely      471 

Section  VIII.     Counterfeiting 474 

United  States  v.  Marigold 474 

Section  IX.     Post-Offices  and  Post-Roads 478 

In  re  Rapier 478 

Public  Clearing  House  v.  Coyne 479 

Section  X.     Copyrights  and  Patents 480 

Wheaton  v.  Peters 480 

Patterson  v.  Kentucky 489 

Herdic  v.  Roessler 495 

Dale  Tile  Mfg.  Co.  v.  Hyatt 498 

Section  XI.     Piracies,  Felonies  on  the  High  Seas,  &c 501 

United  States  v.  Smith 501 

United  States  v.  Rodgers ■ 504 

Section  XII.     War 515 

The  Prize  Cases j 515 

Martin  v.  Mott 518 

Section  XIII.     Ceded  Districts 522 

Metropolitan  R.  Co.  v.  District  of  Columbia 522 

Fort  Leavenworth  R.  Co.  v.  Lowe 528 

Geofroy  v.  Riggs 528 

Section  XIV.     Treason 541 

United  States  v.  Greathouse 541 

Section  XV.     Non-Enumerated  and  Implied  Powers 548 

Anderson  v.  Dunn 548 

Kilbourn  v.  Thompson 553 

Ex  parte  Curtis      554 

Logan  V.  United  States 557 

The  Chinese  Exclusion  Case 562 

Fong  Yue  Ting  v.  United  States 567 

United  States,  Ex  rel.  v.  Williams 568 

Section  XVI.     Restrictions  on  the  Powers  of  Congress     ....  568 


TABLE    OF   CONTENTS.  XV 

CHAPTER  V. 

THE   POWERS   OF   THE    EXECUTIVE. 

Page 

Section  I.     Reprieves  and  Pardons 569 

Ex  parte  Wells 569 

Ex  parte  Garland 576 

Section  II.     Treaties 5S1 

Haver  •?;.  Yaker 581 

People  ex  rel.  v.  Gerke 583 

Geofroy  v.  Riggs 586 

Head  Money  Cases 587 

Section  III.     Diplomatic  Relations  and  Political  Questions  .    .    .  590 

Jones  V.  United  States 590 

Luther  v.  Borden 595 

Georgia  v.  Stanton 606 

Section  IV.     Appointment  and  Removal  of  Officers      607 

United  States  v.  Germaine 607 

Blake  v.  United  States 610 

CHAPTER  VL 

THE   JUDICIAL   DEPARTMENT. 

Section  I.     Constitutional  Grant  of  Jurisdiction 617 

a.  Cases  arising  under  Constitution,  Laws,  or  Treaties  of  the  t'nited 

States      617 

Osborn  v.  Bank  of  the  United  States 617 

Pacific  Railroad  Removal  Cases 623 

Southern  Pacific  Railroad  Company  v.  California 624 

Bock  V.  Perkins 626 

6.  Cases  affecting  Ambassadors,  other  Public  I\Iinisters,  and  Consuls     .  628 

Bors  V.  Preston      628 

c.  Cases  of  Admiralty  and  Maritime  Jurisdiction      635 

Waring  v.  Clarke 635 

The  Propeller  Genesee  Chief  v.  Fitzhugh 648 

The  Steamboat  Magnolia 650 

The  Robert  W.  Parsons 652 

Ex  parte  Boyer      653 

Manchester  v.  Massachusetts 655 

The  Moses  Taylor 664 

Leon  V.  Galceran 669 

d.  Controversies  to  which  the  United  States  or  a  State  is  a  party    .    .    .  673 

1.  Suits  by  or  against  the  L^nited  States      673 

Stanley  v.  Schwalby 673 

United  States  v.  Texas 676 

2.  Controversies  between  States 686 

3.  Controversies  between  a  State  and  its  own  Citizens  or 

Citizens  of  another  State 686 

Ames  V.  Kansas 686 

State  of  Wisconsin  v.  Pelican  Insurance  Company 692 


XVI  TABLE   OP   CONTENTS. 

Page 

4.  Suits  against  States 702 

Hans  V.  Louisiana 702 

South  Dakota  v.  North  CaroUna 713 

Railroad  Company  v.  Tennessee 718 

5.  Suits  against  Officers,  Agents,  or  Agencies  of  the  United 

States  or  a  State       720 

United  States  v.  Lee 720 

Cunningham  v.  Macon,  &c.  R.  Co 728 

e.  Cases  of  Diverse  Citizenship 734 

Hooe  V.  Jamieson 734 

Ohio  &  M.  R.  Co.  V.  Wheeler      737 

St.  Louis  &  S.  F.  R.  Co.  v.  James 739 

Section  IL     Exercise  of  Jurisdiction 746 

o.  Original  in  Supreme  Court 746 

b.  Appellate 746 

Martin  v.  Hunter's  Lessee 746 

Ex  parte  Vallandigham 763 

Marbury  v.  Madison 766 

Ex  parte  Watldns .  768 

c.  By  Removal 769 

Gaines  v.  Fuentes      769 

Security  Mut.  L.  Ins.  Co.  v.  Preuitt      773 

d.  By  Habeas  Corpus  Proceedings 777 

Wliitten  V.  Tomlinson 777 

e.  Grants  of  Federal  Judicial  Power  to  State  Courts  or  Officers  ....  782 

Robertson  v.  BaldAnn 782 

/.  Conflicting  Jurisdiction  of  Federal  and  State  Courts 784 

Riggs  V.  Johnson  County 784 

Section  IH.     The  Law  Administered 789 

a.  Following  the  Law  of  the  State 789 

Green  v.  Neal's  Lessee      789 

Townsend  v.  Todd 796 

Swift  V.  Tyson 796 

Railroad  Co.  i-.  National  Bank 800 

Pana  v.  Bowler      801 

State  Bank  v.  Knoop 802 

Gelpcke  v.  City  of  Dubuque 802 

Burgess  v.  Seligman      805 

Bucher  v.  Cheshire  R.  Co 808 

Chicago  Union  Bank  v.  Kansas  City  Bank 811 

b.  Common  Law  in  Federal  Jurisprudence 812 

Smith  V.  Alabama 812 

Western  Union  Tel.  Co.  v.  Call  Pub.  Co 814 


TABLE   OP    CONTENTS.  xvii 

CHAPTER  VII. 

CHECKS   AND   BALANCES   IN   GOVERNMENT. 

Page 

Section  I.     JtJDici.A.L  Restraints  on  Legisl.^tive  Encroachments  .    .  815 

Marbury  v.  Madison 815 

Section  II.     Exercise  op  Power  to  Pass  on  Constitutionality  of 

Statutes 819 

Frees  v.  Ford 819 

Chicago  &  G.  T.  R.  Co.  v.  Wellman 820 

Section  III.     Effect  of  Partial  Unconstitutionality 822 

Section  IV.     Responsibility   for   Official  Acts   under   Unconsti- 
tutional Statute 822 

Campbell  v.  Sherman 822 

State  V.  Godwin 824 

CHAPTER  Vni. 

The  Government  of  the  Territories 827 

American  Ins.  Co.  v.  Canter 827 

Miners'  Bank  v.  Iowa 830 

National  Bank  v.  County  of  Yankton 830 

Thompson  v.  Utah 831 

CHAPTER  IX. 

The  Admission  of  New  States 838 

Texas  v.  White      838 

Sands  v.  Manistee  River  Improvement  Company    ........  842 

CHAPTER  X. 

CONSTITUTIONAL    RULES    OF    STATE    COMITY. 

Section  I.     Faith  and  Credit  to  be  Given  to  Acts,  Records,  and 

Judgments  of  another  State 844 

Thompson  v.  Whitman 844 

Hanley  v.  Donoghue 850 

Haddock  v.  Haddock 854 

Section  II.     Privileges  and  Immunities  of  Citizens 855 

Paul  V.  Virginia 855 

Blake  v.  McClung      859 

Section  III.     Extradition  between  States 867 

Ex  parte  Reggel 867 

Lascelles  v.  Georgia 872 

CHAPTER  XL 

The  Guaranty  of  Republican  Govern.ment  to  the  States   ....  878 


xviii  TABLE   OF   CONTENTS. 

CHAPTER  XII. 

Page 

The  Amendments  to  the  Constitution      878 

CHAPTER  Xni. 

CIVIL    RIGHTS    AND    THEIR    GUARANTIES. 

Section  I.     Religious  Liberty      879 

Pfeiffer  v.  Board  of  Education 879 

State  ex  rel.  v.  District  Board 882 

Reynolds  v.  United  States 883 

Section  II.    Security  of  the  Dwelling,  and  of  Persons  and  Papers  .  885 

Boyd  V.  United  States 885 

Section  III.     Prohibition  of  Slavery ^ 891 

Robertson  v.  Baldwin 891 

Section  IV.     The  Guaranties  of  Life,  Liberty,  and  Equality    .    .  895 

a.  Due  Process  of  Law 895 

Murray's  Lessee  v.  Hoboken  Land,  &c.  Co 895 

Ex  parte  Wall 903 

Hurtado  v.  California 905 

b.  Equal  Protection  of  the  Laws 917 

Yick  Wo  V.  Hopkins 917 

Soon  Hing  v.  Crowlev 921 

Gulf,  &c.  R.  Co.  V.  Ellis 922 

Hayes  v.  Missouri      '  •    •  923 

Pembina  Min.  Co.  v.  Pennsylvania 923 

Home  Ins.  Co.  v.  New  York 924 

c.  The  Police  Power 925 

Barbier  v.  Connolly 925 

Holden  v.  Hardy 929 

People  V.  Havnor 932 

Ex  parte  Jentzoch 933 

Ritchie  v.  Stab 933 

Dent  V.  West  Virginia      934 

Mugler  V.  Kansas 938 

Munn  V.  Illinois » 946 

Budd  V.  New  York 951 

Spring  Valley  Water  Works  v.  Schottler 953 

Smyth  V.  Ames      954 

Section  V.     Jury  Trial  in  Civil  Cases 956 

Capital  Traction  Co.  v.  Hof 956 

Vicksburg,  &c.  R.  Co.  v.  Putnam 963 


TABLE   OF    CONTENTS.  XIX 

CHAPTER  XIV. 

POLITICAL   PRIVILEGES. 

Page 

Section  I.     Citizenship 964 

a.  Who  are  Citizens  of  the  United  States 964 

■United  States  v.  Wong  Ivim  Ark 964 

h.  Privileges  and  Immunities  of  Citizens 974 

Section  II.     Suffrage  and  Elections 974 

Minor  v.  Happersett 974 

Wiley  V.  Sinkler 979 

Section  III.     Rights  to  Assemble  and  to  Bear  Arms 979 

CHAPTER  XV. 

Protection  to  Persons  Accused  of  Crime 980 

Calder  v.  Bull 980 

Kring  v.  Missouri 983 

-     Mackin  v.  United  States 985 

Hallinger  v.  Davis 987 

Harris  v.  People 989 

Brown  v.  Walker 990 

Mattox  V.  United  States 995 

CHAPTER  XVI. 

PROTECTION   TO   CONTRACTS  AND   PROPERTY. 

Section  I.     Laws  Impairing  the  Obligation  of  Contracts    ....  998 

Woodruff  V.  Trapnall 998 

McGahey  v.  Virginia 1001 

Murray  v.  Charleston 1002 

Salt  Co.  V.  East  Saginaw 1003 

Fisk  V.  Jefferson  Police  Jury 1005 

Trustees  of  Dartmouth  College  v.  Woodward 1000 

The  Binghampton  Bridge    .    .  , 1011 

Delaware  Railroad  Tax 1012 

Pennsylvania  College  Cases 1013 

Beer  Co.  v.  Massachusetts 1014 

Douglas  V.  Kentucky 1016 

New  Orleans  Gas  Co.  v.  Louisiana  Light  Co 1017 

Georgia  Railroad  &  Banking  Co.  v.  Smith 1019 

East  Hartford  V.  Hartford  Bridge  Company 1021 

Morley  v.  Lake  Shore,  «&:c.  Co 1023 

McCrackin  v.  Hay  ward 1026 

Gunn  V.  Barry 10"-29 

Terry  v.  Anderson 10-9 

Mitchell  V.  Clark 1029 

Section  II.     Protection  to  Property 1030 

Missouri  Pacific  R.  v.  Nebraska      1030 

Pennoyer  v.  Neff 103- 

Arndt  v.  Griggs 1037 

Cunnius  v.  Reading  District 1038 


XX  TABLE   OF  CONTENTS. 

Page 

Goshorn  v.  Purcell 1041 

Brinton  v.  Seevers 1042 

Mattingly  v.  District  of  Columbia      1043 

Campbell  v.  Holt 1044 

Louisiana  ex  rel.  v.  Mayor  of  New  Orleans 1047 

Section  III.     Eminent  Domain     1050 

Pumpelly  v.  Green  Bay  Co 1050 

Central  Bridge  Corp.  v.  City  of  Lowell      1052 

Pierce  v.  Drew 1055 

Zehren  v.  Milwaukee  Elec,  &c.  Co 1058 

.  Bauman  v.  Ross 1059 

Kohl  V.  United  States 1061 

Cherokee  Nation  v.  Kansas  R.  Co 1063 

United  States  v.  Gettysburg  Elec.  Ry.  Co 1065 

Bedford  v.  United  States 1069 


APPENDIX  A. 

ADDITIONAL  CASES   RELATING   TO   REGULATION   OF  COMMERCE.  1071 

1.  The  Extent  of  Federal  Power 1071 

Lottery  Case 1071 

Northern  Securities  Co.  v.  United  States 1081 

2.  State  Taxation 1114 

Allen  V.  Pullman  Palace  Car  Co 1114 

APPENDIX  B. 

ADDITIONAL  CASES   RELATING  TO   ANNEXATION   OF  TERRITORY.  1119 

Downes  v.  Bxdwell 1119 

Dooley  v.  United  States 1226 

Hawaii  v.  Mankichi 1244 

Dorr  V.  United  States 1252 

Rassmussen  v.  United  States      1259 

APPENDIX  C. 

DUE  PROCESS  OF  LAW  AND  EQUAL  PROTECTION  OF  THE  LAW.    .  1260 

Lockner  v.  New  York 1260 

Cotting  V.  Kansas  City  Stockyards  Co 1278 

APPENDIX  D. 

ADMINISTRATION   OF   ALIEN    EXCLUSION   LAWS 1281 

United  States  v.  Ju  Toy 1281 

INDEX 1285 


TABLE  OF  CASES. 


[the  cases  in  parentheses  are  cited  and  fully  stated  on  the  pages  givkn.] 


(Ableman  v.  Booth,  21  How.  500)  44 
Adams  Express  Co.  v.  Ohio  State 

Auditor,  165  U.  S.  194  349 

(Ah  Yup,  In  re,  5  Sawy.  155)  434 

Allen  V.  Pullman  Palace  Car  Co.,  191 

U.  S.  171  1114 

(Allgeyer  v.  Louisiana,  165  U.  S. 

578)  929 

Almy.v.  California,  24  How.  169  404 
American  Express  Co.  v.  Iowa,  196 

U.  S.  133  395  n. 

American  Ins.  Co.  v.  Canter,  1  Pet. 

511  827 

American  Steel,  &c.  Co.  v.  Speed, 

192  U.  S.  500  338  n. 

Ames  V.  Kansas,  111  U.  S.  449  686 

Anderson  v.  Dunn,  6  Wheat.  204  548 
(Antoni  v.   Greenhow,   107  U.   S. 

769)  1002/7. 

Arndt  v.  Gris^ss,  134  U.  S.  316  1037  n. 
(Ayers,  In  re,  123  U.  S.  443)  704 


Baldwin  v.  Hale,  1  Wall.  223  436 

Bank  v.  Supervisors,  7  Wall.  26  175 

(Bank    of    Augusta    v.   Earle,    13 

Pet.  512)  737 

Bank  of  Commerce  v.  New  York 

City,  2  Black,  620  170 

(Bank  of   Kentucky  v.  Wistar,  3 

Pet.  431)  467 

Barbier  v.  Connolly,  113  U.  S.  27  925 
Barron  v.  Baltimore,  7  Pet.  243  14 
(Barron  v.  Burnside,  121  U.  S.  186)  776 
Bauman  v.  Ross,  167  U.  S.  548  1059 
Bedford  v.  United  States,  192  U. 

S.   217  1069 

Beer  Company  v.  Massachusetts, 

97  U.  S.  25  1014 

Binghampton  Bridge,  3  Wall.  51  1011  n. 
Blair  v.  Cuming  County,  111  U.  S. 

363  198 

Blake  v.  McClung,  172  U.  S.  239  859 
V.  United  States,  103  U.  S.  227  610 
Bock  V.  Perkins,  139  IT.  S.  628  626 

Bors  V.  Preston,  111  U.  S.  252  628 

(Bowman  v.  Chicago,  &c.  R.  Co., 

125  U.  S.  465)  381 


PAGE 

Boyd  V.  Thayer,   143  U.  S.   135      423 
V.  United   States,    116   U.   S. 
616  885 

Boyer,  Ex  parte,  109  U.  S.  629  653 

Brass  v.  Stoeser,  153  U.  S.  391  953n. 
(Jirig  Aurora,  7  Cranch,  382)  96 

Brimmer  v.  Rebman,  138  U.  S.  78  373 
Brinton  v.  Seevers,  12  Iowa,  389  1042  n. 
Briscoe  v.  Bank  of  Kentucky,  11 

Pet.  257  459 

(Bronson  v.  Kinzio,  1  How.  311)       1028 
(Bronson  v.  Rhodes,  7  Wall.  229)      456 
Brown  v.  Houston,  114  U.  S.  622     333 
V.  Maryland,  12  Wheat.  419        303 
V.  Walker.  161  U.  S.  591  990 

Bucher  i;.  Cheshire  R.  Co.,  125  U.  S. 

555  808 

Budd  V.  New  York,  143  U.  S.  517  951  n. 
Burgess  v.  Seligman,  107  U.  S.  20  805 
(Butterworth  v.   Hoe,  112   U.   S. 

50)  112,  127 


980 


167 

834 

1044 

822 

956 

1052 


Calder  v.  Bull,  3  Dall.  386 
California  v.  Central  Pacific  R.  Co., 

127  U.  S.  1 
(Callan  v.  Wilson,  127  U.  S.  540) 
Campbell  v.  Holt,  115  U.  S.  620 

V.  Sherman,  35  Wis.  103 
Capital  Traction  Co.  v.  Hof,   174 

U.  S.  1 
Central    Bridge    Corp.    v.   Lowell, 

4  Gray,  474 
Central  Pacific  R.  Co.  v.  California, 

162  U.  S.  91  169  n. 

Chae  Chan  Ping  v.  United  States, 

130    U.  S.  581  562 

Champion  v.  Ames,  188  U.  S.  321     1071 
Clierokee  Nation  v.  Ivansas  R.  Co., 

135  U.  S.  641  1063  n. 

Chesapeake  &  O.  R.  Co.  v.  Ken- 
tucky, 179  U.  S.  388  366/1. 
Chicago,   &c.   R.  Co.  v.  Wcllman, 

143  U.  S.  339  820 

Chicago    Union    Bank   v.    Kansas 

City  Bank,  136  U.  S.  223  811  n. 

Chinese  E.xclusion  Case,  130  U.  S. 

581  562 


XXll 


TABLE   OF   CASES. 


Cincinnati,  &c.  R.  Co.  v.  Kentucky, 

115  U.  S.  321  205 

Civil  Rights  Cases,  109  U.  S.  3         37  n. 
Cleveland,  &c.  R.  Co.  v.  Illinois, 

177  U.  S.  514  3Q6n. 

(Coe  V.  Errol,  116  U.  S.  517)  267 

(Cohens  v.  Virginia,  6  Wheat.  264) 

691,  710 
Collector  v.  Day,  11  Wall.  113  153 

Collins    V.   New    Hampshire,    171 

U.  S.  30  401  71. 

Cooley  V.  Board  of  Wardens,   12 

How.  299  275 

(Corfield  V.  Coryell,  4  Wash.  C.  C. 

371)  860 

Cornell  v.  Coyne,  192  U.  S.  418      404  n. 
(Coiinselman    v.    Hitchcock,     142 

U.  S.  547)  990 

(Craig  V.  Missouri,  4  Pet.  410)  460 

Crutcher  v.  Kentucky,  141  U.  S.  47    328 
Cunningham  v.  Macon,  &c.  R.  Co., 

109  U.  S.  446  728 

Cunnius  v.  Reading  District,   198 

U.  S.  458  1038 

Curtis,  Ex  parte,  106  U.  S.  371  554 

Cotting  V.  Kansas  City  Stockyards 

Co.,  183  U.  S.  79  1278 


Dalby  v.  Wolf,  14  Iowa,  228  91 

Dale  Tile  Mfg.  Co.  v.  Hyatt,  125 

U.  S.  46  498 

Daniel  Ball,  10  Wall.  557  260 

Dartmouth  College  v.  Woodward, 

4  Wheat.  518  1006 

Davis   V.    Elmira    Savings    Bank; 

161  U.  S.  275  76 

(Decatur  v.  Paulding,  14  Pet.  497)  110 
Deering  v.  Peterson,  75  Minn.  118  201 
Delamater  v.  South  Dakota,  205 

U.  S.  93  395  n. 

Delaware  Railroad  Tax,  18  Wall. 

206  1012  71. 

Dent  V.  West  Virginia,  129  U.  S. 

114  934 

Dooley  v.  United  States,  183  U.  S. 

151  1226 

Dorr  V.  United  States,  195  U.  S.  138  1252 
Douglas  V.  Kentucky,  168   U.    S. 

488  1016  n. 

Downes  v.  Bidwell,  182  U.  S.  244  1 1 19 
(Doyle  V.  Continental  Ins.  Co.,  94 

U.  S.  535)  775 


East  Hartford  v.  Hartford  Bridge 

Co.,  10  How.  511  1021 

(Eilenbecker  v.  District  Court,  134 

U.  S.  31)  388 

(Elk  V.  Wilkins,  112  U.  S.  94)  969 

Emert  v.  Missouri,  156  U.  S.  296        324 

Escanaba  Co.  v.  Chicago,  107  U.  S. 

678  285 


Ficklen  v.  Shelby  County  Taxing 

District,  145  U.  S.  1  323  n. 

Field  V.  Clark,  143  U.  S.  649  95 

Fisk  V.  Jefferson  Police  Jury,  116 

U.  S.  131  1005 

Fong  Yue  Ting  v.  United  States, 

149  U.  S.  698  567  n. 

Fort  Leavenworth  R.  Co.  v.  Lowe, 

114  U.  S.  525  528 

Foster  v.  Neilson,  2  Pet.  253  582  n. 

(Fox  V.  Ohio,  5  How.  410)  476 

Frees  v.  Ford,  6  N.  Y.  176  819 

French  v.  Barber  Asphalt  Pav.  Co., 

181  U.  S.  324  215 


Gaines  v.  Fuentes,  92  U.  S.  10  769 

Galveston,  &c.  R.  Co.  v.  Texas 

210  U.  S.  217  349??. 

Gariand,  E.r  parte,  4  Wall.  333  576 

Geebrick  v.  State,  5  Iowa,  491  88 

Gelpcke  v.  Dubuque,  1  Wall.  175     802 
Geofroy  v.  Riggs,   133  U.   S.  258 

528  n.,  586  n. 
(Georgia  v.  Brailsford,  2  Dall.  402) 

697 
Georgia  v.  Stanton,  6  Wall.  50  606  n. 
Georgia  R.   &   B.   Co.   v.   Smith, 

128  U.  S.  174  1019 

Gibbons  v.  Ogden,  9  Wheat.  1  235 

(Gloucester    Ferry   Co.    v.    Penn- 
sylvania, 114  U.  S.  196)  346 
Goshorn  v.   Purcell,   11    Ohio    St. 

641  1041 

Green  v.  Neal's  Lessee,  6  Pet.  291     789 
Griffin  V.  State,  119  Ind.  520  124  n. 

Griffiths,  Ex  parte,  118  Ind.  83  122 

Gulf,  &c.  R.  Co.  V.  Ellis,  165  U.  S. 

150  922  n. 

Gunn  V.  Barry,  15  Wall.  610  1029  n. 


Haddock  v.  Haddock,  201   U.  S. 

562  854  n. 

(Hagood  V.   Southern,   117  U.  S. 

52)  704 

(Hall  V.  De  Cuir,  95  U.  S.  485)  363 

Hallinger  v.  Davis,  146  U.  S.  214       987 

Hanley  v.  Donoghue,  116  U.  S.  1       850 

V.  Kansas  City,  &c.   R.   Co., 

187  U.  S.  617  259  n. 

Hans  V.  Louisiana,  134  V.  S.  1  702 

Harman  v.  Chicago,  147  U.  S.  396  290 
Harris  v.  People,  128  111.  585  989  ?^. 

Harwood  v.  Wentworth,  162  U.  S. 

547  130 

Hauenstien  v.  Lynham,  100  U.   S. 

483  72 

Haver  v.  Yakcr,  9  Wall.  32  581 

Hawaii  v.  Mankichi,  190  U.  S.  197  1244 
Hayes  v.  Missouri,  120  U.  S.  68  923??. 
Head  Money  Cases,  1 12  U.  S.  580     252  n., 

587 


TABLE  OF  CASES. 


XXIU 


Henderson  v.  Mayor,  92  U.  S.  259  244 

Herdi?  v.  Roessler,  109  N.  Y.   127  495 

Holden  v.  Hardy,  169  U.  S.  3m  929 
(Horns  Ins.  Co.  v.  Morse,  20  Wall. 

445)  774 
Home  Ins.   Co.  v.  New  York,  134 

U.  S.  194  924  n. 

Hooe  V.  Jamieson,  166  U.  S.  395  734 
Houston  &  Tex.  Cent.  R.  Co.  v. 

Mayes,  201  U.  S.  321  366  n. 

Hurtado  v.  California,  110  U.   S. 

516  905 

(Huse  V.  Glover,  119  U.  S.  543)  294 
(Hylton  V.  United  States,  3  Dall. 

171)  230 

(Illinois  Central  R.  Co.  v.  Illinois, 
163  U.  S.  142)  365 

Inman  Steamship  Co.  v.  Tinker, 
94  U.  S.  238  409 

(Insurance  Co.  v.  Morse,  20  Wall. 
445)  774 

(Jackson,  Ex  parte,  96  U.  S.  727)  478 
(Jacobson   v.    Massachusetts,    197 

U.  S.  11)  1271 

Jentzsch,  Ex  parte,  112  Cal.  468  933  n. 
Jones  V.  United  States,  137  U.  S. 

202  590 

Julliard  v.   Greenman,   110  U.  S. 

421  442 

Kansas  v.  Colorado,  206  U.  S.  46  302  n. 
Kelly  V.  Pittsburgh,  104  U.  S.  78  211 
(Kendal  v.  United  States,  12  Pet. 

524)  110 

Kentucky  Railroad  Tax  Cases,  115 

U.  S. 321  205 

(Kidd  V.  Pearson,  128  U.  S.  1)  267 

Kilbourn  v.  Thompson,  103  U.  S. 

168  553  n. 

Kimmish  v.  Ball,  129  U.  S.  217  371 

Kingman  v.   Brockton,   153  Mass. 

255  195 

Kirtland  v.  Hotchkiss,  100  U.   S. 

491  142 

Kohl  V.  United  States,  91  U.  S. 

367  1061 

Kring  v.  Missouri,  107  U.  S.  221     983  n. 


Lake  Shore,  &c.  R.  Co.  v.  Ohio, 
173  U.  S.  285  357 

Lane  County  v.  Oregon,  7  Wall. 
71  40 

Lascellcs  v.  Georgia,  148  U.  S. 
537  872 

Legal  Tender  Case,  110  U.  S.  421     442 

(Legal  Tender  Cases,  12  Wall.  457)     444 

(Lehigh  Valley  R.  Co.  v.  Pennsyl- 
vania, 145  U.  S.  192)  259  n. 

Leisy  v.  Hardin,  135  U.  S.  100  378 


Leloup  V.  Port  of  Mobile,  127  U.  S. 

640  341  n. 

Leon  V.  Galceran,  11  Wall.  185  669 

(License  Cases,  5  How.  504)        384,  939 
Loan   Association   v.    Topeka,   20 

Wall.  655  189 

Lockner  v.  New  York,  198  U.  S. 

45  1260 

Logan  V.  United  States,  144  U.  S. 

263  557 

Lord  V.  Steamship  Co.,  102  U.  S. 

541  256 

Lottery  Case,  188  U.  S.  321  1071 

(Louisiana  V.  Jumel,  107  U.  S.  711) 

704,  732 
Louisiana  v.  Mayor,  109  U.  S.  285  1047 
Luther  v.  Borden,  7  How.  1  595 


McCrackin  v.   Hay  ward,   2   How. 

608  '■  1026 

(McCready  v.   Virginia,  94   U.    S. 

391)  659,  861 

McCulloch  V.  Maryland,  4  Wheat. 

316  1 

McGTihey   v.    Virginia,   135   U.    S. 

662  1001  n. 

Mackin  v.  United  States,  117  U.  S. 

348  985 

(Mahon  v.  Justice,  127  U.  S.  700)  875 
Manchester  v.  Massachusetts,   139 

U.  S.  240  655 

Marbury  v.  Madison,  1  Cranch,  137 

766  «.,  815 
Martin  v.  Hunter's  Lessee,  1  Wheat. 

304  746 

V.  Mott,  12  Wheat.  19  518 

Mattingly  v.  Dist.  of  Columbia,  97 

U.S.  687  1043  n. 

Mattox  V.  United  States,  156  U.  S. 

237  995 

Metropolitan  R.  Co.  v.  District  of 

Columbia,  132  U.  S.  1  522 

Miners'  Bank  v.  Iowa,  12  How.  1  830  ?i. 
(Minnesota  v.   Barber,   136   U.  S. 

313)  376 

Minor  v.  Happersett.  21  Wall.  162  974 
Mississippi  v.  Johnson,  4  Wall.  475  102 
(Missouri,  &c.  R.   Co.   v.  Haber, 

169  U.  S.  613)  366 

Missouri    Pacific    R.    Co.    v.    Ne- 
braska,  164  U.  S.  403  1030 
Mitchell  V.  Clark.  1 10  U.  S.  6S3    1029  «. 
Moore  v.  Quirk,  105  Mass.  49           188  rt. 
(Moran  v.  New  Orleans,  112  U.  S. 

69)  293 

Morgan's  Steamship  Co.  v.  Louisi- 
ana Board  of  Health,  118  U.  S. 

455  376 

Morley  v.  Lake  Shore,  &c.  R.  Co., 

146  U.  S.  162  1023 

(Mormon  Church  v.  United  States, 

136  U.  S.  1)  835. 


XXIV 


TABLE   OF   CASES. 


PAGE 

Moses  Taylor,  4  Wall.  411  664 

Mugler  V.  Kansas,  123  U.  S.  623  938 
Munn  V.  Illinois,  94  U.  S.  113  946 

Murray  v.   Charleston,   96  U.    S. 

432  1002  n. 

Murray's  Lessee  v.  Hoboken  Land 

and  Improvement  Co.,  18  How. 

272  895 


National  Bank  v.  County  of  Yank- 
ton, 101  U.  S.  129  830  n. 

Neagle,  In  re,  135  U.  S.  1  65 

(New  Hampshire  v.  Louisiana,  108 
U.  S.  76)  .  716 

New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650  1017  n. 

(New  York  v.  Louisiana,  108  U.  S. 
76)  716 

(New  York  v.  Miln,  11  Pet.  103)        244 

(New  York,  &c.  R.  Co.  v.  New 
York,  165  U.  S.  628)  362 

Northern  Securities  Co.  v.  United 
States,  193  U.  S.  197  1081 

(Norwood  V.  Baker,  172  U.  S.  269)     219 


Ohio  &  Miss.  R.  Co.  v.  Wlieeler, 
1  Black,  286  737 

Osborn  v.  Bank  of  United  States, 
9  Wheat.  738  617 

(Osborne  v.  County  of  Adams, 
106  U.  S.  181)  199 


Pace  V.  Burgess,  92  U.  S.  372  402 

Pacific  Railroad   Removal   Cases, 

115  U.S.I  622  n. 

Packet  Co.  v.  Keokuk,  95  U.  S.  80  411 
Pana  v.  Bowler,  107  U.  S.  529  801  n. 
(Passenger  Cases,  7  How.  283)  245 

Patterson  v.  Kentucky,  97  U.   S. 

501  '  489 

Paul  V.  Virginia,  8  Wall.  168  855 

Pembina  Minine  Co.  v.   Pennsyl- 
vania, 125  U.  S.  181  923  n. 
Pennoyer  v.  Neff,  95  U.  S.  714  1032 
Pennsylvania    v.     Wheeling     and 
Belmont   Bridge  Co.,    18  How. 
421  282 
Pennsylvania    College    Cases,     13 

Wail.  190  1013  m. 

Pensacola  Telegraph  Co.  v.  Wes- 
tern U.  Telegiaph  Co.  96  U.  S.  1     252 
People     V.     Compagnie     Generale 
Transatlantique,  107  U.  S. 
59  252  n. 

V.  Havnor,  149  N.  Y.  195         932  n. 
People  ex  rel.  v.  Gerk^.  5  Cal.  381       583 
Pfeiffer  v.  Board  of  Education  of 
the  aty  of  Detroit,   118  Mich. 
560  879 

Philadelphia  and  Southern  Steam- 


ship Co.  V.   Pennsylvania,    122 

U.  S.  326  342 

Pierce  v.  Drew,  136  Mass.  75  1055 

(Plumley   v.    Massachusetts,    155 

U.  S.  462)  400 

Poindexter  v.  Greenhow,  114  U.  S. 

283  469  n. 

Pollock    V.    Farmers'    Loan    and 

Trust  Co.,  157  U.  S.  601  223 

(Pound  V.  Turck.  95  U.  S.  4-59)  287 

(Powell  V.  Pennsylvania,  127  U.  S. 

678^  399 

Prize  Cases,  2  Black,  635  515 

Propeller    Genesee   Chief  v.   Fitz- 

hugh,  12  How.  443  648  n. 

Public  Clearing  House  v.  Coyne,  194 

U.  S.  497  479  n. 

Pullman's  Palace  Car  Co.  v.  Penn- 
sylvania, 141  U.  S.  18  350 
Pumpelly   v.  Green  Bay  Co.,    13 

Wall.  166  1050 


Railroad  Co.  v.  Fuller,    17  Wall. 

560  355 

V.  Husen,  95  U.  S.  465  367 

V.  National  Bank,  102  U.  S. 

14  800  n. 

V.  Peniston,  18  Wall.  5  166  n. 

V.  Pennsylvania,  15  Wall.  300     136 

V.  Tennessee.  101  U.  S.  337  718 

Rapier,  In  re,  143  U.  S.  110  478 

Rassmussen  v.  United  States,  197 

U.  S.  516  1259 

Reggel,  Ex  parte,  114  U.  S.  642  867 

Reymann  Brew.  Co.  v.  Brister,  179 

U.  S.  445  395  n. 

Reynolds    v.    L'nited    States,    98 

U.  S.  145  883  n. 

(Rhode    Island  v.   Massachusetts, 

12  Pet.  657)  678,  684 

Rhodes  v.    Iowa,    170  U.    S.   412     390 
(Richmond,  &c.  R.  Co.  v.  Patter- 
sou  Tobacco  Co.,  169  U.  S.  311)     359 
Riggs  V.  Johnson  County,  6  Wall. 

166  784 

Ritchie  v.  State,  155  111.  98  933  n. 

Robbins  v.  Shelby  County  Taxing 

District,  120  U.  S.  489  317 

Robert  W.  Parsons,  The.  191  U.  S. 

17  652  n. 

Robertson   v.  Baldwin,  165  U.   S. 

275  782,  891 

Rodriguez,  In  re,  81  Fed.  R.  337    434 
Rodgers  v.  Alabama,  192  U.  S.  226  39  n. 


St.  Louis,  &c.  R.  Co.  V.  James,  161 
U.  S.  545  739 

Salt  Co.  V.  East  Saginaw,  13  Wall. 
373  1003 

Sands  v.  Manistee  River  Imp.  Co., 
123  U.  S.  288  842 


TABLE   OF   CASES. 


XXV 


Savings  and  Loan  Society  v.  Mult- 
nomah County,  169  U.  S.  421        146 

Sayles  v.  Davis,  22  Wis.  225  186 

Schollenberger    v.     Pennsylvania, 
171  U.  S.  1  396 

(Scott  V.  McNeal,  154  U.  S.  34)        1040 

Security  Mutual  L.  Ins.  Co.  v.  Prew- 
ett,  202  U.  S.  246  773 

Seebold,  Ex  parte,  100  U.  S.  371  56 

(Sinnot   v.   Davenport,   22    How. 
227)  292 

Slaughter-House  Cases,  16  Wall.  36       19 

Smith  V.  Alabama,  124  U.  S.  465       812 

Smyth  V.  .\mes,  169  U.  S.  466  954 

Soon  Hing  v.  Crowley,  113  U.  S. 
703  921  n. 

South  Carolina  v.  United  States, 
199U.  S.  437  157  «. 

South  Dakota  v.  North  Carolina, 
192  U.  S.  286  713 

Southern  Pacific   R.   Co.  v.  Cali- 
fornia, 118  U.  S.  109      ^  624 

Spring    Valley    Water    Works   v. 
Schottler,  110  U.  S.  347  953  n. 

Stanley  v.  Schwalby,  162  U.  S.  255     673 

State  V.  Godwin,  123  N.  C.  697  824 

State  Bank  of  Oliio  v.  Knoop,  16 
How.  369  802  n. 

State  ex  rel.  v.  District  Board,  76 

Wis.  177  862  n. 

V.  Simons,  32  Minn.  540  117 

V.  Stone,  120  Mo.  428  105 

(State   Freight  Tax,   Case  of,    15 
Wall.   332)  343 

State  Tax  on  Foreign-held  Bonds, 
15  Wall.  300  136 

(State  Tax  on  Railway  Gross  Re- 
ceipts, 15  Wall.  284)  345 

Steamboat  Magnolia,  20  How.  296 

650  n. 

Stone  V.  Charlestown,   114  Mass. 
214  93 

(Stone  V.   Mississippi,    101   U.   S. 
814)  _  1016  n. 

(Sturges  V.  Crowinshield,  4  Wheat. 
122)  438 

Supervisors  of  Elections,  114  Mass. 
247  113 

Swift  V.  Tyson,  16  Pet.  1  796 


Tarble"s  Case,  13  Wall.  397  43 

Taylor  v.  Place,  4  R.  I.  324  79 

Telegraph  Co.  v.  Texas,  105  U.  S. 

460  338 

Tennessee  v.  Davis,  100  U.  S.  257  51 
Terry  v.  Anderson,  95  U.  S.  628  1029  n. 
Texas  v.  White,  7  Wall.  700  838 

(Thomas  Jefferson,  The,  10  Wheat. 

428)  649 

Thompson  v.  Utah,  170  U.  S.  343 

831,  984  n. 
V.  Whitman,  18  Wall.  457  844 


Thomson  v.  Pacific  R.  Co.,  9  Wall. 

579  162 

Townsend  v.  Todd,  91  U.  S.  452  796  n. 
(Township  of  Burlington  v.  Beas- 

ley,  94  U.  S.  310)  200 

Transportation  Co.  v.  Wheeling,  99 

U.  S.  273  416 

Trebilcock  v.  Wilson,  12  Wall.  687  454 
Turnbull  v.  Giddings,  95  Mich.  314  133 
Turner  v.  Maryland,  107  U.  S.  38  406 
Twining  v.  New  Jersey,  211  U.  S. 

78 


U.  S.  V.  Cruikshank,  92  U.  S.  542 
V.  E.  C.  Knight  Co.,  156  U.  S. 

1 
V.  Germaine,  99  U.  S.  508 
V.  Gettysburg  Electric  R.  Co., 

160  U.  S.  668 
V.  Greathouse,  4  Sawv.  457 
V.  HolUday,  3  Wall.  407 
V.  Ju  Toy,  198  U.  S.  253 
V.  Lee,  106  U.  S.  196 
(U.  S.  V.  Lvnah,  188  U.  S.  445) 
U.  S.  V.  Marigold.  9  How.  560 
(U.  S.  V.  North  Carolina,  136  U.  S. 

211) 
U.  S.  V.  R.  Co.,  17  Wall.  322 
(U.  S.  V.  Rauscher,  119  U.  S.  407) 
(U.  S.  V.  Ravara,  2  Dall.  297) 
U.  S.  V.  Rio  Grande  Dam  &c.  Co., 
174  U.  S.  690 
V.  Rodgers,  150  U.  S.  249 
V.  Smith,  5  Wheat.  153 
V.  Texas,  143  U.  S.  621 
V.  Wong  Kim  Ark,  169  U.  S. 
649 
U.  S.  ex  rel.  v.  Black,  128  U.  S. 
40 
V.  Duell,  172  U.  S.  576 
(U.  S.  ex  rel.  v.  Schurz,  102  U.  S. 

378) 
U.  S.  ex  rel.  v.  Williams,  194  U.  S. 

279 
Upshur  Coimty  v.  Rich,  135  U.  S 
467 


17 

31 

263 
607 

1065 
541 
270 

1281 
720 

1070 
474 

680 
158 
874 
630 

297 
504 
501 
676 

964 

109 
125 

112 

568  n. 

773  n. 


Vallandigham,  Ex  parte,    1   Wall. 

243  763 

Veazie  Bank  v.  Fenno,  8  Wall.  533  222 
Vicksburg,  &c.  R.  Co.  v.  Putnam, 

118U.  S.  545  963  n. 

(Virginia  Coupon  Cases,  114  U.  S. 

269)  1002  n 


(Wabash,   &c.   R.   Co.   v.  Illinois, 

118U.  S.  556)  364 

Wahoo  V.  Dickinson,  23  Neb.  426  120 

Wall,  Ex  parte,  107  U.  S.  265  903 

(Ward  V.  Maryland,  12  Wall.  418)  861 


XXVI 


TABLE   OF    CASES. 


f 


Waring  V.  Clarke,  5  How.  441  635 

Warren  v.  Paul,  22  Ind.  276  188  n. 

Watkins,  Ex  parte,  7  Pet.  568  768  n. 
Weaver  v.  Fe<?ely,  29  Penn.  St.  27  471 
Wells,  Ex  parte,  18  How.  307  569 

Walton  V.  Missouri,  91  U.  S.  275  313 
Western  Union  Tel.  Co.  v.  Call  Pub. 

Co.,  181  U.  S.  92  814  n. 

(Western  Union  Tel.  Co.  v.  James, 

162  U.  S.  650)  359 

(Weston  V.  City  Council  of  Charles- 
ton, 2  Pet.  449)  170 
Wheaton  v.  Peters,  8  Pet.  591             480 
Whitten  v.  Tomlinson,  160  U.  S. 

231  777 

Wiley  V.  Sinkler,  179  U.  S.  58         979  n. 
Willson  V.  Blackbird  Creek  Marsh 
Co.,  2  Pet.  245  273 


PAGE 

(Wilson,  Ex  parte,  114  U.  S.  417)  985 
Wisconsin  v.  Pehcan  Ins.  Co.,  127 

U.  S.  265  692 
Wisconsin   Cent.   R.  Co.   v.   Price 

County,  133  U.  S.  496  178 

(Woodruff  V.  Parham,  8  Wall.  123)  334 

Woodruff  V.  Trapnall,  10  How.  190  998 

Wurts  V.  Hoagland,  114  U.  S.  606  203 


Yick   Wo  V.  Hopkins,  118  U.   S. 
356  917 


Zehren  v.  Milwaukee  Electric  R.  & 
L.  Co.,  99  Wis.  83  1058  n. 


CONSTITUTION   OF  THE   UNITED   STATES. 


tijP  ))0OplC  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America. 

ARTICLE   I. 

Section  1.     All  legislative  powers  herein  granted,  shall  be  vested 
in  a  congress  of  the  United  States,  which  shall  consist  of  a  senate   . 
and  house  of  respresentatives. 

Sec.  2.  The  house  of  representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several  states; 
and  the  electors  in  each  state  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  state  legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  j^ears,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  state  in  which  he  shall  be  chosen. 

[Representatives  and  direct  taxes  shall  be  apportioned  among  the  | 
several  states  which  may  be  included  within  this  union,  according  \ 
to  their  respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those  bound  to  ser- 
vice for  a  term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons.]  ^  The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting  of  the  congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  direct.  The  number  of  represent- 
atives shall  not  exceed  one  for  every  thirty  thousand,  but  each  state 
shall  have  at  least  one  representative,  and  until  such  enumeration 
shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled  to 
choose  three,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five.  New  York  six.  New  Jersey  four, 

1  The  clause  included  in  brackets  is  amended  by  the  fourteenth  ameadmeot,  second 
section. 


XXVni  CONSTITUTION    OF   THE   UNITED    STATES. 

Pennsylvania  eight,  Delaware  one,  INIaryland  six,  Virginia  ten, 
North  Carolina  live.  South  Carolina  five,  and  Georgia  three. 

"When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  house  of  representatives  shall  choose  their  speaker  and  other 
officers;  and  shall  have  the  sole  power  of  impeachment. 

Sec.  3.  The  senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  state,  chosen  by  the  legislature  thereof,  for 
six  years;  and  each  senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  tlie 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at  the  expira- 
tion of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second 
year;  and  if  vacancies  happen,  by  resignation  or  otherwise,  during 
the  recess  of  the  legislature  of  any  state,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  till  such  vacancies. 

iSTo  person  shall  be  a  senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
state  for  which  he  shall  be  chosen. 

The  vice-president  of  the  United  States  shall  be  president  of  the 
senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  senate  shall  choose  their  other  officers,  and  also  a  president 
fro  tempore,  in  the  absence  of  the  vice-president,  or  when  he  shall 
exercise  the  office  of  president  of  the  United  States. 

The  senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose  they  shall  be  on  oath  or  affirmation. 
When  the  president  of  the  United  States  is  tried,  the  chief  justice 
shall  preside;  and  no  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any 
office  of  honor,  trust,  or  profit,  under  the  United  States;  but  the 
party  convicted  shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment  and  punishment,  according  to  law. 

Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each  state  by 
the  legislature  thereof,  but  the  congress  may  at  any  time  by  law 
make  or  alter  such  regulations  except  as  to  the  places  of  choosing 
senators. 

The  congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  law  appoint  a  different  day. 


CONSTITUTION    OF   THE   UNITED    STATES.  XXIX 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may- 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time 
CO  time  publish  the  same,  excepting  such  parts  as  may  in  their  judg- 
ment require  secrecy;  and  the  yeas  and  nays  of  the  members  of 
either  house  on  any  question,  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Sec.  6.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid  out  of 
the  treasury  of  the  United  States.  They  shall,  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same ;  and  for  any  speech  or 
debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

No  senator  or  representative  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  office  under  the  authority  of 
the  United  States,  which  shall  have  been  created,  or  the  emolument 
whereof  shall  have  been  increased  during  such  time;  and  no  person 
holding  any  office  under  the  United  States,  shall  be  a  member  of 
either  house  during  his  continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  house 
of  representatives;  but  the  senate  may  propose  or  concur  with 
amendments  as  on  otlier  bills. 

Every  bill  which  shall  have  passed  the  house  of  representatives 
and  the  senate,  shall,  before  it  become  a  law,  be  presented  to  the 
president  of  the  United  States;  if  he  approve  he  shall  sign  it,  but 
if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in  which 
it  shall  have  originated,  who  shall  enter  the  objections  at  large  on 
their  journal  and  proceed  to  reconsider  it.  If,  after  such  reconsid- 
eration two-thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall 
be  sent,  together  with  the  objections,  to  the  other  house,  by  which 
it  shall  likewise  be  reconsidered,  and,  if  approved  by  two-thirds  of 
that  house,  it  shall  become  a  law.  But  in  all  such  cases,  the  votes 
of  both  houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill,  shall  be 
entered  on  the  journal  of  each  house  respectively.     If  any  bill  shall 


XXX  CONSTITUTION   OF   THE   UNITED   STATES. 

not  be  returned  by  the  president  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the 
senate  and  house  of  representatives  may  be  necessary  (except  on  a 
question  of  adjournment)  shall  be  presented  to  the  president  of  the 
United  States;  and  before  the  same  shall  take  effect,  shall  be 
approved  by  him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  senate  and  house  of  representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

Sec.  8.     The  congress  shall  have  power :  — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States ;  but  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities, 
and  current  coin  of  the  United  States; 

To  establish  post-offices  and  post-roads; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies ;  but  no  appropriation  of  money,  to 
that  use,  shall  be  for  a  longer  term  than  two  years; 

To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
union,  suppress  insurrections  and  repel  invasions; 

To  provide  for  organizing,  arming  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the  ser- 
vice of  the  United  States,  reserving  to  the  states  respectively,  the 
appointment  of  the  officers,  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such 


CONSTITUTION   OF   THE   UNITED    STATES.  XXXI 

district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  par- 
ticular states,  and  the  acceptance  of  congress,  become  the  seat  of 
the  government  of  the  United  States,  and  to  exercise  like  authority 
over  all  places  purchased  by  the  consent  of  the  legislature  of  the 
state  in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dock  yards,  and  other  needful  buildings;  —  And 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  constitution  in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof. 

Sec.  9.  The  migration  or  importation  of  such  persons  as  any  of 
the  states  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  congress  prior  to  the  year  one  thousand  eight  hun- 
dred and  eight;  but  a  tax  or  duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when,  in  cases  of  rebellion  or  invasion,  the  public  safety 
may  require  it. 

No" bill  of  attainder  or  ex  post  facto  law,  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  state  over  those  of  another;  nor  shall 
vessels  bound  to  or  from  one  state  be  obliged  to  enter,  clear,  or  pay 
duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence 
of  appropriations  made  by  law;  and  a  regular  statement  and  account 
of  the  receipts  and  expenditures  of  all  public  money  shall  be  pub- 
lished from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States;  and 
no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  the  congress,  accept  of  any  present,  emolu- 
ment, office,  or  title,  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state. 

Sec.  10.  No  state  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration; grant  letters  of  marque  and  reprisal;  coin  money;  emit 
bills  of  credit;  make  anything  but  gold  and  silver  coin  a  tender  in 
payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

No  state  shall,  without  the  consent  of  the  congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws;  and  the  net  produce  of 
all  duties  and  imposts,  laid  by  any  state  on  imports  or  exports,  shall 
be  for  the  use  of  the  treasury  of  the  United  States^  and  all  such 
laws  shall  be  subject  to  the  revision  and  control  of  the  congress. 


XXXll  CONSTITUTION   OF  THE   UNITED   STATES. 

No  state  shall,  without  the  consent  of  congress,  lay  any  duty  of 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  state  or  with  a  foreign  power, 
or  engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay 

ARTICLE   II. 

Section  1.  The  executive  power  shall  be  vested  in  a  president 
of  the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and,  together  with  the  vice-president,  chosen 
for  the  same  term,  be  elected  as  follows:  — 

Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors,  equal  to  the  whole  number  of 
senators  and  representatives  to  which  the  state  may  be  entitled  in 
the  congress;  but  no  senator  or  representative  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

[The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabi- 
tant of  the  same  state  with  themselves.  And  they  shall  make  a  list 
of  all  the  persons  voted  for,  and  of  the  number  of  votes  for  each; 
Avhich  list  they  shall  sign  and  certify,  and  transmit  sealed  to  the 
seat  of  government  of  the  United  States,  directed  to  the  president 
of  the  senate.  The  president  of  the  senate  shall,  in  the  presence  of 
the  senate  and  house  of  representatives,  open  all  the  certificates,  and 
the  votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  president,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  house  of  representatives  shall  immediately  choose, 
by  ballot,  one  of  them  for  president;  and  if  no  person  have  a 
majority,  then  from  the  five  highest  on  the  list,  the  said  house  shall, 
in  like  manner,  choose  the  president.  But  in  choosing  the  presi- 
dent, the  votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote;  a  quorum  for  this  purpose  shall  consist 
of  a  member  or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states  shall  be  necessary  to  a  choice.  In  every 
case,  after  the  choice  of  the  president,  the  person  having  the  greatest 
number  of  votes  of  the  electors  shall  be  the  vice-president.  But  if 
there  should  remain  two  or  more  who  have  equal  votes,  the  senate 
shall  choose  from  them,  by  ballot,  the  vice-president.]  ^ 

The  congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes;  which  day  shall  be  the 
same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 

1  This  clause  has  been  superseded  by  the  twelfth  amendment. 


CONSTITUTION   OF  THE   UNITED   STATES.  XKXlll 

States  at  the  time  of  the  adoption  of  this  constitution,  shall  be 
eligible  to  the  office  of  president;  neither  shall  any  person  be  eli- 
gible to  that  office  who  shall  not  have  attained  to  the  age  of  thirty- 
five  years,  and  been  fourteen  years  a  resident  within  the  United 
States. 

In  case  of  the  removal  of  the  president  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  vice-president,  and 
the  congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  president  and  vice-president, 
declaring  what  officer  shall  then  act  as  president,  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  president 
shall  be  elected. 

The  president  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he  shall 
not  receive  within  that  period  any  other  emolument  from  the  United 
States  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation :  — 

"I  do  solemnly  swear  (or  affirm)  that  T  will  faithfully  execute  the 
office  of  president  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  constitution  of  the  United 
States." 

Sec.  2.  The  president  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
states,  when  called  into  the  actual  service  of  the  United  States;  he 
may  require  the  opinion  in  writing  of  the  principal  officer  in  each 
of  the  executive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices;  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United  States,  except 
in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 
concur;  and  he  shall  nominate,  and,  by  and  with  the  advice  and 
consent  of  the  senate,  shall  appoint  ambassadors,  other  public  min- 
isters and  consuls,  judges  of  the  supreme  court,  and  all  other  officers 
of  the  United  States,  whose  appointments  are  not  herein  otherwise 
provided  for  and  which  shall  be  established  by  law.  But  the  con- 
gress may,  by  law,  vest  the  appointment  of  such  inferior  officers  as 
they  think  proper,  in  the  president  alone,  in  the  courts  of  law,  or 
in  the  heads  of  departments. 

The  president  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  senate,  by  granting  commissions, 
which  shall  expire  at  the  end  of  their  next  session. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  congress  informa- 
tion of  the  state  of  the  union,  and  recommend  to  their  consideration 


XXXIV  CONSTITUTION    OF   THE    UNITED   STATES. 

such  measures  as  lie  shall  judge  necessary  and  expedient.  He  may, 
on  extraordinary  occasions,  convene  both  houses,  or  either  of  them; 
and  in  case  of  disagreement  between  them,  with  respect  to  the  time 
of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper.  He  shall  receive  ambassadors  and  other  public  min- 
isters. He  shall  take  care  that  the  laws  be  faithfully  executed;  and 
shall  commission  all  the  officers  of  the  United  States. 

Sec.  4.  The  president,  vice-president,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

ARTICLE   III. 

Section  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts  as  the  con- 
gress may,  from  time  to  time,  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior;  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation  which  shall  not  be  diminished  during  their 
continuance  in  office. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority ;  to  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdiction; 
to  controversies  to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  states,  between  a  state  and  citi- 
zens of  another  state,  between  citizens  of  different  states,  between 
citizens  of  the  same  state  claiming  lands  under  grants  of  different 
states,  and  between  a  state,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  Avhich  a  state  shall  be  part}-,  the  supreme 
court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  supreme  court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  such  regu- 
lations as  the  congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed;  but  when  not  committed  within 
any  state,  the  trial  shall  be  at  such  place  or  places  as  the  congress 
may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court. 


CONSTITUTION   OF   THE   UNITED    STATES.  XXXV 

The  congress  shall  have  power  to  declare  the  punishment  of  trea- 
son, but  no  attainder  of  treason  shall  work  corruption  of  blood,  or 
forfeiture,  except  during  the  life  of  the  person  attainted. 

ARTICLE   IV. 

Section  1.  Full  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  congress  may,  by  general  laws,  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

Sec.  2.  The  citizens  of  each  state  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  state  having  juris- 
diction of  the  crime. 

No  person  held  to  service  or  labor  in  one  state,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

Sec.  3.  New  states  may  be  admitted  by  the  congress  into  this 
union;  but  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states,  or  parts  of  states,  without  the  con- 
sent of  the  legislatures  of  the  states  concerned,  as  well  as  of  the 
congress. 

The  congress  shall  have  power  to  dispose  of,  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States;  and  nothing  in  this  constitution 
shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States  or  of  any  particular  state. 

Sec.  4.  The  United  States  shall  guaranty  to  every  state  in  this 
union,  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion ;  p,nd  on  application  of  the  legislature,  or  of 
the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

ARTICLE   V. 

The  congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  constitution,  or,  on  the 
application  of  the  legislatures  of  two-thirds  of  the  several  states, 
shall  call  a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  con- 
stitution, when  ratified  by  the  legislatures  of  three-fourths  of  the 


XXXVl  CONSTITUTION   OP  THE   UNITED    STATES. 

several  states,  or  by  conventions  in  three -fourths  thereof,  as  the  one 
or  the  other  mode  of  ratification  may  be  proposed  by  the  congress; 
provided,  that  no  amendment,  which  may  be  made  prior  to  the  year 
one  thousand  eight  hundred  and  eight,  shall  in  any  manner  affect 
the  first  and  fourth  clauses  in  the  ninth  section  of  the  first  article ; 
and  that  no  state,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  senate. 

ARTICLE   VI. 

All  debts  contracted,  and  engagements  entered  into,  before  the 
adoption  of  this  constitution,  shall  be  as  valid  against  the  United 
States,  under  this  constitution,  as  under  the  confederation. 

This  constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges*  in  every  state  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and  the  mem- 
bers of  the  several  state  legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  of  the  several  states,  shall  be 
bound  by  oath  or  affirmation,  to  support  this  constitution;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to  any  office 
or  public  trust  under  the  United  States. 

ARTICLE   VII. 

The  ratification  of  the  conventions  of  nine  states,  shall  be  suffi- 
cient for  the  establishment  of  this  constitution  between  the  states 
so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  states  present, 
the  seventeenth  day  of  September,  in  the  year  of  our  Lord  one 
thoiisand  seven  hundred  and  eighty-seven,  and  of  the  independ- 
ence of  the  United  States  of  America  the  twelfth.  In  xvitness 
whereof,  we  have  hereunto  subscribed  our  names. 

[Signed  by]  George  Washington,  President, 

and  Deptity  from  Virginia^ 
and  by  thirty-nine  delegates. 


CONSTITUTION   OF   THE   UNITED    STATES.  XXXVll 


ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF, 

THE   CONSTITUTION    OF   THE    UNITED 

STATES    OF   AMERICA. 


ARTICLE    I. 


Congress  shall  make  uo  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people  peace- 
ably to  assemble,  and  to  petition  the  government  for  a  redress  of 
grievances. 

ARTICLE  XL 

A  well  regulated  militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

ARTICLE   HI. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner;  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE   IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonal)le  searches  and  seizures,  shall 
not  be  violated;  and  no  warrants  shall  issue,  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE   V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service,  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject,  for  the  same  offence,  to  be  twice  ])ut  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled,  in  anj'  criminal 
case,  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  lib- 
erty, or  property,  without  due  process  of  law:  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation. 


XXXviii  CONSTITUTION   OF   THE   UNITED   STATES. 


ARTICLE   VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him:  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor;  and  to  have  the  assistance  of  counsel  for  his 
defence. 

ARTICLE    VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved; 
and  no  fact,  tried  by  a  jury,  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE   VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE   IX. 

The  enumeration  in  the  constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE   X. 

The  powers  not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  respec- 
tively, or  to  the  people. 

ARTICLE   XI. 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state. 

ARTICLE   XII. 

Section  1.  The  electors  shall  meet  in  their  respective  states  and 
vote  by  ballot  for  president  and  vice-president,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with  themselves; 
they  shall  name  in  their  ballots  the  person  voted  for  as  president, 
and  in  distinct  ballots  the  person  voted  for  as  vice-president;  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as  president, 
and  of  all  persons  voted  for  as  vice-president,  and  of  the  number  of 


CONSTITUTION    OF   THE   UNITED    STATES.  XXxix 

votes  for  each,  which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  tathe  seat  of  the  government  of  the  United  States,  directed  to 
the  president  of  the  senate :  —  the  president  of  the  senate  shall,  in  the 
presence  of  the  senate  and  house  of  representatives,  open  all  the  cer- 
titicafces,  and  the  votes  shall  then  be  counted; — the  person  having 
the  greatest  number  of  votes  for  president,  shall  be  the  president, 
if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  no  person  have  such  majority,  then  from  the  per- 
sons having  the  highest  numbers,  not  exceeding  three,  on  the  list  of 
those  voted  for  as  president,  the  house  of  representatives  s^iall 
choose  immediately,  by  ballot,  the  president.  But  in  choosing  the 
president,  the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states  shall  be  necessary  to  a  choice.  And  if  the 
house  of  representatives  shall  not  choose  a  president,  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  vice-president  shall  act  as  presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional  disability  of 
the  president.  The  person  having  the  greatest  number  of  votes  as 
vice-president,  shall  be  the  vice-president,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed;  and  if  no 
person  have  a  majority,  then  from  the  two  highest  numbers  on  the 
list,  the  senate  shall  choose  the  vice-president;  a  quorum  for  the 
purpose  shall  consist  of  two-thirds  of  the  whole  number  of  senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 
But  no  person  constitutionally  ineligible  to  the  office  of  president, 
shall  be  eligible  to  that  of  vice-president  of  the  United  States. 

ARTICLE  XIII. 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States,  and  of  the  state  wherein  they  reside.  No  state  shall  make 
or  enforce  any  law  which  sliall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 


xl  CONSTITUTION   OF  THE   UNITED   STATES. 

Sec.  2.  Eepresentatives  shall  be  apportioned  among  the  several 
states  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  state,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
president  and  vice-president  of  the  United  States,  representatives 
in  congress,  the  executive  and  judicial  officers  of  a  state,  or  the 
members  of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  state,  being  twenty-one  years  of  age,  and  citi- 
zens of  the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  state. 

Sec.  3.  No  person  shall  be  a  senator  or  representative  in  con- 
gress, or  elector  of  president  and  vice-president,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  state,  who, 
having  previously  taken  an  oath,  as  a  member  of  congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  state  legislature, 
or  as  an  executive  or  judicial  officer  of  any  state,  to  support  the  con- 
stitution of  the  United  States,  shall  have  engaged  in  insurrection 
or  rebellion  against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  congress  may,  by  a  vote  of  two-thirds  of  each  house, 
remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
state  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any  claim  for 
loss  or  emancipation  of  any  slave;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

ARTICLE   XV. 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  state 
on  account  of  race,  color,  or  previous  condition  of  servitude. 

Sec.  2.  The  congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 


[The  first  ten  of  these  amendments  were  proposed  by  congress 
(with  others  which  were  not  ratified  by  three-fourths  of  the  legisla- 
tures of  the  several  states),  by  resolution  of  1789,  and  were  ratified 
before  1791.     The  eleventh  amendment  was  proposed  by  congress  by 


CONSTITUTION   OF   THE    UNITED   STATES.  xli 

resolution  of  the  year  1794,  and  was  ratified  before  1796.  The 
twelfth  article  was  proposed  by  congress  by  resolution  of  October, 
1803,  and  was  ratified  before  September,  1804.  The  thirteenth 
article  was  proposed  by  congress,  by  resolution,  of  the  year  1865, 
and  was  ratified  before  December  18,  1865.  The  fourteenth  article 
was  proposed  by  congress,  by  resolution,  of  the  year  1866,  and  was 
ratified  before  the  20th  day  of  July,  1868.  The  fifteenth  article  was 
proposed  by  congress,  by  resolution,  of  the  year  1869,  and  was 
ratified  before  the  30th  day  of  March,  1870.] 


CASES 

ON 

CONSTITUTIONAL    LAW. 


CHAPTER  I. 

NATURE  OF  THE  FEDERAL  CONSTITUTION   AND  ITS 
AMENDMENTS. 


Mcculloch  v.  Maryland. 

4  Wheaton,  310 ;  4  Curtis,  415.     1819. 

[This  was  a  suit  in  the  courts  of  Maryland,  by  that  State  against 
plaintiff  in  error,  as  cashier  of  the  Baltimore  branch  of  the  Bank 
of  the  United  States,  to  recover  taxes  claimed  to  be  due  under  a  statute 
of  Maryland.  Defendant  questioned  the  validity  of  such  statute, 
and  on  judgment  being  rendered  against  him,  brought  the  case  to 
this  court  by  writ  of  error.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

In  the  case  now  to  be  determined,  the  defendant,  a  sovereign  State, 
denies  the  obligation  of  a  law  enacted  by  the  legislature  of  the  Union  ; 
and  the  plaintiff,  on  his  part,  contests  the  validity  of  an  act  which 
has  been  passed  by  the  legislature  of  that  State.  The  Constitution 
of  our  country,  in  its  most  interesting  and  vital  parts,  is  to  be  con- 
sidered ;  the  conflicting  powers  of  the  government  of  the  Union  and 
of  its  members,  as  marked  in  that  Constitution,  are  to  be  discussed ; 
and  an  opinion  given,  which  may  essentially  influence  the  great 
operations  of  the  government.  No  tribunal  can  approach  such  a 
question  without  a  deep  sense  of  its  importance,  and  of  the  awful 
responsibility  involved  in  its  decision.  But  it  must  be  decided 
peacefully,  or  remain  a  source  of  hostile  legislation,  perhaps  of 
hostility  of  a  still  more  serious  nature  ;  and  if  it  is  to  be  so  decided, 
by  this  tribunal  alone  can  the  decision  be  made.  On  the  supreme 
court  of  the  United  States  has  the  Constitution  of  our  country  devolved 
this  important  duty. 

The  first  question  made  in  the  cause  is,  has  Congress  power  to 
incorporate  a  bank  ? 

1 


2  NATURE  OF  THE  FEDERAL  CONSTITUTION,  ETC.   [CHAP.  I. 

It  lias  been  tnily  said,  that  this  can  scarcely  be  considered  as  an 
open  question,  entirely  unprejudiced  by  the  former  proceedings  of  the 
nation  respecting  it.  The  principle  now  contested  was  introduced 
at  a  very  early  period  of  our  history,  has  been  recognized  by  many 
successive  legislatures,  and  has  been  acted  upon  by  the  judicial 
department,  in  cases  of  peculiar  delicacy,  as  a  law  of  undoubted 
obligation. 

It  will  not  be  denied  that  a  bold  and  daring  usurpation  might  be 
resisted,  after  an  acquiescence  still  longer  and  more  complete  than 
this.  But  it  is  conceived  that  a  doubtful  question,  one  on  which 
human  reason  may  pause,  and  the  human  judgment  be  suspended, 
in  the  decision  of  which  the  great  principles  of  liberty  are  not  con- 
cerned, but  the  respective  powers  of  those  who  are  equally  the  repre- 
sentatives of  the  people,  are  to  be  adjusted,  if  not  put  at  rest  by  the 
practice  of  the  government,  ought  to  receive  a  considerable  impres- 
sion from  that  practice.  An  exposition  of  the  Constitution,  deliber- 
ately established  by  legislative  acts,  on  the  faith  of  which  an  immense 
property  has  been  advanced,  ought  not  to  be  lightly  disregarded. 

The  power  now  contested  was  exercised  by  the  first  Congress 
elected  under  the  present  Constitution.  The  bill  for  incorporating 
the  Bank  of  the  United  States  did  not  steal  upon  an  unsuspecting 
legislature,  and  pass  unobserved.  Its  principle  was  completely 
understood,  and  was  opposed  with  equal  zeal  and  ability.  After 
being  resisted,  first  in  the  fair  and  open  field  of  debate,  and  after- 
wards in  the  executive  cabinet,  with  as  much  persevering  talent  as 
any  measure  has  ever  experienced,  and  being  siipported  by  arguments 
which  convinced  minds  as  pure  and  as  intelligent  as  this  country 
can  boast,  it  became  a  law.  The  original  act  was  permitted  to  ex- 
pire ;  but  a  short  experience  of  the  embarrassments  to  which  the 
refusal  to  revive  it  exposed  the  government,  convinced  those  who 
were  most  prejudiced  against  the  measure  of  its  necessity,  and 
induced  the  passage  of  the  present  law.  It  would  require  no  ordinary 
share  of  intrepidity  to  assert  that  a  measure  adopted  under  these 
circumstances  was  a  bold  and  plain  usurpation,  to  which  the  Con- 
stitution gave  no  countenance. 

These  observations  belong  to  the  cause  :  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the  law 
would  be  found  irreconcilable  with  the  Constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Maryland 
have  deemed  it  of  some  importance,  in  the  construction  of  the  Con- 
stitution, to  consider  that  instrument  not  as  emanating  from  the 
people,  but  as  the  act  of  sovereign  and  independent  States.  The 
powers  of  the  general  government,  it  has  been  said,  are  delegated 
by  the  States,  who  alone  are  truly  sovereign  ;  and  must  be  exercised 
in  subordination  to  the  States,  who  alone  possess  supreme  dominion. 

It  Avould  be  difficult  to  sustain  this  proposition.  The  convention 
which  framed  the  Constitutiou  was,  indeed,  elected  by  the   State 


CHAP.  I.] 


Mcculloch  v.  Maryland. 


legislatures.     But  the  instniment,  when  it  came  from  their  hands, 
was  a  mere  proposal^withovrE^obligation,   orj)retensions  to  it.  ^^ 
^v^  reported  to  the  tlien  existjng  Congress  of  the  United  States,  with 
a  request  that  it  might  "  be  submitted  to  a  convention  of  delegates, 
chosen  in  each  State,  by  the  peo})le  thereof,  under  the  recommenda- 
tion of  its  legislature,  for  their  assent  and  ratilication."     This  mode^ 
of   proceeding   was  adopted;    and  by  the  convention,    by   congress,) 
and  by  the  State  legislatures,  the  instrument  was  s"ul)niitted  toTTie'N 
"people.     They  acted  upon  it,  in  the  only  manner  in  which  they  can  j 
act  safely^  effectively,  "ancTwisely,  on  such  a  subject,  by  assembling - 
in  convention.     It  is  true,  they  assembled  in  their  Several  States]" 
an3rwhere^se  should  they  have  assembled  ?     No  political  dreamer 
was  ever  wild  enough  to  think  of   breaking  down  the  lines  which 
separate  the  States,  and  of  compounding  the  American  people  into 
one  cojnmon  mass.     Of  consequence,  when  they  act,  they  act  in  their 
States.     But  the  measures  they  adopt  do  not,  on  that  account,  cease 
to  be  the  measures  of  the  people  themselves,  or  become  the  measures 
of  the  State  governments. 

From  these  conventions  the  Constitution  derives  its  whole  authority. 
Tli^govermnent  proceeds  dii-ectly  from  the  people ;  is  "  ordained 
and  established  "  in  the  name  of  the  people  ;  and  is  declared  to  be 
ordained,  "in  order  to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquillity,  and  secure  the  blessings  of  liberty  to 
themselves  and  to  their  posterity."  The  assent  of  the  States,  in  their 
sovereign  capacity,  is  implied  in  calling  a  convention,  and  thus  sub- 
mitting that  instrument  to  the  people.  But  the  peoplejwere  at 
perfect  liberty  to_  accept  or  reject  it;  and  their  act  was  final.  It 
required  not  the  affirmance,  and  could  not  he  negatiyed.ljy^he  State 

adopted,  was  of  complete 


governments.     The  ConsIttIItiQn3Lhei 
o^ITgation,  and  bound  the  State_soyereignties. 

It  has  been  said,  that  the  people  had  already  surrendered  all  their 
powers  to  the  State  sovereignties,  and  had  nothing  more  to  give. 
But,  surely,  the  question  whether  they  may  resume  and  modify  the 
powers  granted  to  government,  does  not  remain  to  be  settled  in  this 
country.  Much  more  might  the  legitimacy  of  the  general  govern- 
ment be  doubted,  had  it  been  created  by  the  States.  The  powers 
delegated  to  the  State  sovereignties  were  to  be  exercised  by  them- 
selves, not  by  a  distinct  and  independent  sovereignty,  created  by 
themselves.  To  the  formation  of  a  league,  such  as  was  the  con-j 
federation,  the  State  sovereignties  were  certainly  competent.  Bun 
when,  "in  order  to  form  a  more  perfect  union,"  it  was  deemed  neces- 
sary to  change  this  alliance  into  an  effective  government,  possessing 
great  and  sovereign  powers,  and  acting  directly  on  the  people,  the 
necessity  of  referring  it  to  the  people,  and  of  deriving  its  powers 
directly  from  them,  was  felt  and  acknowledged  by  all. 

The  government  of  the  Union,  then,  (whatever  may  be  the  influence 
of  this  fact  on  the  case,)  is,  emphatically  and  truly,  a  government  of 


C^ 


\- 


^ 


t 


NATURE  OF  THE  FEDERAL  CONSTITUTION,  ETC.   [CHAP,  I. 


the  people.  In  form  and  in  substance  it  emanates  from  them.  Its 
powers  are  granted  by  them,  and  are  to  be  exercised  directly  on  them, 
and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle,  that  it  can  exercise  only  the  powers  granted 
to  it,  would  seem  too  apparent  to  have  required  to  be  enforced  by  all 
those  arguments  which  its  enlightened  friends,  while  it  was  depending 
before  the  people,  found  it  necessary  to  urge.  That  principle  is  now 
universally  admitted.  But  the  question  respecting  tlie  extent  of  the 
powers  actually  granted  is  perpetually  arising,  and  will  probably  con- 
tinue to  arise,  as  long  as  our  system  shall  exist. 

In  discussing  these  questions,  the  conflicting  powers  of  the  general 
and  State  governments  must  be  brought  into  view,  and  the  supremacy 
of  their  respective  laws,  when  they  are  in  opposition,  must  be  settled. 

If  any  one  proposition  could  command  the  universal  assent  of  man- 
kind, we  might  expect  it  would  be  this :  that  the  ^government  of  the 
Union,  though  limited  in  its  powers,  is  supreme  within  its  sphere  of 
action.  This  would  seem  to  result  necessarily  from  its  nature.  It  is 
the  government  of  all ;  its  powers  are  delegated  by  all ;  it  represents 
all,  and  acts  for  all.  Though  any  one  State  may  be  willing  to  control 
its  operations,  no  State  is  willing  to  allow  others  to  control  them.  The 
nation,  on  those  subjects  on  which  it  can  act,  mu^t  necessarily  bind 
its  component  parts.  But  this  question  is  not  left  to  mere  reason : 
the  peoj^le  have,  in  express  terms,  decided  it^Jjy  saying.  '-^  this  Consti- 

Xjon^  ancF  tlie  laws  of  the  United  5tat£&,_wluch_  shall  be  made  in 
pursuance  thereof/^  <' shall  be  the^juprfimfi-hia:  of  the  land,"  and  by 
T^qnifing    t^'"?T~P^^~^^"'''"»^''g    ^t'  thft^^at.P  1pcrisla.t.iiresj_and    the  officerT 


oftHe~executive~ana  judicial  departments  of  the  States,  shall  take  the 
oath  of  fidelity  tolE 

The  governnienE  of  the  United  States,  then,  though  limited  in  its 
powers,  is  supreme ;  and  its  laws,  when  made  in  pursuance  of  the  Con- 
stitution, form  the  supreme  law  of  the  laud,  "  any  thing  in  the  constitu- 
tion or  laws  of  any  Sta'e  to  the  contrary  notwithstanding." 

Among  the  enumerated  powers  we  do  not  find  that  of  establishing 
a  bank  or  creating  a  corporation.  But  there  is  no  phrase  in  the 
instrument  which,  like  the  articles  of  confederation,  excludes  inci- 
dental or  implied  powers ;  and  which  requires  that  every  thing  granted 
shall  be  expressly  and  minutely  described.  Even  the  10th  amend- 
1  ment,  which  was  framed  for  the  purpose  of  quieting  the  excessive 
jealousies  which  had  been  excited,  omits  the  word  "expressly,"  and 
declares  only  that  the^  powers  "not  delegated  ^o_th^_United_States^ 
nor  prohibited  to  the  States,  are  reserved  to  the  States  or  to  the^ 
people ; "  thus  leaving  the  question,  whether  the  particular  power 
which  ma^  become  the  subject  of  contest,  has  been  delegated  to  the 
one  government,  or  prohibited  to  the  other,  to  depend  on  a  fair  con- 
struction of  the  whole  instrument.  The  men  who  drew  and  adopted 
this    amendment,  had   experienced    the   embarrassments    resulting   from 


1 


CHAP.  I.]  Mcculloch  v.  Maryland.  5 

the  insertion  of  this  word  in  the  articles  of  confederation,  and 
probably  omitted  it  to  avoid  those  embarrassments.  A  constitution, 
to  contain  an  accurate  detail  of  all  the  subdivisions  of  which  its  great 
powers  will  admit,  and  of  all  the  means  by  which  they  may  be 
carried  into  execution,  would  jjartake  of  the  prolixity  of  a  legal  code, 
and  could  scarcely  be  embraced  by  the  human  mind.  It  would  prob- 
ably never  be  understood  by  the  public.  jts_nature,  therefore,  requires, 
that  only  its  great  outlines  should  belriarkecT,  its  important  objectsT 
^sTgnated,  and   the  minor   ingredients  wliichconTpose  those"  objects) 

~5e~deduced  from  the  nature  of  the  objects  themselves.  That  this 
idea  was  entertained  by  the  franiers  of  the  American  Constitution, 
is  not  only  to  be  inferred  from  the  nature  of  the  instrument,  but 
from  the  language.  Wiiy  else  were  some  of  the  limitations,  found 
in  the  9th  section  of  the  1st  article,  introduced  ?  It  is  also,  in  some 
degree,  warranted  by  their  having  omitted  to  use  any  restrictive 
term  which  might  prevent  its  receiving  a  fair  and  just  interpretation. 
In  considering  this  question,  then,  we  must  never  forget,  that  it  is  a 
cons-titution  we  are  expounding. 

Although,  among  the  enumerated    powers  of  government,  we  do. 
not  find   the  word  "bank,"  or  "incorporation,"  we  find   the   great \\ 
powers  to  lay  and  collect  taxes;  to  borrow  money ;  to  regulate  com-  n 
merce ;    toJecTare  and  conduct  a  war;  and   to    raise   and   supports 
^■mies  and  navies.     The  sword  and  the  purse,  all  the  external   rela- 

~l;ions,  and  no  inconsiderable  portion  of  the  industry  of  the  nation, 
are  intrusted  to  its  government.  It  can  never  be  pretended  that 
these  vast  powers  draw  after  them  others  of  inferior  importance, 
merely  because  they  are  inferior.  Such  an  idea  can  never  be  ad- 
vanced. Bat  it  may,  with  great  reason,  be  contended,  that  .g;,,ggyern-''. 
ment,  intrusted  with  such  ample  jx)wers,  on  the  due  execution^of  i 
which  the  happiness  and  prosperity  of  the  nation  so  vitally  depends,  i 
niust  also  be  intrusted  with  ample  means  for  their  execution.  The 
power  being  given,  it  is  the  Interest  of  the  nation  to  facilitate  its 
execution.  It  can  never  be  their  interest,  and  cannot  be  presumed 
to  have  been  their  intention,  to  clog  and  embarrass  its  execution  by 
withholding  the  most  appropriate  means.  Throughout  this  vast 
republic,  from  the  St.  Croix  to  the  Gulf  of  Mexico,  from  the  Atlantic 
to  the  Pacific,  revenue  is  to  be  collected  and  expended,  armies  are 
to  be  marched  and  supported.  The  exigencies  of  the  nation  may 
require  that  the  treasure  raised  in  the  North  should  be  transported 
to  the  South,  that  raised  in  the  East  conveyed  to  the  West,  or  that 
this  order  should  be  reversed.  Is  that  construction  of  the  Constitution 
to  be  preferred  which  would  render  these  operations  difficult,  hazard- 
ous, and  expensive  ?  Can  we  adopt  that  construction,  (unless  the 
words  imperiously  require  it.)  which  would  impute  to  the  framers 
of  that  instrument,  when  granting  these  powers  for  the  public 
good,  the  intention  of  impeding  their  exercise  by  withholding  a 
choice  of  means  ?     If,  indeed,  such  be  the  mandate  of  the  Coustitu- 


C         NATURE  OF  THE  FEDERAL  CONSTITUTION,  ETC.   [CHAP.  I. 

tion    we  have  only  to  obey  ;  but  that  instrument  does   not  profess  . 

f^  enumera.te  the  means  by  which  the  powers  it  confe_rs  may  be. 
executed 4, nor  does  it  prohibit  the  creation  ot  a  corporation,  if  the 
"existence^of  such  a  being  be  essential  to  the  beneficial  exercise  of 
those  powers.  It  is,  then,  the  subject  of  fair  inquiry,  how  far  such 
means  may  be  employed. 

It  is  not  denied  that  the  powers  given  to  the  government  imply 
(  the  ordinary  means  of  execution.  That,  for  example,  of  raising 
revenue,  and  applying  it  to  national  purposes,  is  admitted  to  imply 
the  power  of  conveying  money  from  place  to  place,  as  the  exigencies 
of  the  nation  may  require,  and  of  employing  the  usual  means  of 
conveyance.  But  it  is  denied  that  the  government  has  its  choice  of 
n  means;  or,  that  it  may  employ  the  most  convenient  means,  if,  to 
employ  them,  it  be  necessary  to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest  ?  On  this  alone : 
.  The  power  of  creating  a  corporation,  is  one  appertaining  to  sover- 
/  eignty,  and  is  not  expressly  conferred  on  Congress.  This  is  true. 
But  all  legislative  powers  appertain  to  sovereignty.  The  original 
power  of  giving  the  law  on  any  subject  whatever,  is  a  sovereign 
power;  and  if  the  government  of  the  Union  is  restrained  from 
creating  a  corporation,  as  a  means  for  performing  its  functions,  on 
the  single  reason  that  the  creation  of  a  corporation  is  an  act  of  sov- 
ereignty;  if  the  sufficiency  of  this  reason  be  acknowledged,  there 
would  be  some  difficulty  in  sustaining  the  authority  of  Congress  to 
pass  other  laws  for  the  accomplishment  of  the  same  objects. 

The  government  which  has  a  right  to  do  an  act,  and  has  imposed 
on  it  the  duty  of  performing  that  act,  must,  according  to  the  dictates 
of  reason,  bo  allowed  to  select  the  means  ;  and  those  who  contend 
that  it  may  not  select  any  appropriate  means,  that  one  particular 
mode  of  effecting  the  object  is  excepted,  take  upon  themselves  the 
burden  of  establishing  that  exception. 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sovereignty. 
This  is  admitted.  But  to  what  portion  of  sovereignty  does  it  apper- 
tain  ?  Does  it  belong  to  one  more  than  to  another  ?__Jii_Ai2i£iJ£av 
/th£^  powers  of  _a[U£ex&i^mll_J^re  divided  between_the  government  of 
j  the  Union  and  those  of  the  States.  They  are  each  sovereign,  with 
respect  to  the  objects  "com mMeH!  to  it,  and  neither  sovereign  with 
respect  to  the  objects  committed  to  the  other.  We  cannot  compre- 
hend that  train  of  reasoning  which  would  maintain  that  the  extent 
of  power  granted  by  the  people  is  to  be  ascertained,  not  by  the 
nature  and  terms  of  the  grant,  but  by  its  date.  Some  State  constitu- 
tions were  formed  before,  some  since  that  of  the  United  States.  We 
cannot  believe  that  their  relation  to  each  other  is  in  any  degree 
dependent  upon  this  circumstance.  Their  respective  powers  must, 
we  think,  be  precisely  the  same  as  if  they  had  been  formed  at  the 
same  time.  Had  they  been  formed  at  the  same  time,  and  had  the 
people  conferred  on  the  general  government  the  power  contained  in 


CHAP.  I.]  Mcculloch  v.  Maryland.  7 

the  Constitution,  and  on  the  States  the  whole  residuum  of  power, 
would  it  have  been  asserted  that  the  government  of  the  Union  was 
not  sovereign  with  respect  to  those  objects  which  were  intrusted  to 
it,  in  relation  to  which  its  laws  were  declared  to  be  supreme  ?  If 
this  could  not  have  been  asserted,  we  cannot  well  comprehend  the 
process  of  reasoning  which  maintains,  that  a  power  appertaining  to 
sovereignty  cannot  be  connected  with  that  vast  portion  of  it  which  is 
granted  to  the  general  government,  so  far  as  it  is  calculated  to  sub- 
serve the  legitimate  objects  of  that  government.  The  power  of  creat- , 
jng  a  corporation,  though  appertaining  to  sovereignty,  is  not^  like  the 
_power  of  making  war.,  or  levying  taxes,  or  of  regulating  conrmprPitL  a  , 
great  substantive  and  independent  power,  which  cannot  be  impliedjis^ 
incidental  to  other  powers,  or  used  as  a  means  of  executingtli  e  m.  It 
is  never  the  end  for  which  other  powers  are  exercised,  but  a  means 
by  whif^h  other  objects  are  accomplished.  N"o  contributions  are  made 
to  charity  for  the  sake  of  an  incorporation,  but  a  corporation  is 
created  to  administer  the  charity ;  no  seminary  of  learning  is  in- 
stituted in  order  to  be  incorporated,  but  the  corporate  character  is 
conferred  to  subserve  the  purposes  of  education.  No  city  was  ever 
built  with  the  sole  object  of  being  incorporated,  but  is  incorporated 
as  affording  the  best  means  of  being  well  governed.  The  power  of 
creating  a  corporation  is  never  used  for  its  own  sake,  but  for  the 
purpose  of  effecting  something  else.  JSTo  sufficient  reason  is,  there- 
fore, perceived,  why  it  may  not  pass  as  incidental  to  those  powers 
which  are  expressly  given,  if  it  be  a  direct  mode  of  executing  them. 

But  the  Constitution  of  the  United  States  has  not  left  the  right  of 
Congress  to  employ  the  necessary  means,  for  the  execution  of  the 
powers  conferred  on  the  government,  to  general  reasoning.  To  its 
enumeration  of  powers  is  added  that  of  making  _^^  all  laws  \yhich  shall 
be  necessary  and  proper,  for  carrying  into  execution  the  foregoing  j 
^^wers,  an_d_all  other  powers  vested  by  this  Constitution,  in~~tlie  J 
governmelit  of  the  United  States,  or  in  any  department  thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various  argu- 
ments, to  prove  that  this  clause,  though  in  terms  a  grant  of  power,  is 
not  so  in  effect;  but  is  really  restrictive  of  the  general  right,  wliich 
might  otherwise  be  implied,  of  selecting  means  for  executing  the 
enumerated  powers. 

In  support  of  this  proposition,  they  have  found  it  necessary  to  con- 
tend that  this  clause  was  inserted  for  the  purpose  of  conferring  on        (J 
Congress  the  power  of  making  laws.     Tluat,  without  it,  doubts  might 
be  entertained,  whether  Congress  could  exercise  its  powers  in  the  furm 
of  legislation. 

But  could  this  be  the  object  for  which  it  was  inserted  ?  A  govern- 
ment is  created  by  the  people,  having  legislative,  executive,  and  judi- 
cial powers.  Its  legislative  powers  are  vested  in  a  Congress,  which  is 
to  consist  of  a  Senate  and  House  of  Representatives.  Each  liouse  may 
determine  the  rule  of  its  proceedings  ;  and  it  is  declared  that  every 


8  NATURE   OF  THE    FEDERAL   CONSTITUTION,    ETC.       [CHAP.  I, 

bill  which  shall  have  passed  both  houses,  shall,  before  it  becomes  a 
law,  be  presented  to  the  President  of  the  United  States.     The  7tb 
section  describes  the  course  of  proceedings,  by  which  a  bill  shall  be- 
come a  law;  and,  then,  the  8th  section  enumerates  the  powers  of 
Congress.  _  Could  it_be   necessary  to  say  that  a  legislature   shoukl. 
^exercise  legislative  powers,  in  the  shape  of  legislation  ?    Afterjillow- 
j  mg  each  house  to  prescribe  jtslowneourse"^^  proceediug^_after  describ- 
7  ing  the  manner  inwliigh  a  bill  should  become  a  law,  would  it  have 
^    entered  into  the  mind^of  a  sijigle  member  of  the  convention,  thatj 
(    an  express  power  to  make  laws  was  necessary  to"enable  the  iegisTa- 
)    til  re  to  make  them  ?     That  a  legislature,  endowed  with  legislative 
\    powers,  can  legislate,  is  a  proposition  too  self-evident  to  have  been 
.questioned. 

But  the  argument  on  which  most  reliance  is  placed,  is  drawn  from 

the  peculiar  language  of  this  clause.     Congress  is  not  empowered  by 

it  to  make  all  laws  which  may  have  relation  to  the  powers  conferred 

on  the  government,  but  such  only  as  may  be  "  necessary  and  proper  " 

for  carrying  them  into  execution.    The  word  "  necessary  "  is  considered 

/as  controlling  the  whole  sentence,  and  as  limiting  the  right  to  pass  laws 

j  for  the  execution  of  the  granted  powers,  to  such  as  are  indispensable, 

^l  and  without  which  the  power  would  be  nugatory.     That  it  excludes 

\  the  choice  of  means,  and  leaves  to  Congress,  in  each  case,  that  only 

f    which  is  most  direct  and  simple. 

I  Is  it  true  that  this  is  the  sense  in  which  the  word  ''  necessary  "  is 
always  used?  Does  it  always  import  an  absolute  physical  necessity, 
so  strong,  that  one  thing,  to  which  another  may  be  termed  necessary, 
cannot  exist  without  that  other  ?  We  think  it  does  not.  If  reference 
be  had  to  its  use,  in  the  common  affairs  of  the  world,  or  in  approved 
authors,  we  find  that  it  frequently  imports  no  more  than  that  one 
thing  is  convenient,  or  useful,  or  essential  to  another.  To  employ  the 
means  ^necessary  to  an  end«_ is  generally  understood  as  employing_ 
any  means,  calculatedjto  produce  the  end,  and  not  as  being  confined 
to  those  single  means^without  which  the  end  would  be^ntirely  un- 
attainable.  Such  is  the  character~of~tnn3ljnanguage,  that  no  word 
conveys  to  the  mind,  in  all  situations,  one  single  definite  idea;  and 
nothing  is  more  common  than  to  use  words  in  a  figurative  sense. 
Almost  all  compositions  contain  words,  which,  taken  in  their  rigorous 
_i^  sense  would  convey  a  meaning  different  from  that  which  is  obviously 

"y  intended.     It  is  essential  to  just  construction,  that  many  words  which 

import  something  excessive,  should  be  understood  in  a  more  miti- 
gated sense  — in  that  sense  which  common  usage  justifies.  The  word 
"  necessary "  is  of  this  description.  It  has  not  a  fixed  character 
peculiar  to  itself.  It  admits  of  all  degrees  of  comparison;  and  is 
often  connected  with  other  words,  which  increase  or  diminish  the 
impression  the  mind  receives  of  the  urgency  it  imports.  A  thing 
may  be  necessary,  very  necessary,  absolutely  or  indispensably  neces- 
sary.    To  no  mind  would  the  same  idea  be  conveyed,  by  these  several 


CHAP.  I.]  Mcculloch  v.  Maryland,  9 

phrases.  This  comment  on  the  word  is  well  illustrated,  by  the 
passage  cited  at  the  bar,  from  the  10th  section  of  the  1st  article  of 
the  Constitution.  It  is,  we  think,  impossible  to  compare  the  sentence 
which  prohibits  a  State  from  laying  "imposts,  or  duties  on  imports 
or  exports,  except  what  may  be_iibsolutely  necessary  for  executing  its 
.inspention  laws/'  with  that  whiclT^uthorizes  Congress  "  to  make  all 
laws  which  shall  be  necessary  and  j)roper  Jtqr^  carrying  into-^execji- 
tion  "  the  powers  of  the  general  government,  without  feeling  a  con- 
viction that  the  convention  understood  itself  to  change  materially  the 
meaning  of  the  word  ''necessary,"  by  prefixing  the  word  "abso- 
lutely." This  word,  then,  like  others,  is  used  in  various  senses  ;  and, 
in  its  construction,  the  subject,  the  context,  the  intention  of  the 
person  using  them,  are  all  to  be  taken  into  view. 

Let  this  be  done  in  the  case  under  consideration.     The  subject  is 
the  execution  of  those  great  powers  on  which  the  welfare  of  a  nation 
essentially  depends.     It  must  have  been  the  intention  of  those  who 
gave  these  powers,  to  insure,  as  far  as  human  prudence  could  insure, 
their  beneficial  execution.     This  could  not  be  done  by  confining  the 
choice  of  means  to  such  narrow  limits  as  not  to  leave  it  in  the  power 
of  Congress  to  adopt  any  which  might  be  appropriate,  and  which 
were  conducive  to  the  end.     This  provision  is  made  in  a  Constitution 
intended  to  endure  for  ages  to  come,  and,  consequently,  to  be  adapted 
to  the  various  crises  of  human  affairs.    To  have  prescribed  the  means 
by  which  government  should,  in  all  future  time,  execute  its  powers, 
would  have  been  to  change,  entirely,  the  character  of  the  instrument, 
and  give  it  the  properties  of  a  legal  code.     It  would  have  been  an  un- 
wise  attempt  to  provide,  by  immutable  rules,  for  exigencies  which, 
if  foreseen  at  all,  must  have  been  seen  dimTy,  and  wTiiclTcari IjeTTjest 
"provided  for  as  they  occur.     To  have  declared  that  the  best  means 
"shall  not  be  used,  but_jthose  alone  without  which  the  power    given 
would  be  nugatory,  would  have  been  to  deprive  tlie  legislature  of  tlie 
£apacity  to  avail  itself  of  experience,  to  exercise  its  reason^  and  to 
accommodate  its  legislation  to  circumstances.     If  we  apply  this  prin- 
ciple of  construction  to  any  of  the  powers  of  the  government,  we  shall 
find  it  so  pernicious  in  its  operation  that  wo  shall  be  compelled  to 
discard  it.     The  powers  vested  in  Congress  may  certainly  be  carried 
into  execution,  without  prescribing  an  oath  of  ofiice.     The  power  to 
exact  this  security  for  the  faithful  performance  of  duty,  is  not  given, 
nor  is  it  indispensably  necessary.     The  different  departments  may  be 
established;  taxes  may  be  imposed  and  collected;  armies  and  navies 
may  be  raised  and  maintained ;  and  money  may  be  borrowed,  without 
requiring  an  oath  of  office.    It  might  be  argued,  with  as  much  plausi- 
bility as  other  incidental  powers  have  been  assailed,  that  the  conven- 
tion was  not  unmindful  of  this  subject.     The  oath  which  raiglit  be 
exacted  —  that  of  fidelity  to  the  Constitution  —  is  prescribed,  and  no 
other  can  be  required.     Yet  he  would  be  charged  with  insanity  who 
should  contend,  that  the  legislature  might  not  superadd  to  the  oath 


10  NATURE   OF  THE   FEDERAL   CONSTITUTION,   ETC.       [CHAP.  I. 

/  directed  by  the  Constitution,  such  other  oath  of  office  as  its  vrisdoui 
might  suggest. 

So  with  respect  to  the  whole  penal  code  of  the  United  States. 
Whence  arises  the  power  to  punish  in  cases  not  prescribed  by  the  Con- 
stitution ?     All  admit  that  the  government  rnay^egitimately,  TPunisk 
any  violation  of  its  laws  ^  and  yet,  this  is  ^mt  nmonor  thp  pninnprntpd 
^wers  of  Congress.     The  right  to  enforce  the  observance  of  law,  by 
punishing  ftsTnlraction,  might  be  denied  with  the  more  plausibility, 
because  it  is  expressly  given  in  some  cases.     Congress  is  empowered 
"  to  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,"  and  "  to  define  and  punish  pira- 
cies and  felonies  committed  on  the  high  seas,  and  offences  against  the 
law  of  nations."     The  several  powers  of  Congress  may  exist,  in  a 
very  imperfect  state  to  be  sure,  but  they  may  exist  and  be  carried 
into  execution,  although  no  punishment  should  be  inflicted  in  cases 
where  the  right  to  punish  is  not  expressly  given. 
.   TaJLe^for  example,  the  power  ^^  to  estaA)Ush  jpost-offices^and^post- 
roads."     This  power  is  executed  by  the  single  act  of  making  the 
establishment     But  from  this  has  been  inferred  the  power  and  duty 
of  carrying  the  mail  along  the  post-road,    from  one   post-office  to 
another.     And,  from  this  implied  power,  has  again  been  inferred  the 
right _to  punish_tliose  \vho_  steal  letters  from  the  post-office,  or  rob 
the  mail.     It  may  be  said,  with  some  plausibility,  that  the  right  to 
-  carry  the  mail,  and  to  punish  those  who  rob  it,  is  not  indispensably 
necessary  to  the  establishment  of  a  post-office  and  post-road.     This 
right  is,  indeed,  essential  to  the  beneficial  exercise  of  the  power,  but 
not  indispensably  necessary  to  its  existence.     So,  of  the  punishment 
of  the  crimes  of  stealing  or  falsifying  a  record  or  process  of  a  court 
/of  the  United  States,  or  of  perjury  in  such  court.     To  punish  these 
/  offences  is  certainly  conducive  to  the  due  administration  of  justice. 
But  courts  may  exist,  and  may  decide  the  causes  brought  before  them, 
though  such  crimes  escape  punishment. 

The  baneful  influence  of  this  narrow  construction  on  all  the  opera- 
tions of  the  government,  and  the  absolute  impracticability  of  main- 
taining it  without  rendering  the  government  incompetent  to  its  great 
objects,  might  be  illustrated  by  numerous  examples  drawn  from  the 
Constitution,  and  from  our  laws.  The  good  sense  of  the  public  has 
pronounced,  without  hesitation,  that  the  power  of  punishment  apper- 
tains to  sovereignty,  and  may  be  exercised  whenever  the  sovereign 
has  a  right  to  act,  as  incidental  to  his  constitutional  powers.  It  is  a 
means  for  carrying  into  execution  all  sovereign  powers,  and  may  be 
used,  although  not  indispensably  necessan^  It  is  a  right  incidental 
to  the  power,  and  conducive  toTtsT^eneticial  exercise. 

If  this  limited  construction  of  the  word  "  necessary "  must  be 
abandoned  in  order  to  punish,  whence  is  derived  the  rule  which  would 
reinstate  it,  when  the  government  would  carry  its  powers  into  execu- 
tion by  means  not  vindictive  in  their  nature  ?     If  the  word  "  neces- 


CHAP.  I,]  Mcculloch  v.  Maryland.  11 

sary "  means    "needful,"    "requisite,"  "essential,"  "conducive  to," 
in  order  to  let  in  the  power  of  punishment  for  the  infraction  of  law,    \ 
why  is  it  not  equally  comprehensive  when  required  to  authorize  the    i  A 
use  of  means  which  facilitate  the  execution  of  the  powers  of  govern-y 
ment  without  the  iniiictiou  of  punishment  ? 

In  ascertaining  the  sense  in  which  the  word  "  necessary  "  is  used 
in  this  clause  of  the  Constitution,  we  may  derive  some  aid  from  that 
with  which  it  is  associated.  Congress  shall  have  power  "to  make  all 
laws  which  shall  be  necessary  and  proper  to  carry  into  execution  " 
the  powers  of  the  government.  If  the  word  "  necessary  "  was  used 
in  that  strict  and  rigorous  sense  for  which  the  counsel  for  the  State 
of  Maryland  contend,  it  would  be  an  extraordinary  departure  from 
the  usual  course  of  the  human  mind,  as  exhibited  in  composition,  to 
add  a  word,  the  only  possible  effect  of  which  is  to  qualify  that  strict 
and  rigorous  meaning;  to  present  to  the  mind  the  idea  of  some  choice 
of  means  of  legislation  not  straitened  and  compressed  within  the 
narrow  limits  for  which  gentlemen  contend. 

But  the  argument  which  most  conclusively  demonstrates  the  error 
of  the  construction  contended  for  by  the  counsel  for  the  State  of 
Maryland,  is  founded  on  the  intention  of  the  convention,  as  mani- 
fested in  the  whole  clause.  To  waste  time  and  argument  in  proving 
that,  without  it.  Congress  might  carry  its  powers  into  execution, 
would  be  not  much  less  idle  than  to  liold  a  lighted  taper  to  the  sun. 
As  little  can  it  be  required  to  prove,  that  in  the  absence  of  this  clause, 
Congress  would  have  some  choice  of  means.  That  it  might  employ 
those  which,  in  its  judgment,  would  most  advantageously  effect  the 
object  to  be  accomplished.  That  any  means  adapted  to  the  end,  any 
means  which  tended  directly  to  the  execution  of  the  constitutional 
powers  of  the  government,  were  in  themselves  constitutional.  Tiiis 
clause,  as  construed  by  the  State  of  Maryland,  would  abridge  and 
almost  annihilate  this  useful  and  necessary  right  of  the  legislature  to 
select  its  means.  That  this  could  not  be  intended,  is,  we  should 
think,  had  it  not  been  already  controverted,  too  apparent  for  contro- 
versy.    We  think  so  for  the  following  reasons :  — 

1.  The  clause  is  ])laced  among  the  powers  of  Congress,  not  among 
the  limitations  on  those  ])Owers. 

2.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers  vested 
m  the  governmeiit.  It  puri)orts  to  be  an  additional  power,  not  a 
restriction  on  those  already  granted.  Xo  reason  has  been  or  can  be 
assigned,  for  thus  concealing  an  intention  to  narrow  the  discretion 
of  the  national  legislature,  under  words  which  purport  to  enlarge  it. 
The  framers  of  the  Constitution  wished  its  adoption,  and  well  knew 
that  it  would  be  endangered  by  its  strength,  not  by  its  Aveakness. 
Had  they  been  capable  of  using  language  which  would  convey  to  the 
eye  one  idea,  and  after  deep  reflection,  impress  on  the  mind  another,  . 
they  would  rather  have  disguised  the  grant  of  power  than  its  linii-  ' 
tation.     If,  then,  their  intention  had  been,  by  this  clause,  to  restrain 


12  NATURE   OF   THE    FEDERAL   CONSTITUTION,    ETC,       [CHAP.  I. 

the  free  use  of  means  which  might  otherwise  have  been  implied,  that 
intention  would  have  been  inserted  in  another  place,  and  would  have 
been  expressed  in  terras  resembling  these :  "  In  carrying  into  exe- 
cution the  foregoing  powers,  and  all  others,"  etc.,  "  no  laws  shall  be 

/passed  but  such  as  are  necessary  and  proper."     Had  the  intention 

/  been  to  make  this  clause  restrictive,  it  would  unquestionably  have 

1  been  so  in  form  as  well  as  in  effect. 

'  The  result  of  the  most  careful  and  attentive  consideration  bestowed 
upon  this  clause  is,  that  if  it  does  not  enlarge,  it  cannot  be  construed 
to  restrain  the  powers  of  Congress,  or  to  impair  the  right  of  the  legis- 
lature to  exercise  its  best  judgment  in  the  selection  of  measures,  to 
carry  into  execution  the  constitutional  powers  of  the  government.  If 
no  other  motive  for  its  insertion  can  be  suggested,  a  sufficient  one  is 
found  in  the  desire  to  remove  all  doubts  respecting  the  right  to  legis- 
late on  that  vast  mass  of  incidental  powers  which  must  be  involved 
in  the  Constitution,  if  that  instrument  be  not  a  splendid  bauble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  government 
are  limited,  and  that  its  limits  are  not  to  be  transcended.  But  we 
think  the  sound  construction  of  the  Constitution  must  allow  to  the 
national  legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execution,  which 
will  enable  that  body  to  perform  the  high  duties  assigned  to  it,  in 

/the  manner  most  beneficial  to  the  people._  Let  the  end  be  legitimate^ 

/  let  it  be  within  the  scoi^e  of  the  CunstmltionTand  all  means  whjcg^ 
are  approp"i-iate,  which  ar"e"i3lainly  adapted  to'ThatendTwHTcIT  are  not_ 

,  ijfohibited,  buj  consist  with  the  letter  and  spirit  of  the  Constitution, 

i  are  constitutional. 

'  That  a  corporation  must  be  considered  as  a  means  not  less  usual, 
not  of  higher  dignity,  not  more  requiring  a  particular  specification 
than  other  means,  has  been  sufficiently  proved.  If  we  look  to  the 
origin  of  corporations,  to  the  manner  in  which  they  have  been  framed 
in  that  government  from  which  we  have  derived  most  of  our  legal 
principles  and  ideas,  or  to  the  uses  to  which  they  have  been  applied, 
we  find  no  reason  to  suppose  that  a  Constitution,  omitting,  and  wisely 
omitting,  to  enumerate  all  the  means  for  carrying  into  execution  the 
great  powers  vested  in   government,  ought  to  have  specified  this. 

/  Had  it  been  intended  to  grant  this  power  as  one  which  should  be 
distinct  and  independent,  to  be  exercised  in  any  case  whatever,  it 
would  have  found  a  place  among  the  enumerated  powers  of  the 
government.  But  being  considered  merely  as  a  means,  to  be  employed 
only  for  the  purpose  of  carrying  into  execution  the  given  powers, 
there  could  be  no  motive  for  particularly  mentioning  it. 

The  ])ropriety  of  this  remark  would  seem  to  be  generally  aeknowl- 

/  edged  by  the  universal  acquiescence  in  the  construction  which  has 

/  been  uniformly  put  on  the  3d  section  of  the  4th  article  of  the  Consti- 
tution. The  power  to  "  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 


CHAP.  I.]  Mcculloch  v.  Maryland.  13 

States,"  is  not  more  comprehensive  than  the  power  "to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into  execution  " 
the  powers  of  the  government.  Yet  all  admit  the  constitutionality 
of  a  territorial  government,  which  is  a  corporate  body. 

If  a  corporation  may  be  employed  indiscriminately  with  other 
means  to  carry  into  execution  the  powers  of  the  government,  no 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank,  if 
required  for  its  fiscal  operations.  To_use_one^must  be  within  the 
discretion  at Coii^ress,  if  it  be  au^ppropriaiejnode^Qi--axecutj^ng_ the 
po wers'oF govern ment.  That  it  is  a  convenient,  a  useful,  and  essen- 
tial instrument  in  the  prosecution  of  its  fiscal  operations,  is  not  now 
a  subject  of  controversy.  All  those  who  have  been  concerned  in  the 
administration  of  our  finances,  have  concurred  in  representing  its 
importance  and  necessity ;  and  so  strongly  have  they  been  felt,  that 
statesmen  of  the  first  class,  whose  previous  opinions  against  it  had 
been  confirmed  by  every  circumstance  which  can  fix  the  human 
judgment,  have  yielded  those  opinions  to  the  exigencies  of  the  nation. 
Under  the  confederation,  Congress  justifying  the  measure  by  its 
necessity,  transcended,  perhaps,  its  powers  to  obtain  the  advantage 
of  a  bank;  and  our  own  legislation  attests  the  universal  conviction 
of  the  utility  of  this  measure.  The  time  has  passed  away  when  it 
can  be  necessary  to  enter  into  any  discussion  in  order  to  prove  the 
importance  of  this  instrument,  as  a  means  to  effect  the  legitimate 
objects  of  the  government. 

But  were  its  necessity  less  apparent,  none  can  deny  its  being  an 
appropriate  measure  ;  and  if  it  is,  the  degree  of  its  necessity,  as  has 
been  very  justly  observed,  is  to  be  discussed  in  another  place.    Should 
Congress,  in  the  execution  of  its  powers,  adopt  measures  which  are 
prohibited  by  the  Constitution  ;  or  should  Congress,  under  the  pretext 
of  executing  its  powers,  pass  laws  for  the  accomplishment  of  objects  , 
not  intrusted  to  the  government,  it  would  become  the  painful  duty 
of  this  tribunal,  should  a  case  requiring  such  a  decision  come  before'^ 
it,  to  say  that  such  an  act  was  not  the  law  of  the  land.     But  where  ] 
the  law  is  not  prohibited,  and  is  really  calculated  to  effect  any  of  the  ■ 
objects  intrusted  to  the   government,  to  undertake   here  to  inquire; 
into  the  degree  of  its  necessity  would  be  to  pass  the  line  which  cir-\ 
cumscribes  the  judicial  department,  and  to  tread  on  legislative  ground. 
This  court  disclaims  all  pretensions  to  such  a  power. 

[Accordingly  the  court  holds  the  Act  of  Congress  incorporathig  \ 
ihe_Bank^of  the  United  States  to  be  valid,  and  therefore  that  the, 
Bauk^nd  its  branches  are  not  subject  to  State  taxation.     For  the 
reasoning  on  this  point  see  cases  under  Chapter  IV,  Sec.  I,  (b).     The 
judgment  of  the  Supreme  Court  of  Maryland  is  therefore  reversed.] 


14  NATURE   OF   THE    FEDERAL   CONSTITUTION,    ETC.       [CHAP.  I, 

BARRON  V.  BALTIMORE.  f^        / 


t^ 


7  Peters,  243;  10  Curtis,  46i.     1833. 


y 


Error  to  the  court  of  appeals  of  the  western  shore  of  the  State  of 
Maryland. 

Case  by  the  plaintiff  in  error  against  the  city  of  Baltimore,  to 
recover  damages  for  injuries  to  the  wharf-property  of  the  plaintiff, 
arising  from  the  acts  of  the  corporation. 

The  city,  in  the  asserted  exercise  of  its  corporate  authority  over 
the  harbor,  the  paving  of  streets,  and  regulating  grades  for  paving, 
and  over  the  health  of  Baltimore,  diverted  from  their  accustomed  and 
natural  course,  certain  streams  of  water,  which  flow  from  the  range 
of  hills  bordering  the  city,  and  diverted  them  so  that  they  made  de- 
posits of  sand  and  gravel  near  the  plaintiff's  wharf,  and  thereby  ren- 
dered the  water  shallow,  and  prevented  the  access  of  vessels. 

The  decision  of  Baltimore  county  court  was  against  the  defendants, 
and  a  verdict  for  $4,500  was  rendered  for  the  plaintiff.  The  court 
of  appeals  reversed  the  judgment  of  Baltimore  county  court,  and  did 
not  remand  the  case  to  that  court  for  a  further  trial.  From  this 
judgment  the  defendant  in  the  court  of  appeals,  prosecuted  a  writ  of 
error  to  this  court. 
. —  Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  judgment  brought  up  by  this  writ  of  error  having  been  ren- 
dered by  the  court  of  a  State,  this  tribunal  can  exercise  no  jurisdic- 
tion over  it,  unless  it  be  shown  to  come  within  the  provisions  of  the 
25th  section  of  the  Judicial  Act.^ 

The  plaintiff  in  error  contends  that  it  comes  within  that  clause  in 
the  5th  amendment  to  the  Constitution,  which  inhibits  the  taking  of 
private  property  for  public  use,  without  just  compensation.  He  insists 
that  this  amendment,  being  in  favor  of  the  liberty  of  the  citizen, 
ought  to  be  so  construed  as  to  restrain  the  legislative  power  of  a  State, 
as  well  as  that  of  the  United  States.  If  this  proposition  be  untrue, 
the  court  can  take  no  jurisdiction  of  the  cause. 

The  question  thus  presented  is,  we  think,  of  great  importance,  but 
not  of  much  difficulty. 

/  The  Constitution  was  ordained  and  established  by  the  people _of_the 
United  States  for  themselves,  for  their  own  government  and  iipt  for 
^he  government  of  the  individual  States.  Each  State  established  a 
constitution  for  itself^  and,~TTithat~constitution,  provided  such  limi- 
tations and  restrictions  on  the  powers  of  its  particular  government  as 
its  judgment  dictated.  The  people  of  the  United  States  framed  such 
a  government  for  the  United  States  as  they  supposed  best  adapted 
to  their  situation,  and  best  calculated  to  promote  their  interests.  The^ 
po\yerstheyconf  erred  on  this  govern  ment.wexe  tojpe  exercised  by, 

1  Stats,  at  Large,  85. 


CHAP.  I.]  BARRON  V.    BALTIMORE.  15 

itself :_  and  the  liimtations  on  power,  if  expressed  in  general  terms,  ' 
are  naturally, jujcl,  we  think,  necessarily  api)licable   to  the   crovern- 
nieiit  created  by  the  instrument.     They  are   limitations  of   i^a.wgr 
^-granted  in  the  instrument  itself ;  not  of  distinct  governments,  frajuecl 
by  different  persons  and  for  different  purposes. 

If  these  propositions  be^correlyt^^the  oth  amendment  must  be  under-  | 
stood  as  restraining  tlie  power  of  the  general  government,  not  a s 
applicable  to  the  States.  In  their  several  constitutions  they  have 
imposed  such  restrictions  on  their  respective  governments  as  their 
own  wisdom  suggested  ;  such  as  they  deemed  most  proper  for  them- 
selves. It  is  a  subject  on  which  they  judge  exclusively,  and  with 
which  others  interfere  no  further  than  they  are  supposed  to  have 
a  common  interest. 

The  counsel  for  the  plaintiff  in  error  insists  that  the  Constitution  y 
was  intended  to  secure  the  people  of  the  several  States  against  the    ^ 
undue  exercise  of  power  by  their  respective  State  governments  ;  as   ( 
well  as  against  that  which   might   be  attempted  by  their  general 
government.    In  support  of  this  argument  he  relies  on  the  inhibitions 
contained  in  the  lOtli  section  of  the  1st  article. 

We  think  that  section  affords  a  strong  if  not  a  conclusive  argument 
in  support  of  the  opinion  already  indicated  by  the  court. 

The  preceding  section  contains  restrictions  which  are  obviously 
intended  for  the  exclusive  purpose  of  restraining  the  exercise  of  power, 
by  the  departments  of  the  general  government.  Some  of  them  use 
language  applicable  only  to  Congress ;  others  are  expressed  in  general 
terms.  The  3d  clause,  for  example,  declares  that  "  no  bill  of  attain- 
der or  ex  post  facto  law  shall  be  passed."  No  language  can  be  more 
general ;  yet  the  demonstration  is  complete  that  it  applies  solely  to 
the  government  of  the  United  States.  In  addition  to  the  general 
arguments  furnished  by  the  instrument  itself,  some  of  which  have 
been  already  suggested,  the  succeeding  section,  the  avowed  purpose 
of  which  is  to  restrain  State  legislation,  contains  in  terms  the  very 
prohibition.  It  declares  that  "  no  State  shall  pass  any  bill  of  attain- 
der or  ex  2)ost  facto  law."  This  provision,  then,  cf  the  9th  section, , 
however  comprehensive  its  language,  contains  no  restriction  on  State 
legislation. 

The  Oth  section  having  enumerated,  in  the  nature  of  a  bill  of  rights, 
the  limitations  intended  to  be  imposed  on  the  powers  of  the  general 
government,  the  lOth  proceeds  to  enumerate  those  which  were  to 
operate  on  the  State  legislatures.  These  restrictions  are  brought 
together  in  the  same  section,  and  are  by  express  words  applied  to  the 
States.  "  No  State  shall  enter  into  any  treaty,"  etc.  Perceiving  that 
in  a  Constitution  framed  by  the  people  of  the  United  States  for  the 
government  of  all,  no  limitation  of  the  action  of  government  on  the 
people  would  apply  to  the  State  government,  unless  expressed  in 
terms;  the  restrictions  contained  in  the  10th  section  are  iu  direct 
words  so  aj^plied  to  the  States. 


^.-eJJ^ 


NATURE   OF   THE   FEDERAL   CONSTITUTION  ETC 


It  is  worthy  of  remark,  too,  that  these  inhibitions  generally  restrain 
State  legislation  on  subjects  intrusted  to  the  general  government,  or 
in  which  the  people  of  all  the  States  feel  an  interest. 
V  A  State  is  forbidden  to  enter  into  any  treaty,  alliance,  or  confed- 
eration. If  these  compacts  are  with  foreign  nations,  they  interfere 
with  the  treaty-making  power,  which  is  conferred  entirely  on  the 
general  government ;  if  with  each  other,  for  political  purposes,  they 
can  scarcely  fail  to  interfere  with  the  general  purpose  and  intent  of 
the  Constitution.  To  grant  letters  of  marque  and  reprisal,  would  lead 
/  directly  to  war ;  the  power  of  declaring  which  is  expressly  given  to 
Congress.  To  coin  money  is  also  the  exercise  of  a  power  conferred 
on  Congress.  It  would  be  tedious  to  recapitulate  the  several  limita- 
tions on  the  powers  of  the  States  which  are  contained  in  this  section. 
Tliey  will  be  found,  generally,  to  restrain  State  legislation  on  subjects 
intrusted  to  the  government  of  the  Union,  in  which  the  citizens  of 
all  the  States  are  interested.  In  these  alone  were  the  whole  people 
/  concerned.  The  question  of  their  application  to  States  is  not  left  to 
Vconstruction.     Itjs  averred  in  positive  words. 

If  the  original  Constitution,  in  the  9th  and  10th  sections  of  the  1st 
/article,  draws  this  plain  and  marked  line  of  discrimination  between 
/  the  limitations  it  imposes  on  the  powers  of  the  general  government, 
I  and  on  those  of  the  States  LJLin  every  inhibition  intended  to  act  on 
I  State  power,  words  are_employed  which  directjy  express  tliat^  intentj_ 
I  some  strong  reason  must  be  assigrieHTfor  departing  from  thissafe  and 
\  judicious  course  in  framing  the  amendments,  before  that  departure 
\can  be  assumed. 

We  search  in  vain  for  that  reason. 
/    Had  the  people  of  the  several  States,  or  any  of  them,  required 
/changes  in  their  constitutions;   had  they  required  additional  safe- 
guards to  liberty  from  the  apprehended  encroachments  of  their  par- 
ticular governments  ;  the  remedy  was  in  their  own  hands,  and  would 
have  been  applied  by  themselves.     A  convention  would  have  been 
assembled  by  the  discontented  State,  and  the  required  improvements 
would   have   been   made   by   itself.      The   unwieldy   and   cumbrous 
J  machinery  of  procuring  a  recommendation  from  two  thirds  of  Con- 
j  gress,  and  the  assent  of  three  fourths  of  their  sister  States,  could 
never  have  occurred  to  any  human  being  as  a  mode  of  doing  that 
which  might  be  effected  by  the  State  itself.     Had  the  framers  of 
these  amendments  intended  them  to  be  limitations  on  the  powers  of 
the  State  governments,  they  would  have  imitated  the  framers  of  the 
original  Constitution,  and  have  expressed  that  intention.     Had  Con- 
gress  engaged    in   the  extraordinary  occupation   of   improving   the 
constitutions  of  the  several  States  by  affording  the  people  additional 
protection  from  the  exercise  of  power  by  their  own  governments  in 
matters  which  concerned  themselves  alone,  they  would  have  declared 
this  purpose  in  plain  and  intelligible  language. 

But  it  is  universally  understood,  it  is  a  part  of  the  history  of  the 


^€^ 


[ABrty        y^WINING   v.    STATE    OF    NEWTJEllSEY. ^      "^H^f-^ 


CHABT  I./  y^WINING   V.    STATE    OF    NEWT  JERSEY. ^  '  -'^  ^    •^-t-^t^-a*^ 

day,  that  the  great  revolution  which  established  the  Constitution  of  ^^-^ 

the  United  States,  was  not  effected  without  immense  opposition. 
Serious  fears  were  extensively  entertained  that  those  powers  which 
the  patriot  statesmen,  who  then  watched  over  the  interests  of  our 
country,  deemed  essential  to  union,  and  to  the  attainment  of  those 
invaluable  objects  for  which  union  was  sought,  might  be  exercised 
in  a  manner  dangerous  to  liberty.     In  almost  every  convention   by  i 

which  the  constitution  was  adopted,  amendments  to  guard  against  i 

the  abuse  of   power   were   recommended.      These   amendments   de-  ; 

manded   security   against   the    apprehended   encroachments    of    the  ; 

general  government,  not  against  those  of  the  local  governments.  | 

In  compliance  with  a  sentiment  thus  generally  expressed  to  quiet  \ 

fears  thus  extensively  entertained,  amendments  were  proposed  by  the  j 

required  majority  in  congress,  and  adopted  by  the  States.     These  j 

amendments  contain  no  expression  indicating  an  intention  to  apply  j 

them  to  the  state  governments.     This  court  cannot  so  apply  them.  i 

^^\Vp_arp  nf  opinion  that  the  provision  in  the  fifth  amendment  to  the^ 
constitution,  declaring  that  private  property  shall  not  be  taken  for 
public  use"wTniout  jusFcompensation,  is  intended  solely  as  a  iimha^ 
tiou  onthe  exercise  of  power  by  the  government  of  the  United  States,/ 
and  is  not  applicable  to  the  legislation  of  the  States.     \Ye  are  there-'' 
fore  of  oi3<inion,  that  there  is  no  repugnancy  between  the  several  acts 
of  the  general  assembly  of  Maryland,  given  in  evidence  by  the  de- 
fendants at  the  trial  of  this  cause,  in  the  court  of  that  State,  and 
the  constitution  of  the  United  States.     This  court,  therefore,  has  no 
jurisdiction  of  the  causey  and  it  is  dismissed.^ 


^1 
)r  / 


TWINING  V,    STATE   OF  NEW   JERSEY. 

211  U.  S.  78;  29  Sup.  Ct.  Rep.  14.     1908. 

[The  plaintiff  in  error  and  another,  designated  in  the  opinion  as 
defendants,  were  tried  in  the  Monmouth  County  Court  in  New  Jersey 
on  the  charge  of  exhibiting  a  false  paper  as  bank  directors  to  the 
state  bank  examiner  with  intent  to  deceive  him  as  to  the  condition 
of  the  bank  of  which  they  were  directors,  such  offense  being  a  mis- 
demeanor by  the  statutes  of  the  state.  During  the  trial  the  judge 
instructed  the  jurors  that  they  might  consider  the  fact  that  defend- 
ants had  not  gone  upon  the  stand  to  testify,  as  a  circumstance  against 
them  under  the  evidence,  from  which  circumstance  an  inference  un- 
favorable to  the  defendants  might  be  'drawn.  The  defendants  were 
convicted,  and  a  judgment  of  imprisonment  imposed  upon  them  was 
affirmed  successively  in  the  Supreme  Court  and  the  Court  of  Errors 
and  Appeals  of  the  State.] 

1  Ace.  Fox  V.  Ohio,  5  How.  410 ;  W.ilker  v.  Sauvinet,  92  U.  S.  90;  Tresser  v.  Illi- 
nois, 116  U.  S.  2.-J2;  Spies  i,'.  Illiuois,  123  U.  S.  131. 

2 


18  NATURE   OP   THE    FEDERAL   CONSTITUTION,   ETC.       [CHAP.    I. 

Mk.  Justice  Moody  delivered  the  opiuion  of  the  court. 

[Under  the  Constitution  of  New  Jersey  there  is  no  prohibition 
against  compelling  a  defendant  in  a  criminal  case  to  be  a  witness 
against  himself.] 

The  defendants  contend,  in  the  first  place,  that  the  exemption  from 
self-incrimination  is  one  of  the  privileges  and  immunities  of  citizens 
of  the  United  States  which  the  Fourteenth  Amendment  forbids  the 
States  to  abridge.  It  is  not  argued  that  the  defendants  are  protected 
by  that  part  of  the  Fifth  Amendment  which  provides  that  "no 
person  .  .  .  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself,"  for  it  is  recognized  by  counsel  that  by  a  long  line 
of  decisions  the  first  ten  Amendments  are  not  operative  on  the  States. 
Barron  v.  Baltimore,  7  Pet.  243  [14] ;  Spies  v.  Illinois,  123  U.  S.  131 ; 
Brown  v.  New  Jersey,  175  U.  S.  172 ;  Barrington  v.  Missouri,  205 
U.  S.  483.  But  it  is  argued  that  this  privilege  is  one  of  the  funda- 
mental rights  of  National  citizenship, '  placed  under  National  pro- 
tection by  the  Fourteenth  Amendment. 

[Tlie  phrase  "  privileges  and  immunities  of  citizens  of  the  United 
States  "  is  discussed  with  reference  to  the  Slaughter-House  Cases, 
16  Wall.  36  [19]  and  other  decisions  of  the  court,  with  the  conclusion 
that  exemption  from  self-crimination  is  not  a  privilege  or  immunity 
of  National  citizenship,  unless  it  be  by  reason  of  the  express  reference 
thereto  in  the  Fifth  Amendment.] 

But  assuming  it  to  be  true  that  the  exemption  from  self-incrimi- 
nation is  not,  as  a  fundamental  right  of  National  citizenship,  included 
in  the  privileges  and  immunities  of  citizens  of  the  United  States, 
counsel  insist  that,  as  a  right  specifically  granted  or  secured  by  the 
Federal  Constitution,  it  is  included  in  them.  This  view  is  based 
upon  the  contention  which  must  now  be  examined,  that  the  safe- 
guards of  personal  rights  which  are  enumerated  in  the  first  eight 
Articles  of  amendment  to  the  Federal  Constitution,  sometimes  called 
the  Federal  Bill  of  Rights,  though  they  were  by  those  amendments 
originally  secured  only  against  National  action,  are  among  the  privi- 
leges and  immunities  of  citizens  of  the  United  States,  which  this 
clause  of  the  Fourteenth  Amendment  protects  against  state  action. 
This  view  has  been,  at  different  times,  expressed  by  justices  of  this 
court  (Mr.  Justice  Field  in  O'Niel  v.  Vermont,  144  U.  S.  323,  361; 
Mr.  Justice  Harlan  in  the  same  case,  370,  and  in  Maxwell  v.  Dow, 
176  U.  S.  606,  617),  and  was  undoubtedly  that  entertained  by  some 
of  those  who  framed  the  Amendment.  It  is,  however,  not  profitable 
to  examine  the  weighty  arguments  in  its  favor,  for  the  question  is  no 
longer  open  in  this  court.  The  right  of  trial  by  jury  in  civil  cases 
guaranteed  by  the  Seventh  Amendment  (Walker  v.  Sauvinet,  92 
U.  S.  90),  and  the  right  to  bear  arms  guaranteed  by  the  Second 
Amendment  (Presser  v.  Illinois,  116  U.  S.  252),  have  been  distinctly 
held  not  to  be  privileges  and  immunities  of  citizens  of  the  United 
States» guaranteed  by  the  Fourteenth  Amendment  against  abridgment 


CHAP.    I.]  SLAUGHTER-HOUSE   CASES.  19 

by  the  States,  and  in  effect  the  same  decision  was  made  in  respect  of 
the  guarantee  against  prosecution,  except  by  indictment  of  a  grand 
jury,  contained  in  the  Fifth  Amendment  (Hurtado  v.  California,  110 
U.  S.  516  [905]),  and  in  respect  of  the  right  to  be  confronted  with  wit- 
nesses, contained  in  the  Sixth  Amendment.  West  v.  Louisiana,  194 
U.  S.  258.  In  Maxwell  v.  Dow,  siqjra,  where  the  plaintiff  in  error 
had  been  convicted  in  a  state  court  of  a  felony  upon  an  information, 
and  by  a  jury  of  eight  persons,  it  was  held  that  the  indictment,  made 
indispensable  by  the  Fifth  Amendment,  and  the  trial  by  jury  guar- 
anteed by  the  Sixth  Amendment,  were  not  privileges  and  immunities 
of  citizens  of  the  United  States,  as  those  words  were  used  in  the 
Fourteenth  Amendment.  ...  We  conclude,  therefore,  that  the  ex- 
emption from  compulsory  self-incrimination  is  not  a  privilege  or 
immunity  of  National  citizenship  guaranteed  by  this  clause  of  the 
Fourteenth  Amendment  against  abridgment  by  the  States. 

Mb.  Justice  Haklan  delivered  a  dissenting  opinion. 


SLAUGHTER-HOUSE   CASES. 

[The  Butchers'  Benevolent  Association  of  New  Orleans  v.  The 
Chescext  City  Live-Stock  Landing  and  Slaughtek-House  Com- 
pany  AND   other   cases.] 

16  Wallace,  36.     1872. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme 
Court  of  the  State  of  Louisiana.  They  arise  out  of  the  efforts  of  the 
butchers  of  New  Orleans  to  resist  the  Crescent  City  Live-Stock 
Landing  and  Slaughter-House  Company  in  the  exercise  of  certain 
powers  conferred  by  the  charter  which  created  it,  and  wfiich  was 
granted  by  the  legislature  of  that  State. 

[The  general  legislative  power  to  grant  exclusive  privileges  in 
slaughtering  animals  is  considered,  and  held  to  be  within  the  police 
power  as  usually  exercised.] 

It  may,  therefore,  be  considered  as  established,  that  the  authority 
of  the  legislature  of  Louisiana  to  pass  the  present  statute  is  anipk-, 
unless  some  restraint  in  the  exercise  of  that  power  be  found  in  the 
constitution  of  that  State  or  in  the  amendments  to  the  Constitution 
of  the  United  States,  adopted  since  the  date  of  the  decisions  we  have 
already  cited. 

If  any  such  restraint  is  supposed  to  exist  in  the  constitution  of 
the   State,    the   Supreme    Court   of    Louisiana  having    necessarily 


20  NATURE   OF   THE   FEDERAL    CONSTITUTION,    ETC.      [CHAP.  I. 

passed  on  tliat  question,  it  would  not  be  open  to  review  in  this 
'.ourt. 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the  statute 
is  a  violation  of  the  Constitution  of  the  United  States  in  these 
several  particulars : 

That  it  creates  an  involuntary  servitude  forbidden  by  the  thir- 
teenth article  of  amendment; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws ; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of 
law;  contrary  to  the  provisions  of  the  first  section  of  the  fourteenth 
article  of  amendment. 

This  court  is  thus  called  upon  for  the  first  time  to  give  construc- 
tion to  these  articles. 

We  do  not  conceal  from  ourselves  the  great  responsibility  which 
this  duty  devolves  upon  us.  Ko  questions  so  far-reaching  and  per- 
vading in  their  consequences,  so  profoundly  interesting  to  the  people 
of  this  country,  and  so  important  in  their  bearing  upon  the  relations 
of  the  United  States,  and  of  the  several  States  to  each  other  and  to 
the  citizens  of  the  States  and  of  the  United  States,  have  been  before 
this  court  during  the  official  life  of  any  of  its  present  members. 
We  have  given  every  opportunity  for  a  full  hearing  at  the  bar;  we 
have  discussed  it  freely  and  compared  views  among  ourselves;  we 
have  taken  ample  time  for  careful  deliberation,  and  we  now  propose 
to  announce  the  judgments  which  we  have  formed  in  the  construc- 
tion of  those  articles,  so  far  as  we  have  found  them  necessary  to  the 
decision  of  the  cases  before  us,  and  beyond  that  we  have  neither  the 
inclination  nor  the  right  to  go. 

Twelve  articles  of  amendment  were  added  to  the  Federal  Constitu- 
tion soon  after  the  original  organization  of  the  government  under  it 
in  1789.  Of  these  all  but  the  last  were  adopted  so  soon  afterwards 
as  to  justify  the  statement  that  they  were  practically  contempora- 
neous with  the  adoption  of  the  original;  and  the  twelfth,  adopted 
in  180.3,  was  so  nearly  so  as  to  have  become,  like  all  the  others,  his- 
torical and  of  another  age.  But  within  the  last  eight  years  three 
other  articles  of  amendment  of  vast  importance  have  been  added  by 
the  voice  of  the  people  to  that  now  venerable  instrument. 

The  most  cursory  glance  at  these  articles  discloses  a  unity  of 
purpose,  when  taken  in  connection  with  the  history  of  the  times, 
which  cannot  fail  to  have  an  important  bearing  on  any  question  of 
doubt  concerning  their  true  meaning.  Nor  can  such  doubts,  when 
any  reasonably  exist,  be  safely  and  rationally  solved  without  a  refer- 
ence to  that  history;  for  in  it  is  found  the  occasion  and  the  neces- 
sity for  recurring  again  to  the  great  source  of  power  in  this  country, 


CHAP.  I.]  SLAUGHTER-HOUSE   CASES.  21 

the  people  of  the  States,  for  additional  guarantees  of  human  rights; 
additional  powers  to  the  Federal  government;  additional  restraints 
upon  those  of  the  States.  Fortunately  that  history  is  fresh  within 
the  memory  of  us  all,  and  its  leading  features,  as  they  bear  upon 
the  matter  before  us,  free  from  doubt. 

The  institution  of  African  slavery,  as  it  existed  in  about  half  the 
States  of  the  Union,  and  the  contests  pervading  the  public  mind  for 
many  years,  between  those  who  desired  its  curtailment  and  ultimate 
extinction  and  those  who  desired  additional  safeguards  for  its 
security  and  perpetuation,  culminated  in  the  effort,  on  the  part  of 
most  of  the  States  in  which  slavery  existed,  to  separate  from  the 
Federal  government,  and  to  resist  its  authority.  This  constituted 
the  war  of  the  rebellion,  and  whatever  auxiliary  causes  may  have 
contributed  to  bring  about  this  war,  undoubtedly  the  overshadowing 
and  efficient  cause  was  African  slavery. 

In  that  struggle  slavery,  as  a  legalized  social  relation,  perished. 
It  perished  as  a  necessity  of  the  bitterness  and  force  of  the  contlict. 
When  the  armies  of  freedom  found  themselves  upon  the  soil  of 
slavery  they  could  do  nothing  less  than  free  the  poor  victims  whose 
enforced  servitude  was  the  foundation  of  the  quarrel.  And  when 
hard  pressed  in  the  contest  these  men  (for  they  proved  themselves 
men  in  that  terrible  crisis)  offered  their  services  and  were  accepted 
by  thousands  to  aid  in  suppressing  the  unlawful  rebellion,  slavery 
was  at  an  end  wherever  the  Federal  government  succeeded  in  that 
purpose.  The  proclamation  of  President  Lincoln  expressed  an 
accomplished  fact  as  to  a  large  portion  oi  the  insurrectionary  dis- 
tricts, when  he  declared  slavery  abolished  in  them  all.  But  the 
war  being  over,  those  who  had  succeeded  in  re-establishing  the 
authority  of  the  Federal  government  were  not  content  to  permit  this 
great  act  of  emancipation  to  rest  on  the  actual  results  of  the  contest 
or  the  proclamation  of  the  Executive,  both  of  which  might  have  been 
questioned  in  after  times,  and  they  determined  to  place  this  main 
and  most  valuable  result  in  the  Constitution  of  the  restored  Union 
as  one  of  its  fundamental  articles.  Hence  the  thirteenth  article  of 
amendment  of  that  instrument.  Its  two  short  sections  seem  hardly 
to  admit  of  construction,  so  vigorous  is  their  expression  and  so 
appropriate  to  the  purpose  we  have  indicated. 

"1.  Neither   slavery  nor  involuntary  servitude  except  as  a  pun-  ^ 
ishment  for  crime,  whereof  the  party  shall  have  been  duly  convicted,  j 
shall  exist  within  the  United  States  or  any  place  subject  to  their 
jurisdiction. 

"2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation." 

To  withdraw  the  mind  from  the  contemplation  of  this  grand  yet 
simple  declaration  of  the  personal  freedom  of  all  the  human  race 
within  the  jurisdiction  of  this  government  —  a  declaration  designed 
to  establish  the  freedom  of  four  millions  of  slaves  —  and   with  a 


i 


22  NATURE   OF    THE    FEDERAL    CONSTITUTION,    ETC.       [CHAP.  I. 

microscopic  search  endeavor  to  find  in  it  a  reference  to  servitudes, 
which  may  have  been  attached  to  property  in  certain  localities, 
requires  an  elfort,  to  say  the  least  of  it. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of., 
;^e  word  "involuntary/*  which  can  only  apply  to  human  bein gs . 
The  exception  of  servitude  as  a'puntslfuTent  fofl^rmie' gives  an  jxlea 
of  the  class  of  servitude  that  is  meant.  The  word  servitude  is  of 
larger  meaning  than  slavery,  as  the  latter  is  popularly  understood 
in  this  country,  and  the  obvious  purpose  was  to  forbid  all  shades 
and  conditions  of  African  slavery.  It  was  very  well  understood  tliat 
in  the  form  of  apprenticeship  for  long  terms,  as  it  had  been  practised 
in  the  West  India  Islands,  on  the  abolition  of  slavery  by  the  Eng- 
lish government,  or  by  reducing  the  slaves  to  the  condition  of  serfs 
attached  to  the  plantation,  the  purpose  of  the  article  might  have 
been  evaded,  if  only  the  word  slavery  had  been  used.  The  case  of 
the  apprentice  slave,  held  under  a  law  of  Maryland,  liberated  by 
Chief  Justice  Chase,  on  a  writ  of  habeas  corpus  under  this  article, 
illustrates  this  course  of  observation.  Matter  of  Turner,  1  Abbott 
United  States  Reports,  84.  And  it  is  all  that  we  deem  necessary 
to  say  on  the  application  of  that  article  to  the  statute  of  Louisiana, 
now  under  consideration. 

The  process  of  restoring  to  their  proper  relations  with  the  Federal 
government  and  with  the  other  States  those  which  had  sided  with 
the  rebellion,  undertaken  under  the  proclamation  of- President  John- 
son in  1865,  and  before  the  assembling  of  Congress,  developed  the 
fact  that,  notwithstanding  the  formal  recognition  by  those  States 
of  the  abolition  of  slavery,  the  condition  of  the  slave  race  would, 
without  further  protection  of  the  Federal  government,  be  almost  as 
bad  as  it  was  before.  Among  the  first  acts  of  legislation  adopted 
by  several  of  the'  States  in  the  legislative  bodies  which  claimed  to 
be  in  their  normal  relations  with  the  Federal  government  were  laws 
which  imposed  upon  the  colored  race  onerous  disabilities  and  bur- 
dens, and  curtailed  their  rights  in  the  pursuit  of  life,  liberty,  and 
property  to  such  an  extent  that  their  freedom  was  of  little  value, 
while  they  had  lost  the  protection  which  they  had  received  from 
their  former  owners  from  motives  both  of  interest  and  humanity. 

They  were  in  some  States  forbidden  to  appear  in  the  towns  in  any 
other  character  than  menial  servants.  They  were  required  to  reside 
on  and  cultivate  the  soil  without  the  right  to  purchase  or  own  it. 
They  were  excluded  from  many  occupations  of  gain,  and  were  not 
permitted  to  give  testimony  in  the  courts  in  any  case  where  a  Avhite 
man  was  a  party.  It  was  said  that  their  lives  were  at  the  mercy 
of  bad  men,  either  because  the  laws  for  their  protection  were  insufii- 
cient  or  were  not  enforced. 

These  circumstances,  whatever  of  falsehood  or  misconception  may 
have  been  mingled  with  their  presentation,  forced  upon  the  states- 
men who  had  conducted  the  Federal  government  in  safety  through 


CHAP.  I.]  SLAUGHTER-HOUSE    CASES.  23 

the  crisis  of  the  rebellion,  and  who  supposed  that  by  the  thirteenth 
article  of  amendment  they  had  secured  the  result  of  their  labors,  the 
couvictioti  that  something  more  was  necessary  in  the  way  of  consti- 
tutional protection  to  the  unfortunate  race  who  had  suffered  so  much. 
They  accordingly  passed  through  Congress  the  proposition  for  the 
fourteenth  amendment,  and  they  declined  to  treat  as  restored  to 
their  full  participation  in  the  government  of  the  Union  the  States 
v^'hich  had  been  in  insurrection,  until  they  ratified  that  article  by  a 
formal  vote  of  their  legislative  bodies. 

Before  we  proceed  to  examine  more  critically  the  provisions  of 
this  amendment,  on  which  the  plaintiffs  in  error  rely,  let  us  com- 
plete and  dismiss  the  history  of  the  recent  amendments,  as  that 
history  relates  to  the  general  purpose  which  pervades  them  all.  A 
few  years'  experience  satisfied  the  thoughtful  men  who  had  been 
the  authors  of  the  other  two  amendments  that,  notwithstanding  tlic 
restraints  of  those  articles  on  the  States,  and  the  laws  passed  under 
the  additional  powers  granted  to  Congress,  these  were  inadequate 
for  the  protection  of  life,  liberty,  and  property,  without  which  free- 
dom to  the  slave  was  no  boon.  They  were  in  all  those  States  denied 
the  right  of  suifrage.  The  laws  were  administered  by  the  white 
man  alone.  It  was  urged  that  a  race  of  men  distinctively  marked  as 
was  the  negro,  living  in  the  midst  of  another  and  dominant  race, 
could  never  be  fully  secured  in  their  person  and  their  property 
without  the  right  of  suffrage. 

Hence  the  fifteenth  amendment,  which  declares  that  "the  right  of   ' 
a  citizen  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  any  State  on  account  of  race,  color,  or  previous  condition  of  ser-  * 
vitude."      The  negro  having,   by  the  fourteenth  amendment,  been 
declared  to  be  a  citizen  of  the  United  States,  is  thus  made  a  voter 
in  every  State  of  the  Union. 

We  repeat,  then,  in  the  light  of  this  recapitulation  of  events, 
almost  too  recent  to  be  called  history,  but  which  are  familiar  to  us 
all;  and  on  the  most  casual  examination  of  the  language  of  these 
amendments,  no  one  can  fail  to  be  impressed  with  the  one  pervad- 
ing purpose  found  in  them  all,  lying  at  the  foundation  of  each,  and 
without  which  none  of  them  would  have  been  even  suggested:  we 
mean  tlie  freedom  of  the  slave  race,  the  security  and  firm  establish- 
ment of  that  freedom,  and  the  protection  of  the  newly-made  freeman 
and  citizen  from  the  oppressions  of  those  who  had  formerly  exer- 
cised unlimited  dominion  over  him.  It  is  true  that  only  the  fifteenth 
amendment,  in  terms,  mentions  the  negro  by  speaking  of  his  color 
and  his  slavery.  But  it  is  just  as  true  chat  each  of  the  other  articles 
was  addressed  to  the  grievances  of  that  race,  and  designed  to  remedy 
them  as  the  fifteenth. 

We  do  not  say  that  no  one  else  but  the  negro  can  share  in  this 
protection.  Both  the  language  and  spirit  of  these  articles  are  to 
have  their  fair  and  just  weight    in  any   question  of   construction. 


24        NATURE  OF  THE  FEDERAL  CONSTITUTION,  ETC.   [CHAP.  I. 

Undoubtedly  while  negro  slavery  alone  was  in  the  mind  of  the  Con- 
gress which  proposed  the  thirteenth  article,  it  forbids  any  other 
kind  of  slavery,  now  or  hereafter.  If  Mexican  peonage  or  the 
Chinese  coolie  labor  system  shall  develop  slavery  of  the  Mexican  or 
Chinese  race  within  our  territory,  this  amendment  may  safely  be 
trusted  to  make  it  void.  And  so  if  other  rights  are  assailed  by  the 
States  which  properly  and  necessarily  fall  within  the  protection  of 
these  articles,  that  protection  will  apply,  though  the  party  inter- 
ested may  not  be  of  African  descent.  But  what  we  do  say,  and 
what  we  wish  to  be  understood  is,  that  in  any  fair  and  just  con- 
struction of  any  section  or  phrase  of  these  amendments,  it  is  neces- 
sary to  look  to  the  purpose  which  we  have  said  was  the  pervading 
spirit  of  them  all,  the  evil  which  they  were  designed  to  remedy,  and 
the  process  of  continued  addition  to  the  Constitution,  until  that  pur- 
pose was  supposed  to  be  accomplished,  as  far  as  constitutional  law 
can  accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  attention 
is  more  specially  invited,  opens  with  a  definition  of  citizenship  — 
not  only  citizenship  of  the  United  States,  but  citizenship  of  the 
States.  No  such  definition  was  previously  found  in  the  Constitu- 
tion, nor  had  any  attempt  been  made  to  define  it  by  act  of  Congress. 
It  had  been  the  occasion  of  much  discussion  in  the  courts,  by  the 
executive  departments,  and  in  the  public  journals.  It  had  been  said 
by  eminent  judges  that  no  man  was  a  citizen  of  the  United  States, 
except  as  he  was  a  citizen  of  one  of  the  States  composing  the  Union. 
Those,  therefore,  who  had  been  born  and  resided  alwaj's  in  the 
District  of  Columbia  or  in  the  Territories,  though  within  the  United 
States,  were  not  citizens.  Whether  this  proposition  was  sound  or 
not  had  never  been  judicially  decided.  But  it  had^b^en_held  by  this 
,court,  in  the  celebrated  Dred  Scott  case,  only  a  few  years  before  the 
j  outbreak  of  the  ciylTwar^that  a  man  of  African  descent,  whev.nef  a 
glave  or  not,  was  not  and  coiild  not  be  a  citizen  of  a  State  or  of  the  ' 
JQnrted__^tates7  This  decision,  while  it  iiiet  the  condemnation~''of 
some  of  the  ablest  statesmen  and  constitutional  lawyers  of  the  coun- 
try, had  never  been  overruled;  and  if  it  was  to  be  accepted  as  a  con- 
stitutional limitation  of  the  right  of  citizenship,  then  all  the  negro 
race  who  had  recently  been  made  freemen,  were  still,  not  only  not 
citizens,  but  were  incapable  of  becoming  so  by  anything  short  of 
an  amendment  to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and 
comprehensive  definition  of  citizenship  which  should  declare  what 
should  constitute  citizenship  of  the  United  States,  and  also  citi- 
zenship of  a  State,  the  first  clause  of  the  first  section  was  framed. 
"All  persons  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside." 

The  first  observation  we  have  to  make  on  this  clause  is,  that  it 


CHAP.  I.]  SLAUGHTER-HOUSE    CASES.  25 

puts  at  rest  both  the  questions  which  we  stated  to  have  been  the 
subject  of  differences  of  opinion.  It  declares  that  persons  may  be 
citizens  of  the  United  States  without  regard  to  their  citizensliip  of 
a  particular  State,  and  it  overturns  the  Dred  Scott  decision  by  mak- 
ing all  persons  born  within  the  United  States  and  subject  to  its  juris- 
diction citizens  of  the  United  States.  That_its  main_gurposejwas_to 
establish  the  citizenship  of  the  negro  can  admit  of  no_doulrt.  The 
phrase^  "subject  to 'its  jurisdiction"  wasThtended  to  exclude  from' 
its  operation  children  of  ministers,  consuls,  and  citizens  or  subjects( 
of  foreign  States  born  within  the  United  States. 

The  next  observation  is  more  important  in  view  of  the  arguments 
of  counsel  in  the  present  case.  It  is,  that  the  distinction  between 
citizenship  of  the  United  States  and  citizenship  of  a  State  is  clearly 
recognized  and  established.  Not  only  may  a  man  be  a  citizenjjf 
the  United  States  without  being  a  citizenjjjLa  State,  but  an  impor- 
tant element  is  necessary  to  convert  the  former  into  the  latter.  ,^JJe 
must  reside  within  the  State  to  make  him  a  citizen  of  it,  but  it  is 
jmly.  necessary  that  he  should  be  born  or  naturalized  in  the  TJnited 
States  to  be  a  citizen  of  the  Union. 

iFirnquIte  clear,  then,  that  there  is  a  citizenship  of  the  United 
States,  and  a  citizenship  of  a  State,  which  are  distinct  from  each 
other,  and  which  depend  upon  different  characteristics  or  circum- 
stances in  the  individual. 

We  think  this  distinction  and  its  explicit  recognition  in  this 
amendment  of  great  weight  in  this  argument,  because  the  next 
paragraph  of  this  same  section,  which  is  the  one  mainly  relied  on  by  ■ 
the  plaintiffs  in  error,  speaks  only  of  privileges  and  immunities  of  | 
citizens  of  the  United  States,  and  does  not  speak  of  those  of  citizens  of 
the  several  States.  The  argument,  however,  in  favor  of  the  plaintiffs 
rests  wholly  on  the  assumption  that  the  citizenship  is  the  same,  and 
the  privileges  and  immunities  guaranteed  by  the  clause  are  the  same. 

The  language  is,  "  Ng_  State  shall  make  or  enforce  any  law  which 
^shall  abridge  the  privileges  or  immunities  of  citizens  of  the  Uniti^ 
States."     It  is  a  little  remarkable,  if  this  clause  was  intejided  as  a 
protection  to  the_citizen  of  a  State  against  the  legislativcpou-ernol 


his  own  State,  that  the  word  citizen  of  the  State  should  be  left  out 


^JlgQJljS-go^Qsirefully  used,  and  used  in  contradistinction  to  citizeii3_ 


^the  Unite4:§^^ate§j,  in  the  very  sentence  which  precedes  it.  It  is 
too  clear  for  argument  that  the  change  in  phraseology  waslidopted 
understandingly  and  with  a  purpose. 

Of  the  privileges  and  immunities  of  the  citizen  of  the  United 
States,  and  of  the  privileges  and  immunities  of  the  citizen  of  the 
State,  and  what  they  respectively  are,  we  will  presently  consider; 
but  we  wish  to  state  here  that  it  is  only  the  former  whicjh  are 
placed  by  this  clause  under  the  protection  of  the  Federal  Constitu- 
tion, and  that  the  latter,  whatever  they  may  be,  are  not  intenderl  to 
have  any  additional  protection  by  this  paragraph  of  the  amendment. 


26  NATURE   OF   THE    FEDERAL   CONSTITUTION,   ETC.       [CHAP.  I. 

If,  then,  there  is  a  difference  between  the  privileges  and  immuni- 
ties belonging  to  a  citizen  of  the  United  States  as  such,  and  those 
belonging  to  the  citizen  of  the  State  as  such,  the  latter  must  rest 
for  their  security  and  protection  where  they  have  heretofore  rested; 
for  they  are  not  embraced  by  this  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "privileges  and  immunities"  in 
our  constitutional  history,  is  to  be  found  in  the  fourth  of  the  ai-ticles 
of  the  old  Confederation. 

It  declares  "that  the  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different  States 
in  this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
■  va"-abonds,  and  fugitives  from  justice  excepted,  shall  be  entitled  to 
all  the  privileges  and  immunities  of  free  citizens  in  the  several 
States;  and  the  people  of  each  State  shall  have  free  ingress  and 
rerrress  to  and  from  any  other  State,  and  shall  enjoy  therein  all  the 
privileges  of  trade  and  commerce,  subject  to  the  same  duties,  impo- 
sitions, and  restrictions  as  the  inhabitants  thereof  respectively." 

In  the  Constitution  of  the  United  States,  which  superseded  the 

Articles  of  Confederation,  the  corresponding  provision  is  found  in 

section  two  of  the  fourth  article,  in  the  following  words :  "  The  citi- 

I  zens  of  each  State  shall  be  entitled  to  all  the  privileges_and  immuni- 

1  ties_of  citizens^of  the  several  States." 

'  Thei-e~can  be  but  little  question  that  the  purpose  of  both  these  pro- 
visions is  the  same,  and  that  the  privileges  and  immunities  intended 
are  the  same  in  each.  In  the  article  of  the  Confederation  we  have 
some  of  these  specifically  mentioned,  and  enough  perhaps  to  give 
some  general  idea  of  the  class  of  civil  rights  meant  by  the  phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this  clause 
of  the  Constitution.     The  first  and  the  leading  case  on  the  subject  is 
that  of  Corfield  v.  Coryell  decided  by  Mr.  Justice  Washington  in  the 
Circuit  Court  for  the  District  of  Pennsylvania  in  1823.     4  Washing- 
ton's Circuit  Court,  371. 
^ /  "The  inquiry,"  he  says,  "is,  what  are  the  privileges  and  immuni- 
ties of  citizens  of  the  several  States?     We  feel  no  hesitation  in  con- 
jfining  these  expressions  to  those  privileges  and  immunities  which 
/are  fundamental ;  which  belong  of  right  to  the  citizens  of  all  free 
governments,  and  which  have  at  all  times  been  enjoyed  by  citizens 
of  the  several  States  which  compose  this  Union  from  the  time  of 
their  becoming  free,  independent,  and  sovereign.     What  these  fun- 
damental principles  are,  it  would  be  more  tedious  than  difficult  to 
enumerate.     They  may  all,  however,  be  comprehended   under   the 
^  following  general  heads:    protection_by_the^^overnment,   with  the 

right  to  acquire  and  possess  property  of_every  kind,  and  to  pursue 

f.  and~obtanr^a?ppiness  and  safety,  subject,  nevertheless,  to  sucli  re- 
straints  aTtliegovernnient  ma^^^escribe  for  the  general  good  of  the 
-L   '.       -whole."    " 
'  ^-<         This  definition  of  the  privileges  and  immunities  of  citizens  of  the 


CHAP.  I.]  SLAUGHTER-HOUSE   CASES.  27 

States  is  adopted  in  the  main  by  this  court  in  the  recent  case  of 
Ward  V.  The  State  of  Maryland,  12  Wallace,  430,  while  it  declines 
to  undertake  an  authoritative  definition  beyond  what  was  necessary 
to  that  decision.  The  description,  when  taken  to  include  others  not 
named,  but  which  are  of  the  same  general  character,  embraces  nearly 
every  civil  right  for  the  establishment  and  protection  of  whicli 
organized  government  is  instituted.  They  are,  in  the  language  of 
Judge  Washington,  those  rights  which  are  fundamental.  Through- 
out his  opinion,  they  are  spoken  of  as  rights  belonging  to  the  indi- 
vidual as  a  citizen  of  a  State.  They  are  so  spoken  of  in  the 
constitutional  provision  which  he  was  construing.  And  they  have 
always  been  held  to  be  the  class  of  rights  which  the  State  govern- 
ments were  created  to  establish  and  secure.  In  the  case  of  Paul 
V.  Virginia,  8  Wall.  180,  the  court,  in  expounding  this  clause  of  the 
Constitution,  says  that  "the  privileges  and  immunities  secured 
to  citizens  of  each  State  in  the  several  States,  by  the  provision  in 
question,  are  those  privileges  and  immunities  which  are  common  to 
the  citizens  in  the  latter  States  under  their  constitution  and  laws  by 
virtue  of  their  being  citizens." 

The  constitutional  provision  there  alluded  to  did  not  create  those 
rights,  which  it  called  privileges  and  immunities  of  citizens  of  the 
States.  It  threw  around  them  in  that  clause  no  security  for  the 
citizen  of  the  State  in  which  they  were  claimed  or  exercised.  Kor 
did  it  profess  to  control  the  power  of  the  State  governments  over 
the  rights  of  its  own  citizens. 

Itssole  purpose  w_as  to  declare  to  the  several  States,  that  what- 
ever  those  rights,  as  yougrant  or  establish  them  to  your  own  citi- 
zens,  or  as   you~Jimit"or  qualify,  or  impose   restrictions  on  their 
exercise,  the  same,  neither  more  nor  less,  shall  be  the  measure  of 
the  rights  of  citizens  of  other  States  within  your  jurisdiction. 
'    It  would  T3e~the  vainest  show  of  learning  to  attempt  to  prove  by 
citations  of  authority,  that  up  to  the  adoption  of  the  recent  amend- 
ments, no  claim  or  pretence  was  set  up  that  those  rights  depended  on 
the    Federal  government  for  their  existence  or  ])rotection,  beyond 
the  very  few  express  limitations  which   the   Fed^eraj^  Constitution 
imposed  upon~  the  States  —  such,  for   instance,  as  the  prohibition^ 
against  ex  post  factoTawsTbills  of  attainder,  and  laws  impairing 
the  obligation  of  contracts.     But  with  the_exception  of  these  and  a 
few  other  restrictions,  the  entire  domain  of  the  privileges  aiid  im- 
^lunities  of  citizens  oF  the  States^  as  above  defined,  lay  within  tlie 
"constitutional  and  legislative  ]X)wer  of  the  States,  and  without  that 
'of^fihe  Federal  government.     AVas  it  the  purpose  of  the  fourteenth 
"amendment,  by  the  simpte  declaration  that  no  State  should  make  or 
enforce  any  law  which  shall  abridge  the  privileges  and  immunities 
of  citizens  nf  the  United  States,  to  transfer  the  security  and  protec- 
tion of  all  the  civil  rights  which  we  have  mentioned,  from  the  States 
to  the  Federal  government?     And  where  it  is  declared  that  Congress 


28        NATURE  OF  THE  FEDERAL  CONSTITUTION,  ETC.   [CHAP.  I. 

shall  have  the  power  to  enforce  that  article,  was  it  intended  to  bring 
,  within  the  power  of  Congress  the  entire  domain  of  civil  rights 
j  heretofore  belonging  exclusively  to  the  States? 

'  All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs 
in  error  be  sound.  For  not  only  are  these  rights  subject  to  the  con- 
trol of  Congress  whenever  in  its  discretion  any  of  them  are  supposed 
to  be  abridged  by  State  legislation,  but  that  body  may  also  pass 
laws  in  advance,  limiting  and  restricting  the  exercise  of  legislative 
pov/er  by  the  States,  in  their  most  ordinary  and  usual  functions,  as 
in  its  judgment  it  may  think  proper  on  all  such  subjects.  And  still 
further,  such  a  construction  followed  by  the  reversal  of  the  judg- 
ments of  the  Supreme  Court  of  Louisiana  in  these  cases,  would 
constitute  this  court  a  perpetual  censor  upon  all  legislation  of  the 
States,  on  the  civil  rights  of  their  own  citizens,  with  authority  to 
nullify  such  as  it  did  not  approve  as  consistent  with  those  rights,  as 
they  existed  at  the  time  of  the  adoption  of  this  amendment.  The 
argument  we  admit  is  not  always  the  most  conclusive  which  is  drawn 
from  the  conseqiiences  urged  against  the  adoption  of  a  particular 
construction  of  an  instrument.  But  when,  as  in  the  case  before  us, 
these  consequences  are  so  serious,  so  far-reaching  and  pervading,  so 
great  a  departure  from  the  structure  and  spirit  of  our  institutions; 
when  the  effect  is  to  fetter  and  degrade  the  State  governments  by 
/  subjecting  them  to  the  control  of  Congress,  in  the  exercise  of  powers 
heretofore  universally  conceded  to  them  of  the  most  ordinary  and 
fundamental  character;  when  in  fact  it  radically  changes  the  whole 
theory  of  the  relations  of  the  State  and  Federal  governments  to  each 
other  and  of  both  these  governments  to  the  people;  the  argument 
has  a  force  that  is  irresistible,  in  the  absence  of  language  which 
expresses  such  a  purpose  too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the 
Congress  which  proposed  these  amendments,  nor  by  the  legislatures 
of  the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in  the 
argument  are  those  which  belong  to  citizens  of  the  States  as  such, 
and  that  they  are  left  to  the  State  governments  for  security  and 
protection,  and  not  by  this  article  placed  under  the  special  care 
of  the  Federal  government,  we  may  hold  ourselves  excused  from 
defining  the  privileges  and  immunities  of  citizens  of  the  United 
States  which  no  State  can  abridge,  until  some  case  involving  those 
privileges  may  make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities 
are  to  be  found  if  those  we  have  been  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the  Federal 
government,  its  National  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v.  Nevada, 
6  Wallace,  36.  It  is  said  to  be  the  right  of  the  citizen  of  this 
great  country,  protected  by  implied  guarantees  of  its  Constitution, 


CHAP.  I.] 


SLAUGHTER-HOUSE   CASES. 


29 


C? 


A^ 


"to  come  to  the  seat  of  g:overmuent  to  assert  any  claim  he  may  have 
upon  that  government,  to  transact  any  business  he  may  have  with  it, 
to  seek  its  protection,  jto_sh^re_its_otiices,  to  engage  in  administering 
its  functions.  Hfi__has  the  right  of  free  access  to_its  s.£aj2o.rtj, 
through  which  all  operations  of  foreign  commerce  are  conducted,  to 
the  sub-treasuries,  land  offices,  and  courts  ot  juatifce  in_the_ several 
States."  And  quoting  from  the  language  of  Cliief  Justice  Taney  m 
another  case,  it  is  said  "that  fur  all  the  great  ijw^joses  for  wJiich  the 
Federal  government  was  established,  we  are  one  people,  with  one 
common  country,  ive  are  all  citizens  of  the  United  States ;"  and  it  is, 
as  such  citizens,  that  their  rights  are  supported  in  this  court  in 
Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  / 
the  care  and  protectiQlLJlf.^the_Eederal  government  over   his  life,  / 
liberty,  and  property  when  on  the  high  seas  or  within  the  jurisdic-/ 
tion  of  a  foreign  government.     Of  this  there  can  be'TTo^oubt,  nor 
that   the   right   depends   upon   his    character   as   a   citizen   of  the 
United  States.     The  right  to  peaceably  assemble  and  petition  for 
redress  of  grievances,  the  privilege  of  the  writ  of   habeas  corpus^ 
are  rights  of  the  citizen  guaranteed  by  the    Federal    Constitution. 
The  right  to  use  the  navigable  watersof  the  United  States,  however 
they  may  penetrate  the  territory  of  the   several  States,  all  Tiglits 
'^ecured~to  our  citizensjby' treaties  \vitli  foreign  nations,  are  de]JencP 
ent  upon  citizenship  of  the_JJnited  StateSj^and  not  citizenshTp~Df  a 
^State.^'Une  of  these  privileges  is  conferred  by  the  very  article  under 
consideration.     It  is  that  a  citizen  of  the  United  States  can,  of  his 
own  volition,  become  a  citizen  of  any  State  of  the  Union  by  a  hon6,]^ 
fide  residence  therein,  with  the  same  rights  as  other  citizens  of  that 
State.     To  these  may  be  added  the  rights  secured  by  the  thirteenth 
and  fifteenth  articles  of  amendment,  and  by  the  other  clause  of  the 
fourteenth,  next  to  be  considered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we  are 
of  opinion  that  the  rights  claimed  by  these  plaintiffs  in  error,  if  they 
have  any  existence,  are  not  privileges  and  immunities  of  citizens  of 
the  United  States  within  the  meaning  of  the  clause  of  the  fourteenth 
amendment  under  consideration. 

"  All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  its  laws." 

The  argument  has  not  been  much  pressed  in  these  cases  that  the 
defendant's  charter  deprives  the  plaintiffs  of  their  property  jwithqut 
due  process  of  law,  or  that  it  denies  to  them  the  equal  protection  of  v^ 
theT^aw.  ^The  hfst  of  these  paragraphs  has  been  in  the  Constitution  ^ ^' 


<tr 


s 


30 


NATURE   OF   THE   FEDERAL   CONSTITUTIONj   ETC.      [CHAP.  I. 


/ 


since  the  adoption  of  the  fifth  amendment,  as  a  restraint  upon  the 
Federal  power.  It  is  also  to  be  found  in  some  form  of  expression 
in  the  constitutions  of  nearly  all  the  States,  as  a  restraint  upon  the 
power  of  the  States.  This  law,  then,  has  practically  been  the  same 
as  it  now  is  during  the  existence  of  the  government,  except  so  far  as 
the  present  amendment  may  place  the  restraining  power  over  the 
States  in  this  matter  in  the  hands  of  the  Federal  government. 

We  are  not  without  judicial  interpretation,  therefore,  both  State 
and  National,  of  the  meaning  of  this  clause.  And  it  is  sufficient  to 
say  that  under  no  construction  of  that  provision  that  we  have  ever 
seen,  or  any  that  we  deem  admissible,  can  the  restraint  imposed  by 
the  State  of  Louisiana  upon  the  exercise  of  their  trade  by  the 
butchers  of  Kew  Orleans  be  held  to  be  a  deprivation  of  property 
within  the  meaning  of  that  provision. 

"Nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."      '^'^^^ -t-ty-L^o 

In  the  light  of  the  history  of  these  amendments,  and  the  pervading 
purpose  of  them,  which  we  have  already  discussed,  it  is  not  difficult 
to  give  a  meaning  to  this  clause.  The  existence  of  laws  in  the  States 
where  the  newly  emancipated  negroes  "resided,  which  discriminated 
wltTTgross  injustice  andjiardship  against  them  as  a  class^  was  the 
evil  to  be~remediecL.by  this  clause,  and  by  it  such  laws^are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  require- 
ments, then  by  the  fifth  section  of  the  article  of  amendment  Con- 
gress was  authorized  to  enforce  it  by  suitable  legislation.  We  doubt 
very  much  whether  any  action  of  a  State  not  directed  by  way  of  dis- 
crimination against  the  negroes  as  a  class,  or  on  account  of  their 
race,  will  ever  be  held  to  come  within  the  purview  of  this  provision/ 
It  is  so  clearly  a  provision  for  that  race  and  that  emergency,  that  a 
strong  case  would  be  necessary  for  its  application  to  any  other.  But 
as  it  is  a  State  that  is  to  be  dealt  with,  and  not  alone  the  validity 
of  its  laws,  we  may  safely  leave  that  matter  until  Congress  shall 
have  exercised  its  power,  or  some  case  of  State  oppression,  by  denial 
of  equal  justice  in  its  courts,  shall  have  claimed  a  decision  at  our 
hands.  We  find  no  such  case  in  the  one  before  us,  and  do  not  deem 
it  necessary  to  go  over  the  argument  again,  as  it  may  have  relation 
to  tliis  particular  clause  of  the  amendment. 


In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate 
the  powers  of  the  National  government  from  those  of  the  State  gov- 
ernments, and  though  this  line  has  never  been  very  well  defined  in 
public  opinion,  su(;h  a  division  has  continued  from  that  day  to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution 
so  soon  after  the  original  instrument  was  accepted,  shows  a  prevail- 
ing sense  of  danger  at  that  time  from  the  Federal  power.  And  it 
cannot  be  denied  that  such  a  jealousy  continued  to  exist  with  many 


CHAP.  I.]  UNITED    STATES    V.    CEUIKSHANK.  31 

patriotic  men  until  the  breaking  out  of  the  late  civil  war.  It  was 
then  discovered  that  the  true  danger  to  the  peri)etuity  of  the  Union 
was  in  the  capacity  of  the  State  organizations  to  combine  and  con- 
centrate all  the  powers  of  the  State,  and  of  contiguous  States,  for 
a  determined  resistance  to  the  General  Government. 

Unquestionably  this  has  given  great  force  to  the  argument,  and 
added  largely  to  the  number  of  those  who  believe  in  the  necessity 
of  a  strong  National  government. 

But,  however  pervading  this  sentiment,  and  however  it  may  have 
contributed  to  the  adoption  of  the  amendments  we  have  been  con- 
sidering, we  do  not  see  in  those  amendments  any  purpose  to  destroy 
the  main  features  of  the  general  system.  Under  the  pressure  of  all 
the  excited  feeling  growing  out  of  the  war,  our  statesmen  have  still 
believed  that  the  existence  of  the  States  with  powers  for  domestic 
and  local  government,  including  the  regulation  of  civil  rights  —  the 
rights  of  person  and  of  property  —  was  essential  to  the  perfect  work- 
ing of  our  complex  form  of  government,  though  they  have  tliought 
proper  to  impose  additional  limitations  on  the  States,  and  to  confer 
additional  power  on  that  of  the  Nation. 

Bat  whatever  fluctuations  may  be  seen  in  the  history  of  public 
opinion  on  this  subject  during  the  period  of  our  national  existence, 
we  think  it  will  be  found  that  this  court,  so  far  as  its  functions  re- 
quired, has  always  held  with  a  steady  and  an  even  hand  the  balance 
between  State  and  Federal  power,  and  we  trust  that  such  may  con- 
tinue to  be  the  history  of  its  relation  to  that  subject  so  long  as  it 
shall  have  duties  to  perform  which  demand  of  it  a  construction  of 
the  Constitution,  or  of  any  of  its  parts. 

The  judgments  of  the  Supreme  Court  of  Louisiana  in  these  cases 
are  Affirmed.^ 


UNITED  STATES  v.  CRUIKSHANK. 
92  United  States,  542.     1875. 

Mr.  Chief  Justicp:  Waite  delivered  the  opinion  of  the  court. 

This  case  comes  here  with  a  certificate  by  the  judges  of  the  Circuit 
Court  for  the  District  of  Louisiana  that  they  were  divided  in  opinion 
upon  a  question  which  occurred  at  the  hearing.  It  presents  for  our 
consideration  an  indictment  containing  sixteen  counts,  divided  into 
two  series  of  eight  counts  each,  based  upon  sect.  6  of  the  Enforcement 
Act  of  May  31,  1870.     That  section  is  as  follows:  — 

"  That  if  two  or  more  persons  shall  band  or  conspire  together,  or 
go  in  disguise  upon  the  public  highway,  or  upon  the  premises  of  an- 

1  Mr.  Justice  Field  delivered  a  ilissenting  opinion,  in  which  Mr.  Chief  Justice 
Chase,  Mr.  Justice  Swayne,  and  Mr.  Justice  Bradlky  concuired. 

Other  cases  as  to  the  effect  of  the  Fourteenth  Amciidmeiit  will  be  found  iu  Chap. 
XIII.,  Sect.  IV. 


32  NATURE   OF   THE   FEDERAL   CONSTITUTION,   ETC.       [CHAP.  I. 

other,  with  intent  to  violate  any  provision  of  this  act,  or  to  injure, 
oppress,  threaten,  or  intimidate  any  citizen,  with  intent  to  prevent  or 
hinder  his  free  exercise  and  enjoyment  of  any  right  or  privilege 
granted  or  secured  to  him  by  the  constitution  or  laws  of  the  United 
States,  or  because  of  his  having  exercised  the  same,  such  person  shall 
be  held  guilty  of  felony,  and,  on  conviction  thereof,  shall  be  fined  or 
imprisoned,  or  both,  at  the  discretion  of  the  court,  —  the  fine  not  to 
exceed  $5,000,  and  the  imprisonment  not  to  exceed  ten  years ;  and 
shall,  moreover,  be  thereafter  ineligible  to,  and  disabled  from  holding, 
any  office  or  place  of  honor,  profit,  or  trust  created  by  the  constitution 
or  laws  of  the  United  States."     16  Stat.  141. 

The  question  certified  arose  upon  a  motion  in  arrest  of  judgment 
after  a  verdict  of  guilty  generally  upon  the  whole  sixteen  counts,  and 
is  stated  to  be,  whether  "  the  said  sixteen  counts  of  said  indictment 
are  severally  good  and  sufficient  in  law,  and  contain  charges  of  crim- 
inal matter  indictable  under  the  laws  of  the  United  States." 

The  general  charge  in  the  first  eight  counts  is  that  of  "banding," 
and  in  the  second  eight,  that  of  "conspiring"  together  to  injure, 
oppress,  threaten,  and  intimidate  Levi  Xelson  and  Alexander  Tillman, 
citizens  of  the  United  States,  of  African  descent  and  persons  of 
color,  with  the  intent  thereby  to  hinder  and  prevent  them  in  their 
free  exercise  and  enjoyment  of  rights  and  privileges  "  granted  and 
secured"  to  them  "in  common  with  all  other  good  citizens  of  the 
United  States  by  the  constitution  and  laws  of  the  United  States." 

The  offences  provided  for  by  the  statute  in  question  do  noj  consist 
in  the  mere  "bandingii_or__^' conspiring"  of  twcTor  more_j3ersons  to- 
gether, but  m  their  banding  or~conspiring  with  theintent.  or  for  any, 
_of~the  puxpoieiLspecitiecC  To  bring  this  casejinder~theoperation  of 
the  statute,  therefore,  it  must  appear  that  the  right,  the  enjoyment 
of  which  the~conspirators  intended  to  "hinder  or_^revqnt,  wns  crnp.^ 
granted  or  secured  by  the  constitution  or  laws  of  the  United  States^ 
If  it  does  not  so  appear,  the  criminal_inatter  charged  has  not  been 
]^made  indictable  by  any  act  of  Congress.  ^ 

We  have  in  our  political  system  a  government  of  the  United  States 
and  a  government  of  each  of  the  several  States.  Each  one  of  these 
governments  is  distinct  from  the  others,. and  each  has  citizens  of  its 
own  who  owe  it  allegiance,  and  whose  rights,  within  its  j  urisdiction, 
it  must  protect.  The  same  person  may  be  at  the  same  time  a  citizen 
of  the  United  States  and  a  citizen  of  a  State,  but  his  rights  of  citizen- 
ship under  one  of  these  governments  will  be  different  from  those  he 
has  under  the  other.     SlaughLer-House  Cases,  16  Wall.  74, 

Citizens  are  the  members  of  the  political  community  to  which  they 
belong.  They  are  the  people  who  compose  the  community,  and  who, 
in  their  associated  capacity,  have  established  or  submitted  themselves 
to  the  dominion  of  a  government  for  the  promotion  of  their  general 
welfare  and  the  protection  of  their  individual  as  well  as  their  collec- 
tive rights.     In  the  formation  of  a  government,  the  people  may  confer 


CHAP.  I.]  UNITED   STATES   V.    CRUIKSHANK.  33 

upon  it  such  powers  as  they  choose.  The  government,  when  so 
formed,  may,  and  when  called  upon  should,  exercise  all  the  powers  it 
has  for  the  protection  of  the  rights  of  its  citizens  and  the  people 
within  its  jurisdiction;  but  it  can  exercise  no  other.  The  duty  of  a 
government  to  afford  protection  is  limited  always  by  the  power  it 
possesses  for  that  purpose. 

Experience  made  the  fact  known  to  the  people  of  the  United  States 
that  they  required  a  national  government  for  national  purposes.  The 
separate  governments  of  the  separate  States,  bound  together  by  the 
articles  of  confederation  alone,  were  not  sufficient  for  the  promo- 
tion of  the  general  welfare  of  the  people  in  respect  to  foreign  nations, 
or  for  their  complete  protection  as  citizens  of  the  confederated  States. 
For  this  reason,  the  people  of  the  United  States,  "  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty"  to  themselves  and  their  posterity 
(Const.  Preamble),  ordained  and  established  the  government  of  the 
United  States,  and  defined  its  powers  by  a  Constitution,  which  they 
adopted  as  its  fundamental  law,  and  made  its  rule  of  action. 

The  government  thus  established  and  defined  is  to  some  extent  a 
government  of  the  States  in  their  political  capacity.  It  is  also,  for 
certain  purposes,  a  government  of  the  people.  Its  powers  are  limited 
in  number,  but  not  in  degree.  Within  the  scope  of  its  powers,  as  enu- 
merated  and  defined,  it  is  supreme  and  above  the  States ;  but  beyond, 
it  has  no  existence.  It  was  erected  for  special  purposes,  and  endowed 
with  all  the  powers  necessary  for  its  own  preservation  and  the  accom- 
plishment of  the  ends  its  people  had  in  view.  It  can  neither  grant 
nor  secure  to  its  citizens  any  right  or  privilege  not  expressly  or  by 
implication  placed  under  its  jurisdiction. 

The  people  of  the  United  States  resident  within  any  State  are  sub- 
ject to  two  governments  :  one  State,  and  the  other  National ;  but 
there  need  be  no  conflict  between  the  two.  The  powers  which  one 
possesses,  the  other  does  not.  They  are  established  for  different 
purposes,  and  have  separate  jurisdictions.  Together  they  make  one 
whole,  and  furnish  the  people  of  the  United  States  with  a  complete 
government,  ample  for  the  protection  of  all  their  rights  at  home  and 
abroad.  True,  it  may  sometimes  happen  that  a  person  is  amenable 
to  both  jurisdictions  for  one  and  the  same  act.  Thus,  if  a  marshal  of 
the  United  States  is  unlawfully  resisted  while  executing  the  process 
of  the  courts  within  a  State,  and  the  resistance  is  accompanied  by  an 
assault  on  the  officer,  the  sovereignty  of  the  United  States  is  violated 
by  the  resistance,  and  that  of  the  State  by  the  breach  of  peace,  in  the 
assault.  So,  too,  if  one  passes  counterfeit  coiji  of  the  United  States 
within  a  State,  it  may  be  an  offence  against  the  United  States  and  the 
State:  the  United  States,  because  it  discredits  the  coin;  and  the 
State,  because  of  the  fraud  upon  him  to  whom  it  is  passed.  Tliis 
does  not,  however,  necessarily  imply  that  the  two  governments  pos- 

3 


^ 


34  NATURE   OP   THE   FEDERAL   CONSTITUTION,   ETC.       [CHAP.  I. 

sess  powers  in  common,  or  bring  them  into  conflict  with  each  other. 

It  is  the  natural  consequence  of  a  citizenship  wliich  owes  allegiance 

to  two  sovereignties,  and  claims  protection  from  both.     The  citizen 

cannot  complain,  because   he   has  voluntarily  submitted  himself  to 

such  a  form  of  government.     He  owes  allegiaiice  to  the  two  depart- 

jments,  so  to  speak,  and  within  their  respective  spheres  must  pav  the 

j  penalties  which  each  exacts  for  disobedience  tO-its  JaLgs.  ^_Iu_return, 

■he  can  demand  protection  from  each  within  its  own  iurisdiction. 

The  government  of  the  United  States  is  one  of  delegated  powers 

■  alone.     Its  authority  is  defined  and  limited  by  the  Constitution.     All 

powers  nnl;.^n\T,nted  t()jt  by  that  instrument  are  reserved  to  theBtates 

or  the~people No  rights  can  be  acquired~uii^r_the_con'stitution  or 

;  laws  of  the  United  States,  except  such  as  the  government  of  the 

'  United  States  liasjhe  authority~to  grant  or  secure.     All  that  cannot 

be  so  granted  or  secured  are  left  under  the  protection  of  the  States. 

We  now  proceed  to  an  examination  of  the  indictment,  to  ascertain 
■whether  the  several  rights,  which  it  is  alleged  the  defendants  intended 
to  interfere  with,  are  such  as  had  been  in  law  and  in  fact  granted  or 
secured  by  the  Constitution  or  laws  of  the  United  States. 

The  first  and  ninth  counts  state  the  intent  of  the  defendants  to  have 
been  to  hinder  and  prevent  the  citizens  named  in  the  free  exercise 
and  enjoj^raent  of  their  "  lawful  right  and  privilege  to  peaceably  as- 
semble together  with  each  other  and  with  other  citizens  of  the  United 
States  for  a  peaceful  and  lawful  purpose."  The  right  of  the  people 
peaceably  to  assemble  for  lawful  purposes  existed  long  before  the 
adoption  of  the  Constitution  of  the  United  States.  In  fact,  it  is,  and 
always  has  been,  one  of  the  attributes  of  citizenship  under  a  free  gov- 
ernment. It  "derives  its  source,"  to  nse  the  language  of  Chief 
Justice  Marshall,  in  Gibbons  v.  Ogden,  9  Wheat.  211,  "  from  those 
laws  whose  authority  is  acknowledged  by  civilized  man  throughout 
the  world."  It  is  found  wherever  civilization  exists.  It  w^as  not. 
therefore,  a  right  granted  to  the  people  by  the  Constitution.  The 
government  of  the  United  States  when  established  found  it  in  exist- 
ence, with  the  obligation  on  the  part  of  the  States  to  afford  it  protec- 
tion. As  no  direct  powerjjver  it  was  granted  to  Congress,  it  remains, 
according  to  the  ruling  in  Gibbons  v.  Ogden,  id.  203,  subject  to  State 
iurisdiction.  Only  such  existing  rights  were  committed  by  the  peo- 
ple to  the  protection  of  Congress  as  came  within  the  general  scope  of 
the  authority  granted  to  the  national  government. 

The  first  amendment  to  the  Constitution  prohibits  Congress  from 
abridging  "  the  right  of  the  people  to  assemble  and  to  petition  the 
government  for  a  redress  of  grievances."  This,  like  the  other 
amendments  proposed  and  adopted  at  the  same  time,  was  not  in- 
tended to  limit  the  powers  of  the  State  governments  in  respect  to 
their  own  citizens,  but  to  operate  upon  the  National  government 
alone.  Barron  v.  The  City  of  Baltimore,  7  Pet.  250  ;  Lessee  of  Liv- 
ingston V.  Moore,  id.  551 ;  Fox  v.  Ohio,  5  How.  434  ;  Smith  v.  Mary- 


CHAP.  I.]                       UNITED   STATES   V.    CRUIKSHANK.                                    35  i 

land,  18  id.  76;  Withers  v.   Buckley,    20  id.    90;  Pervear  v.   The  j 

Commonwealth,  5  Wall.  479  ;  Twitchell  v.  The  Commonwealth,  7  id.  1 

321;  Edwards  v.  Elliott,  21  id.  557.     It  is  now  .too  late  to  question  I 

the  correctness  of  this  construction.     As  was   said  by  the  late  Chief  ] 

Justice  in  Twitchell  v.  The  Commonwealth,  7  Wall.  325,  '*  the  scope  i 
and  application  of  these  amendments  are  no  longer  subjects  of  dis- 
cussion here."     They  left  the  authority  of  the  States  just  where  they 

found  it,  and  added  nothing  to  the  already  existing  powers  of   the  1 

United  States.  t 

The  particular  amendment  now  under  consideration  assumes  the 
existence  of  the  right  of  the  people  to  assemble  for  lawful  purposes, 

and  protects  it  against  encroachment  by  Congress.  ^JThe  right  was.  i 

not  created  by  the  amendment ;  neither  was  its  continuance  guaran-       V  i 

teed^^except  as  against  congressional  interference.  _I]or^Jheir_j)ro-     ^  I 

tection   in   its   enjojment,  therefore,  the   people   must  look  totli^    /  | 

"States.    Tlie  power  for  that~pufpo3'e  \vas  orisiiially  placed,  there,  anT^  j 
it  has  never  been  surrendered  to  the  United  States. 
"^ The  right  of^theTpeople  peaceably  to  assemble  for  the  purpose  of 

petitioning  Congress  for  a  redress  of  grievances,  or  for  any  thing  else  i 

connected  with  the  powers  or  the  duties  of  the  national  government,  i 

is  an  attribute  of  national  citizenship,  and,  as  such,  under  the  pro-  i 

tection  of,  and  guaranteed  by,  the  United  States.     The  very  idea   of  I 
a  government,  republican  in  form,  implies  a  right  on  the  part  of   its 
citizens   to   meet  peaceably  for  consultation   in    respect   to   public 
affairs  and  to  petition  for  a  redress  of  grievances.     If  it  had  been 

alleged  in  these  counts  that  the  object  of  the  defendants  was  to  pre-  ^ 
vent  a  meeting  for  such  a  purpose,  the  case  would  have  been  within  i 

the  statute,  and  within  the  scope  of  the  sovereignty  of  the  United  I  j 

States.     Such,  however,  is  not  the  case.     The  offence,  as  stated  in  !  j 
the  indictment,  will  be  made  out,  if  it  be  shown  that  the  object  of  j 
the  conspiracy  was  to  prevent  a  meeting   for  any   lawful   purpose  ^ 
whatever.  »4-A^.-t_j^,^_    ^c^y  -t^^^SZ^^L^     'ij-'-^^~C/-a-f^  /^'^'^'■'•^-c-t-jz^^ 

The  second  and  tenth  counts   are   equally  defective.     The   right  '^  V 

there  specified  is  that  of  ''bearing  arms  for  a  lawful  purpose."    This 

is  not  a  riglit  granted  by  the  Constitution.    Neither  is  it  in  any  man-  , 

ner  dependent  upon  that  instrument  for  its  existence.     The  second  ■ 

amendment  declares  that  it  shall  not  be  infringed ;  but  this,  as  has  : 

been  seen,  means  no  more  than  that  it  shall  not  be  infringed  by  Con-  j 

gress.     This  is  one  of  the  amendments  that  has  no  other  effect  than  , 
to  restrict  the  powers  of  the  national  government,  leaving  the  people 

to  look  for  their  protection    against   any  violation   by  their   fellow-  I 

citizens  of  the  rights  it  recognizes,  to  what  is  called,  in  The  City  of  ) 

New  York  v.  Miln,  11  Pet.  139,  the  "  powers  which  relate  to  merely  I 

municipal  legislation,  or  what  was,  perhaps,    more    properly  called  j 

internal  police,"  "  not  surrendered  or  restrained  "  by  the  Constitution  I 
of  the  United  States. 

The  third  and  eleventh  counts  are  even  more  objectionable.    They  ; 


36  NATURE   OF   THE    FEDERAL   CONSTITUTION,   ETC.       [CHAP.  I. 

• 
charge  the  intent  to  have  been  to  deprive  the  citizens  named,  they 
being  in  Louisiana,  **of  their  respective  several  lives  and  liberty  of 
person  without  due  process  of  law."  This  is  nothing  else  than  alleg- 
ing a  conspiracy  to  falsely  imprison  or  murder  citizens  of  the  United 
States,  being  within  the  territorial  jurisdiction  of  the  State  of 
Louisiana.  The  rights  of  lije_aiid  personal  liberty  are  natura]jig;ljts, 
of  man.  "To~secure  thesei-ights,"  says  the  Declaration  of  Inde- 
pendence, "  governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed."  The  very  highest  duty  of 
the  States,  when  they  entered  into  the  Union  under  the  Constitution, 
was  to  protect  all  persons  within  their  boundaries  in  the  enjoyment 
of  these  "  unalienable  rights  with  which  they  were  endo\ved_by  their 
Creator."  Sovereignty,  for  this  purpose,  rests  alone  with  the^Statgs- 
It  is  no  more  the  duty  or  within  the  power  of  the  United  Statesto 
punish  for  a  nnnspimnyto^faj^Rly  imprison  or  mnrrlftr  within  a  State, 
rhan  it^WDiild  beTcT  punish  for  false  imprisonment  or  murder  itself. 

TIieTburteenth~amendment  prohibits  a  State  from  depriving  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law  ;  but 
this  adds  nothing  to  the  rights  of  one  citizen  as  against  another.  It 
simply  furnishes  an  additional  guaranty  against  any  encroachment 
by  the  States  upon  the  fundamental  rights  which  belong  to  every 
citizen  as  a  member  of  society.  As  was  said  by  Mr.  Justice  Johnson, 
in  Bank  of  Columbian.  Okely,  4  Wheat.  244,  it  secures  "  the  individual 
from  the  arbitrary  exercise  of  the  powers  of  government,  unrestrained 
by  the  established  principles  of  private  rights  and  distributive  justice." 
These  counts  in  the  indictment  do  not  call  for  the  exercise  of  any  of 
the  powers  conferred  by  this  provision  in  the  amendment. 

The  fourth  and  twelfth  counts  charge  the  intent  to  have  been  to 
prevent  and  hinder  the  citizens  named,  who  were  of  African  descent 
and  persons  of  color,  in  "the  free  exercise  and  enjoyment  of  their 
several  right  and  privilege  to  the  full  and  equal  benefit  of  all  laws 
and  proceedings,  then  and  there,  before  that  time,  enacted  or  ordained 
by  the  said  State  of  Lousiana  and  by  the  United  States ;  and  then 
and  there,  at  that  time,  being  in  force  in  the  said  State  and  District  of 
Louisiana  aforesaid,  for  the  security  of  their  respective  persons  and 
property,  then  and  there,  at  that  time  enjoyed  at  and  within  said 
State  and  District  of  Louisiana  by  white  persons,  being  citizens  of 
said  State  of  Louisiana  and  the  United  States,  for  the  protection  of 

'the  persons  and  property  of  said  white  citizens."  There  is  no  allega- 
tion that  this  was  done  because  of  the  race  or  color  of  the  persons 
conspired  against.  When  stripped  of  its  verbiage,  the  case  as  pre- 
sented amounts  to  nothing  more  than  that  the  defendants   conspired 

/to  prevent  certain  citizens  of  the  United  States,  being  within  the 
State  of  Louisiana,  from  enjoying  the  equal  protection  of  the  laws 
of  the  State  and  of  the  United  States. 

The  fourteenth  amendment  prohibits  a  State  from  denying  to  any 
^person  within  its  jurisdiction  the  equal  protection  of  the  laws  ;  but 


y.Oi^  cL,^^_^  -:£<^t^ 


CHAP.  I.]  UNITED   STATES   V.    CRUIKSHANK.  37 

this    provision  does  not,  any  more  than  the  one  which  precedes  it, 
and  which  we  have  just  considered,  add  any  thing  to  the  rights  which 
one  citizen  has  under  the  Constitution  against  another,    Tlie  equality 
of  the  rights  of  citizens  is  a  principle  of  republicanism.     Every  rej- 
publican  government  is  in  duty-bound  to  protect  all  its  citizens  in_^ 
the_enjoyment  of  this  principle,  if  within  its  power.  ^Fhat,  duty_jvas, 
originally  assumed  by  the  States;  and  it  still_re"m'ains  there.     The_. 
'only^obliglition'l^esting  upon  the  United  ^tatesis_to__sgg^^^j^ 
gtates  do  not  deny~the  right.     This  the^mendment  guarantees,  but" 
Ho  moi'g: — Tge^ower  ot  the  national  government  is  limited  to  the 
enforcement  of-this  guaranty. 

"^[The  sufficiency  of  the  counts  of  the  indictment  are  next  con- 
sidered and  they  are  held  to  be  insufficient  under  the  principles 
stated  or  too  vague  and  uncertain  to  charge  a  crime.] 

The  order  of  the  Circuit  Court  arresting  the  judgment  upon  the 

verdict  is,   therefore,  affirmed;  and  the  cause  remanded,  ivith 

instructions  to  discharge  the  defendants} 

1  Mr.  Justice  Clifford  dissented. 

In  the  Civil  Rights  Cases  (U.  S.  v.  Stanley,  and  other  cases),  109  U.  S.  3  (1883), 
the  validity  of  an  Act  of  Congress,  entitled  "  An  Act  to  protect  all  citizens  in  their 
civil  and  legal  rights,"  was  called  in  question.  The  statute  made  it  criminal  for  any 
person  to  deny  to  any  citizen  on  account  of  race  or  color  the  full  and  equal  enjoy- 
ment of  the  privileges  and  accommodations  of  inns,  public  conveyances,  theatres,  and 
other  places  of  public  amusement. 

Mr.  Justice  Bradley,  after  quoting  the  first  section  of  the  fourteenth  amend- 
ment, says: — 

"  It  is  State  action  of  a  particular  character  that  is  proliibited.  Individual  invasion 
of  individual  rights  is  not  the  subject-matter  of  the  amendment.  It  has  a  deeper  and 
broader  scope.  It  nullifies  and  makes  void  all  State  legislation,  and  State  action  of 
everv  kind,  which  impairs  the  privileges  and  immunities  of  citizens  of  the  United 
States,  or  which  injures  them  in  life,  liberty,  or  property  without  due  process  of  law, 
or  which  denies  to  any  of  them  the  equal  protection  of  the  laws.  It  not  only  does  this, 
but,  in  order  that  the  national  will,  thus  declared,  may  not  be  a  mere  hrutum  falmen, 
the  last  section  of  the  amendment  invests  Congress  with  power  to  enforce  it  by  appro- 
priate legislation.  To  enforce  what  ?  To  enforce  tlie  prohibition.  To  adoj)t  appro- 
priate legislation  for  correcting  the  effects  of  such  prohibited  State  laws  and  State 
acts,  and  thus  to  render  them  effectually  null,  void,  and  innocuou.s.  This  is  the  legis- 
lative power  conferred  upon  Congress,  and  this  is  the  whole  of  it.  It  does  not  invest 
Congress  with  power  to  legislate  upon  subjects  whicli  are  within  the  domain  of  State 
legislation ;  but  to  provide  modes  of  relief  against  State  legislation,  or  State  action,  of 
the  kind  referred  to.  It  does  not  authorize  Congress  to  create  a  code  of  municipal 
law  for  the  regulation  of  private  rights ;  but  to  provide  modes  of  redress  against  the 
operation  of  State  laws,  and  the  action  of  Statfe  oflScers,  executive  or  judicial,  when 
these  are  subversive  of  the  fundamental  rights  specified  in  the  amendment.  Tositive 
rights  and  privileges  are  undoubtedly  secured  by  the  fourteenth  amendment:  but 
they  are  secured  by  way  of  prohibition  against  State  laws  and  State  proceedings  affect- 
ing those  rights  and  privileges,  and  by  power  given  to  Congress  to  legislate  fnr  the 
purpose  of  carrving  such  prohil)ition  into  effect :  and  such  legislation  must  necessarily 
be  predicated  upon  such  supposed  State  laws  or  State  proceedings,  and  be  directed  to 
the  correction  of  their  ojjer.ation  and  effect.  A  quite  full  discussion  of  this  aspect  of 
the  amendment  may  be  found  in  United  States  v.  Cruikshank,  92  U.  S.  542;  Virginia 
V.  Rives,  100  U.  S.  313 ;  and  Ex  parte  Virginia,  100  U.  S.  ;i39. 

"  An  apt  illustration  of  this  distinction  may  be  found  in  some  of  the  provisions  of 


38  NATURE    OF    THE    FEDERAL    CONSTITUTION,    ETC.       [CHAP.  I. 

the  original  Constitution.  Take  the  subject  of  contracts,  for  example.  The  Consti- 
tution prohibited  the  ^States  from  passing  any  law  impairing  tiie  obligation  of 
contracts.  This  did  not  give  to  Congress  power  to  provide  laws  for  the  general 
enforcement  of  contracts ;  nor  power  to  invest  the  courts  of  the  Uuittd  fStates  with 
jurisdiction  over  contracts,  so  as  to  enable  parties  to  sue  upon  tliem  in  those  courts. 
It  did,  however,  give  the  power  to  provide  remedies  by  wliich  the  impairment  of  con- 
tracts by  State  legislation  might  be  counteracted  and  corrected :  and  this  power  was 
exercised.  The  remedy  which  Congress?  actually  provided  was  that  contained  in  the 
25th  section  of  the  Judiciary  Act  of  1789,  1  8tat.  8.5,  giving  to  tlie  Supreme  Court  of 
tiie  United  States  jnrisiiiction  by  writ  of  error  to  review  the  final  decisions  of  State 
courts  whenever  they  should  sustain  the  validity  of  a  State  statute  or  autliority 
alleged  to  be  repugnant  to  the  Constitution  or  laws  of  the  United  States.  By  thi.s 
means,  if  a  State  law  was  passed  impairing  the  obligation  of  a  contract,  and  the 
State  tribunals  sustained  the  validity  of  the  law,  the  mischief  could  be  corrected  in 
this  court.  The  legislation  of  Congress,  and  the  proceedings  provided  for  under  it, 
were  corrective  in  their  character.  No  attempt  was  made  to  draw  into  the  Uui!;ed 
States  courts  the  litigation  of  contracts  generally  ;  and  no  such  attempt  would  have 
been  sustained  We  do  not  say  that  tiie  remedy  provided  was  the  only  one  that 
might  have  been  provided  iu  that  case.  Probably  Congress  had  power  to  pass  a  law 
giving  to  the  courts  of  the  United  States  direct  jurisdiction  over  contracts  alleged  to 
be  impaired  by  a  State  law  ;  and  under  the  l)road  provisions  of  the  act  of  March  .3d, 
1875,  cli.  137,  18  Stat.  470,  giving  to  the  circuit  courts  jurisdiction  of  all  cases  arising 
under  the  Constitution  and  laws  of  tlie  United  States,  it  is  jiossible  that  such  juris- 
diction now  exists.  But  under  that,  or  any  other  law,  it  must  appear  as  well  by 
allegation,  as  proof  at  the  trial,  that  the  Constitution  had  been  violated  by  the  action 
of  the  State  legislature.  Some  obnoxious  State  law  passed,  or  that  might  be  passed, 
is  necessary  to  be  assumed  in  order  to  lay  the  foundation  of  any  federal  remedy  iu 
the  case;  and  for  the  very  sufficient  reas(jn,  that  the  constitutional  jiroliibition  is 
against  State  laws  impairing  the  obligation  of  contracts. 

"  And  so  in  the  present  case,  until  some  State  law  has  been  passed,  or  some  State 
action  through  its  officers  or  agents  has  been  taken,  adverse  to  the  rights  of  citizens 
souirht  to  be  protected  by  tlie  fourteentli  amendment,  no  legislation  of  tlie  United 
States  under  said  amendment,  nor  any  proceeding  under  such  legislation,  can  be 
called  into  activity  ;  for  the  prohibitions  of  the  amendment  are  against  State  laws  and 
acts  done  under  State  authority.  Of  course,  degislation  may,  and  should  be,  provided 
in  advance  to  meet  the  exigency  when  it  arises ;  but  it  should  be  adapted  to  the  mis- 
chief and  wrong  wliich  the  amendment  was  intended  to  provide  against;  and  that  is. 
State  laws,  or  State  action  of  some  kind,  adverse  to  the  rights  of  the  citizen  secured 
by  the  amendment  Such  legislation  cannot  ])roperly  cover  tlie  whole  domain  of  riglits 
appertaining  to  life,  liberty  and  property,  defining  them  and  providing  for  their  vin- 
dication. That  would  be  to  establish  a  code  of  municipal  law  regulative  of  all  private 
rights  between  man  and  man  in  society.  It  would  be  to  make  Congress  take  the 
place  of  the  State  legislatures  and  to  supersede  them.  It  is  absurd  to  affirm  that, 
because  the  rights  of  life,  liberty  and  property  (which  include  all  civil  rights  tliat  men 
have),  are  by  the  amendment  souffht  to  be  protected  against  invasion  on  the  part  of 
the  State  without  due  process  of  law.  Congress  may  therefore  provide  due  process  of 
law  for  their  vindication  in  every  case  ;  and  that,  because  the  denial  by  a  State  to  any 
persons  of  the  equal  protection  of  the  laws  is  proliibited  by  the  amendment,  therefore 
Congress  may  estal)Iish  laws  for  their  ecpial  protection.  In  fine,  the  legislation  wliich 
Consrress  is  authorized  to  adopt  in  tliis  behalf  is  not  general  legislation  uiion  the 
rights  of  the  citizen,  but  corrective  legislation,  that  is,  such  as  may  be  necessary  and 
proper  for  counteracting  such  laws  as  the  States  may  adopt  or  enforce,  and  which,  by 
the  amendment,  they  are  prohibited  from  making  or  enforcing,  or  such  acts  and  pro- 
ceedings as  the  States  may  commit  or  take,  and  which,  by  the  amendment,  they  are 
prohibited  from  committing  or  taking.  It  is  not  necessary  for  us  to  state,  if  we 
could,  what  legislation  would  be  proper  for  Congress  to  adopt.  It  is  sufficient  for  us 
to  examine  whether  the  law  in  question  is  of  that  character." 


CHAP.  I.]  CIVIL   RIGHTS   CASES,  39 

The  Court  conclndes  that  the  act  in  question  is  not  directed  against  State  action, 
and  therefore  is  not  within  the  power  conferred  on  Congress  by  the  amendment. 

The  Court  further  considers  wiiether  the  act  is  within  any  power  given  to  Con- 
gress by  the  thirteenth  amendment,  and  eouclades  that  the  denial  of  jirivileges  for- 
bidden by  the  Act  would  not  amount  to  shivery  or  involuntary  servitude  within  the 
provisions  of  that  amendment.     Tlie  Court  continues :  — 

"  We  must  not  forget  that  the  province  and  scojte  of  tlie  thirteenth  and  four- 
teenth amendments  are  different ;  the  former  simply  alxjlished  slaverj-  :  the  latter 
prohibited  the  States  from  abridging  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;  from  depriving  them  of  life,  liberty,  or  property  without  due  process 
of  law,  and  from  denying  to  any  the  equal  protection  of  the  laws.  The  amendments 
are  different,  and  the  powers  of  Congress  under  them  are  different.  What  Congress 
has  power  to  do  under  one,  it  may  not  have  power  to  do  under  the  other.  Under  the 
thirteenth  amendment,  it  has  only  to  do  with  slavery  and  its  incidents.  Under  the 
fourteenth  amendment,  it  has  power  to  counteract  and  render  nugatory  all  State 
laws  and  proceedings  which  have  the  effect  to  abridge  any  of  the  privileges  or  im- 
munities of  citizens  of  the  United  States,  or  to  deprive  them  of  life,  lilierty  or 
property  without  due  process  of  law,  or  to  deny  to  any  of  them  the  equal  protection 
of  the  laws.  Under  tlie  thirteenth  amendment,  the  legislation,  so  far  as  necessary 
or  proper  to  eradicate  all  forms  and  incidents  of  slavery  and  involuntary  servitude, 
may  be  direct  and  primary,  operating  upon  the  acts  of  individuals,  wlietlier  sanctioned 
by  Stete  legislation  or  not ;  under  tlie  fourteenth,  as  we  have  already  shown,  it  must 
necessarily  be,  and  can  only  be,  corrective  in  its  character,  addressed  to  counteract 
and  afford  relief  against  State  regulations  or  proceedings." 

Mr.  Justice  Harlan  delivered  a  dissenting  opinion. 

In  the  case  of  Rogers  v.  Alabama,  192  U.  S.  226,  24  Sup.  Ct.  Rep.  257  (1904),  it 
was  contended  for  the  plaintiff  in  error  that  he  had  been  denied  in  the  State  court  the 
equal  protection  of  the  laws  guaranteed  by  the  Fourteenth  Amendment,  in  that  the 
indictment  against  him  had  been  returned  by  a  grand  jury  from  wliich  the  jury  com- 
missioners had  excluded  all  colored  persons,  although  largely  in  the  majority  of  the 
population  of  the  county  in  which  the  indictment  was  returned,  and  although  other- 
wise qualified  to  serve  as  grand  jurors,  solely  on  the  ground  of  their  race  and  color  and 
of  their  having  been  disJranciiised  and  deprived  of  all  rights  as  electors  in  the  State  by 
the  provisions  of  its  new  constitution.  Mk.  Justice  Holmes  announced  the  conclu- 
sion of  the  court  as  follows  : 

"  We  are  of  opinion  that  the  Federal  question  is  raised  by  the  record  and  is 
properly  before  us.  That  question  is  disposed  of  by  Carter  v.  Te.xas,  177  U.  S.  442, 
and  it  was  error  not  to  apply  that  decision.  The  result  of  that  and  the  earlier  cases 
may  be  summed  up  in  the  following  words  of  tlie  judgment  delivereil  by  Mr.  Justice 
Gray :  '  Whenever  by  any  action  of  a  State,  whether  tlirough  its  legislature,  through 
its  courts,  or  through  its  executive  or  administrative  officers,  all  j)ersons  of  the  African 
race  are  excluded,  solely  because  of  their  race  or  color,  from  serving  as  grand  jurors  in 
the  criminal  prosecution  of  a  person  of  tiie  African  race,  tlie  equal  protection  of  the 
laws  is  denied  to  him,  contrary  to  the  Fourteenth  Amendment  of  the  Con.stitutiou  of 
the  United  States.  Strauder  r.  West  Virginia,  100  U.  S.  30.3;  Neal  v.  Delaware,  103 
U.  S.  370,  397  ;  Gibson  v.  Mississippi,  162  U.  S.  565.'  " 


40  RELATION   OF  STATES  TO    FEDERAL  GOVERNMENT.      [CHAF.  II. 


CHAPTER  II. 
RELATION  OF  THE  STATES  TO  THE  FEDERAL  GOVERNMENT 


MAKTIN  V.  HUNTER'S  LESSEE. 

1  Wheaton,  304 ;  3  Curtis,  562.     1816. 

[See  page  746,  infra,'] 


LANE  COUNTY  v.   OREGON. 
7  Wallace,  71.     1868. 

[After  the  passage  by  Congress  of  the  legal  tender  act,  it  was 
provided  by  statute  in  Oregon  that  county  officers  should  collect  the 
State  taxes  in  gold  and  silver  coin,  and  that  the  counties  should  pay 
such  taxes  into  the  State  treasury  in  the  same  kinds  of_  money. 
Under  this  statute  the  State  brought  action  in  a  State  court  against 
Lane  County  for  a  certain  number  of  dollars  "in  gold  and  silver  coin," 
alleged  to  be  due  from  the  county  as  State  revenue.  Defendant  pleaded 
a  tender  in  United  States  legal  tender  notes.  A  demurrer  to  this 
answer  was  sustained,  and  judgment  rendered  against  defendant  for 
recovery  of  the  amount  claimed  in  gold  and  silver  coin,  and  this  judg- 
ment was  affirmed  in  the  State  Supreme  Court.  Defendant  brought 
the  case  to  this  court  on  writ  of  error.] 

Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  court. 

[The  legal  tender  acts  of  Congress  are  referred  to,  providing  for 
the  issue  of  United  States  notes,  which  should  be  receivable  in 
payment  of  all  taxes,  debts,  and  demands  due  to  the  United  States, 
except  duties  on  imports,  and  should  be  lawful  money  and  legal 
tender  in  payment  of  all  debts,  public  and  private,  within  the  United 
States.] 

The  first  of  these  was  the  act  of  February  25,  1862,  which  author- 
ized the  Secretary  of  the  Treasury  to  issue,  on  the  credit  of  the  United 
States,  one  hundred  and  fifty  millions  of  dollars  in  United  States 
notes,  and  provided  that  these  notes  "shall  be  receivable  in  payment 
of  all  taxes,  internal  duties,  excises,  debts  and  demands  due  to  the 
United  States,  except  duties  on  imports,  and  of  all  claims  and  demands 
against  the  United  States  of  every  kind  whatsoever,  except  interest 
on  bonds  and  notes,  which  shall  be  paid  in  coin ;  and  shall  also  be 
lawful  money  and  legal  tender  in  payment  of  all  debts,  public  and 


CHAP.  II.]  LANE  COUNTY  V.    OREGON.  41 

private,  within   the  United   States,   except  duties  on   imports   and 
interest  as  aforesaid." 

The  second  act  contains  a  provision  nearly  in  the  same  words  with 
that  just  recited,  and  under  these  two  acts  two-thirds  of  the  entire 
issue  was  authorized.  It  is  unnecessary,  therefore,  to  refer  to  the 
third  act,  by  which  the  notes  to  be  issued  under  it  are  not  in  terms 
made  receivable  and  payable,  but  are  simply  declared  to  be  lawful 
money  and  a  legal  tender. 

In  the  first  act  no  emission  was  authorized  of  any  notes  under  five 
dollars,  nor  in  the  other  two  of  any  under  one  dollar.  The  notes, 
authorized  by  different  statutes,  for  parts  of  a  dollar,  were  never 
declared  to  be  lawful  money  or  a  legal  tender.  12  Stat,  at  Large, 
592;  ib.  711. 

It  is  obvious,  therefore,  that  a  legal  tender  in  United  States  notes 
of  the  precise  amount  of  taxes  admitted  to  be  due  to  the  State  could 
not  be  made.  Coin  was  then,  and  is  now,  the  only  legal  tender  for 
debts  less  than  one  dollar.  In  the  view  which  we  take  of  this  case, 
this  is  not  important.  It  is  mentioned  only  to  show  that  the  general 
words,  "  all  debts,"  were  not  intended  to  be  taken  in  a  sense  absolutely 
literal. 

We  proceed  then  to  inquire  whether,  upon  a  sound  construction  of 
the  acts,  taxes  imposed  by  a  State  government  upon  the  people  of  the 
State,  are  debts  within  their  true  meaning. 

In  examining  this  question  it  will  be  proper  to  give  some  attention 
to  the  constitution  of  the  States  and  to  their  relations  as  United 
States. 

The  people  of  the  United  States  constitute  one  nation,  under  one 
government,  and  this  government,  within  the  scope  of  the  powers 
with  which  it  is  invested,  is  supreme.  On  the  other  hand,  the  people 
of  each  State  compose  a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate  and  independent 
existence.  The  States  disunited  might  continue  to  exist.  Without 
the  States  in  union  there  could  be  no  such  political  body  as  the  United 
States. 

Both  the  States  and  the  United  States  existed  before  the  Constitu- 
tion.  The  people,  through  that  instrument,  established  a  mare  per- 
fect \inion  by  substituting  a  national  government,_acting,  with  amjile 
power,  ^irectly  upon  Jhe  citizens,  instead  of  the  Confederate  govern- 
ment,  wiiich  ^ted  with  powers,  greatly  restricted,  only  upon_the 
States.  But  in  many  articles  of  the  Constitution  theliecessary  exist- 
enci^oTthe  States,  and,  within  their  proper  spheres,^_thejndepend(3t 
^authority  of  the  States,  is  distinctly^  recognized.  To  them  nearly  tlie 
"whole  charge  of  interior  regulation  is  committed  or  left;  to  them 
and  to  the  people  all  powers  not  expressly  delegated  to  the  national 
government  are  reserved.  The  general  condition  was  well  stated 
by  Mr.  ]\Iadison  in  the  Federalist,  thus  :  "  The  Federal  and  State 
governments  are  in  fact  but  different  agents  and  trustees  of    the 


42 


RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  II. 


people,  constituted  with  different  powers  and  designated  for  different 
purposes." 

Now,  to  the  existence  of  the  States^jthemselves  necessar^^Jo  the^ 
^^tence^tHeTJmted'S tates^ the  power  of  taxa^ionjsTiidlipe^ab^ 
It  is  an  essential  function  of^government^.     It  was  exercised  by  the 
CoTonlesJlincrwTien  the'ColoniesTecame  States,  both  before  and  after 
the  formation  of  the  Confederation,  it  was  exercised  by  the  new  gov- 
ernments.    Under  the  Articles  of  Confederation  the  government  of 
the  United  States  was  limited  in  the  exercise  of  this  power  to  requi- 
sitions upon  the  States,  while  the  whole  power  of  direct  and  indirect 
taxation  of  persons  and  property,  whether  by  taxes  on  polls,  or  duties 
on  imports,  or  duties  on  internal  production,  manufacture,  or  use,  was 
acknowledged  to  belong  exclusively  to  the  States,  without  any  other 
limitation  than  that  of  non-interference  with  certain  treaties  made  by 
Congress.     ThejQoMtitution;  it  is  true,  greatly  changed  this  condition 
of  things.     It  gave  the  power  to  tax,  botli_directly  and  indj^ectly,  to 
the  national  gov^rnmentTand^subject  to  the  one_groInbitIon!M,anx 
tax  ^bu'exports  and  to  the  conditions  of  unifQrml|v  in  respect  to 
■Indirect  and^of  proportion  in  respect  to  dire'ct  ;^xes,  ihe~pbwer  was 
■^ven'without  any  express' reservation.  ~ On 'the'"'5^F hancTTlTo  pl)wer 
to  tax  exports,  or  imports  except  for  a  single  purpose  and  to  an  in- 
signiiicant  extent,  or  to  lay  any  duty  on  tonnage,  was  permitted  to 
,the  States.     In  respect,  however,  to  property,  business,  and  person^ 
within  their  respective  limits,  their  power  of  taxation  remained  and 
remains  entire.     It- is  indeed  a  concurrent  power,  and  in  the  case^^oTaT 
lax  on  the  same  subject  by  both  governments,  th.e  claim  of  the  United^ 
[States,  as  the  supreme  authority,  must  be  preferred ;  but  with  this^ 
I  qualification  it  is  absolute.     The  extent  to  which  it  sTiall  be  exercised, 
""the  subjects  upon  which  it  shall  be  exercised,  and  the  mode  in  which 
it  shall  be  exercised,  are  all  equally  within  the  discretion  of  tlieJegis; 
latures  to  which  the  States  commit  the  exercise  of  the  power.     That 
discretion  is  restrained  only  by  the  will  of  the  people  expressed  in 
the  State  constitutions  or  through  elections,  and  by  the  condition  thflt 
it  must  not  be  so  used  as  to  burden  or  embarrass  the  operations  of 
the  national  government.     There  is  nothing  in  the  Constitution  which 
contemplates  or  authorizes  any  direct  abridgement  of  this  power  by 
national  legislation.     To  the  extent  just  indicated  it  is  as  complete 
in  the  States  as  the  like  power,  within  the  limits  of  the  Constitution, 
is  complete  in  Congress.     If,  therefore,  the  condition  of  any  State, 
in  the  judgment  of  its  legislature,  requires  the  collection  of  taxes  in 
t  kind,  that  is  to  say,  by  the  delivery  to  the  proper  officers  of  a  certain 
,'    proportion  of  products,  or  in  gold  and  silver  bullion,  or  in  gold  and 
silver  coin,  it  is  not  easy  to  see  upon  what  principle  the  national 
legislature  can  interfere  with  the  exercise,  to  that  end,  of  this  ppwej;, 
original  in  the  States,  and  never  as  yet  surrendered.     If  this  be  so,  it 
is  certainly,  a  reasonable  conclusion  that  Congress  did  not  intend,  by 
the  general  terms  of  the  currency  acts,  to  restrain  the  exercise  of  this 
power  in  the  manner  shown  by  the  statutes  of  Oregon. 


CHAP.  II.] 


TARBLE  S   CASE. 


43 


[The  Court  refers  to  the  language  of  the  acts  to  show  that  it 
was  not  intended  that  taxes  payable  to  a  State  should  be  included 
under  the  terra,  "  debts,  public  and  private."  The  judgment  of  the 
State  court  is  affirmed.] 


TAEBLE'S   CASE. 
13  Wallace,  307.     1S71. 

[This  was  a  proceeding  by  habeas  corpus  under  the  laws  of  Wis- 
consin to  determine  the  rightfulness  of  the  detention  of  a  person  by 
an  officer  of  the  United  States  army  under  the  claim  that  he  was  a 
duly  enlisted  soldier.  From  a  decision  of  the  Supreme  Court  of  the 
State,  sustaining  an  order  of  release,  the  United  States  prosecuted 
a  writ  of  error  before  this  court.] 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court,  as  follows : 

The  important  question  is  thus  presented,  whether  a  State 
court  commissioner  has  jurisdiction,  upon  habeas  corjms^  to  inquire 
into  the  validity  of  the  enlistment  of  sokliers  into  the  military  service 
of  the  United  States,  and  to  discharge  them  from  such  service  when, 
in  his  judgment,  their  enlistment  has  not  been  made  in  conformity 
with  the  laws  of  the  United  States.  The  question  presented  may  be  \ 
more  generally  stated  thus:  Whether  any  judicial  officer  of  a  State/ 
has  jurisdiction  to  issue  a  writ  of  habeas  corjms,  or  to  continue 
proceedings  under  the  writ  when  issued,  for  the  discharge  of  a  person 
held  under  the  authority,  or  claim  and  color  of  the  authority,  of  the/ 
United  States,  by  an  officer  of  that  government.  For  it  is  evident,' 
if  such  jurisdiction  may  be  exercised  by  any  judicial  officer  of  a  State, 
it  may  be  exercised  by  the  court  commissioner  within  the  county  for 
which  he  is  appointed;  and  if  it  may  be  exercised  with  reference 
to  soldiers  detained  in  the  military  service  of  the  United  States, 
whose  enlistment  is  alleged  to  have  been  illegally  made,  it  may  be 
exercised  with  reference  to  persons  employed  in  any  other  depart- 
ment of  the  public  service  when  their  illegal  detention  is  ass(n'ted. 
It  may  be  exercised  in  all  cases  where  parties  are  held  under  the 
authority  of  the  United  States,  whenever  the  invalidity  of  the 
exercise  of  that  authority  is  affirmed.  The  jurisdiction,  if_it_  exist/ 
at  all,  can  only  be  limited  in  its  a])])lication  b}'  the  legislative  power! 

of the    State.      It    may    even    reach   to   parties    imprisoned    under; 

.sentence  of  the  "^National  courts,  after  regular  indictment,  trial,  audi 
_conviction,  for  offences  against  the  laws  of  the  United  States.  As 
we  read  the  opinion  of  the  Supreme  Court  of  Wisconsin  in  this  case, 
this  is  the  claim  of  authority  asserted  by  that  tribunal  for  itself  and 
for  the  judicial  officers  of  that  State.     It  does,  indeed,  disclaim  any 


I 


44  RELATION   OF   STATES   TO    FEDERAL    GOVERNMENT.       [CHAP,  II. 


/ 


right  of  either  to  interfere  with  parties  in  custody,  under  judicial 
sentence,  when  the  National  court  pronouncing  sentence  had  juris- 
diction to  try  and  punish  the  offendel-s,  but  it  asserts,  at  the  same 
time,  for  itself  and  for  each  of  those  officers,  the  right  to  determine, 
upon  habeas  corpus,  in  all  cases,  whether  that  court  ever  had  such 
jurisdiction.  In  the  case  of  Booth,  which  subsequently  came  before 
this  court,  it  not  only  sustained  the  action  of  one  of  its  justices  in 
discharging  a  prisoner  held  in  custody  by  a  marshal  of  the  United 
States,  under  a  warrant  of  commitment  for  an  offence  against  tlie 
laws  of  the  United  States,  issued  by  a  commissioner  of  the  United 
States ;  but  it  discharged  the  same  prisoner  when  subsequently 
confined  under  sentence  of  the  District  Court  of  the  United  States 
for  the  same  offence,  after  indictment,  trial,  and  conviction,  on  the 
ground  that,  in  its  judgment,  the  act  of  Congress  creating  the  offence 
was  unconstitutional ;  and  in  order  that  its  decision  in  that  respect 
should  be  final  and  conclusive,  directed  its  clerk  to  refuse  obedience 
to  the  writ  of  error  issued  by  this  court,  under  the  act  of  Congress, 
to  bring  up  the  decision  for  review. 

It  is  evident,  as  said  by  this  court  when  the  case  of  Booth  was 
finally  brought  before  it,  if  the  power  asserted  by  that  State  court 
existed,  no  offence  against  the  laws  of  the  United  States  could  be 
punished  by  their  own  tribunals,  without  the  permission  and  accord- 
ing to  the  judgment  of  the  courts  of  the  State  in  which  the  parties 
happen  to  be  imprisoned ;  that  if  that  power  existed  in  that  State 
court,  it  belonged  equally  to  every  other  State  court  in  the  Union 
where  a  prisoner  was  within  its  territorial  limits  ;  and,  as  the 
different  State  courts  could  not  always  agree,  it  would  often  hap- 
pen that  an  act,  which  was  admitted  to  be  an  offence  and  justly 
punishable  in  one  State,  would  be  regarded  as  innocent,  and  even 
praiseworthy  in  another,  and  no  one  could  suppose  that  a  govern- 
ment, which  had  hitherto  lasted  for  seventy  years,  "enforcing  its 
laws  by  its  own  tribunals,  and  preserving  the  union  of  the  States, 
could  have  lasted  a  single  year,  or  fulfilled  the  trusts  committed  to 
it,  if  offences  against  its  laws  could  not  have  been  punished  without 
the  consent  of  the  State  in  which  the  culprit  was  found." 
""'  The  decision  of  this  court  in  the  two  cases  which  grew  out  of  the 
arrest  of  Booth,  that  of  Ableman  v.  Booth,  and  that  of  The  United 
States  V.  Booth,  21  How.,  506,  disposes  alike  of  the  claim  of  juris- 
diction by  a  State  court,  or  by  a  State  judge,  to  interfere  Avith 
the  authority  of  the  United  States,  whether  that  authority  be 
exercised  by  a  Federal  officer  or  be  exercised  by  a  Federal  tribunal. 
In  the  first  of  these  cases  Booth  had  been  arrested  and  committed  to 
the  custody  of  a  marshal  of  the  United  States  by  a  commissioner 
appointed  by  the  District  Court  of  the  United  States,  upon  a  charge 
of  having  aided  and  abetted  the  escape  of  a  fugitive  slave.  Whilst 
thus  in  custody  a  justice  of  the  Supreme  Court  of  Wisconsin  issued 
a  writ  of  habeas  corpus  directed  to  the  marshal,  requiring   him  to 


CHAP.  II.]  tarble's  case.  45 

produce  the  body  of  Booth  with  the  cause  of  his  imprisonment. 
The  marslial  made  a  return,  stating  that  he  hehl  the  prisoner  upon 
the  warrant  of  the  commissioner,  a  copy  of  which  he  annexed  to  and 
returned  with  the  writ.  To  this  return  Booth  demurred  as  insufficient 
in  law  to  justify  his  detention,  and,  upon  the  hearing  which  followed, 
the  justice  held  his  detention  illegal,  and  ordered  his  discharge.  The 
marshal  thereupon  applied  for  and  obtained  a  certiorari,  and  had  the 
proceedings  removed  to  the  Supreme  Court  of  the  State,  where,  after 
argument,  the  order  of  the  justice  discharging  the  prisoner  from  custody 
was  affirmed.  The  decision  proceeded  upon  the  ground  that  the  act 
of  Congress  respecting  fugitive  slaves  was  unconstitutional  and  void. 

In  the  second  case,  Booth  had  been  indicted  for  the  offence  with 
which  he  was  charged  before  the  commissioner,  and  from  which  the 
State  judge  had  discharged  him,  and  had  been  tried  and  convicted  in 
the  District  Court  of  the  United  States  for  the  District  of  Wisconsin, 
and  been  sentenced  to  pay  a  fine  of  JjlOOO,  and  to  be  imprisoned 
for  one  month.  Whilst  in  imprisonment,  in  execution  of  this 
sentence,  application  was  made  by  Booth  to  the  Supreme  Court  of 
the  State,  for  a  writ  of  habeas  corpus,  alleging  in  his  application  that 
his  imprisonment  was  illegal,  by  reason  of  the  unconstitutionality 
of  the  fugitive  slave  law,  and  that  the  District  Court  had  no  juris- 
diction to  try  or  punish  him  for  the  matter  charged  against  him. 
The  court  granted  the  application,  and  issued  the  writ,  to  which  the 
sheriff,  to  whom  the  prisoner  had  been  committed  by  the  marshal, 
returned  that  he  held  the  prisoner  by  virtue  of  the  proceedings  and 
sentence  of  the  District  Court,  a  copy  of  which  was  annexed  to  his 
return.  Upon  demurrer  to  this  return,  the  court  adjudged  the 
imprisonment  of  Booth  to  be  illegal,  and  ordered  him  to  be  discharged 
from  custody,  and  he  was  accordingly  set  at  liberty. 

For  a  review  in  this  court  of  the  judgments  in  both  of  these  cases, 
writs  of  error  were  prosecuted.  No  return,  however,  was  made  to 
the  writs,  the  clerk  of  the  Supreme  Court  of  Wisconsin  having  been 
directed  by  that  court  to  refuse  obedience  to  them ;  but  copies  of  the 
records  were  filed  by  the  Attorney-General,  and  it  was  ordered  by 
this  court  that  they  should  be  received  with  the  same  effect  and 
legal  operation  as  if  returned  by  the  clerk.  The  cases  were  after- 
wards heard  and  considered  together,  and  the  decision  of  both  was 
announced  in  the  same  opinion.  In  that  opinion  the  Chief  Justice 
details  the  facts  of  the  two  cases  at  length,  and  comments  upon  the 
characcer  of  the  jurisdiction  asserted  by  the  State  judge  and  the 
State  court ;  by  the  State  judge  to  supervise  and  annul  the  ]>roceed- 
ings  of  a  commissioner  of  the  United  States,  and  to  discharge  a 
prisoner  committed  by  him  for  an  offence  against  the  laws  of  the 
United  States  ;  and  by  the  State  court  to  supervise  and  annul  the 
proceedings  and  judgment  of  a  District  Court  of  the  United  States, 
and  to  discharge  a  prisoner  who  had  been  indicted,  tried,  and  found 
guilty  of  an  offence  against  the  laws  of  the  United  States  and 
sentenced  to  imprisonment   by  that  court. 


46  RELATION    OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  U. 

And  in  answer  to  this  assumption  of  judicial  power  by  the  judges 
and  by  the  Supreme  Court  of  Wisconsin  thus  made,  the  Chief 
Justice  said  as  follows :  If  they  "  possess  the  jurisdiction  they  claim, 
tliey  must  derive  it  either  from  the  United  States  or  the  State. 
It  certainly  has  not  been  conferred  on  them  by  the  United  States; 
and  it  is  equally  clear  it  was  not  in  the  power  of  the  State  to 
confer  it,  even  if  it  had  attempted  to  do  so;  for  no  State  can  author- 
ize one  of  its  judges  or  courts  to  exercise  judicial  power,  by  habeas 
corpus  or  otherwise,  within  the  jurisdiction  of  another  and  independ- 
ent government.  And  although  the  State  of  Wisconsin  is  sovereign 
within  its  territorial  limits  to  a  certain  extent,  yet  that  sovereignty 
is  limited  and  restricted  by  the  Constitution  of  the  United  States. 
And  the  powers  of  the  General  government  and  of  the  St  ajte^  jilt  ho  ugh 
both  exist  and  are  exercised  within  the  same, territorial  limits,  are 
yet  separate  and  distinct  sovereignties,  acting  separately  and  inde- 
pendently of  each  other,  within  their  respective  spheres.  And  the 
sphere  of  action  appropriated  to  the  United  States,  is  as  far  beyond 
the  reach  of  the  judicial  process  issued  by  a  State  judge  or  a  State 
court  as  if  the  line  of  division  was  traced  by  landmarks  and  monu- 
ments visible  to  the  eye.  And  the  State  of  Wisconsin  had  no  more 
'^power  to  authorize  these  proceedings  of  its  judges  and  courts,  than 
/  it  would  have  had  if  the  prisoner  had  been  confined  in  Michigan, 
I  or  in  any  other  State  of  the  Union,  for  an  offence  against  the  laws 
of  the  State  in  which  he  was  imprisoned." 

It  is  in  the  consideration  of  this  distinct  and  independent  charac- 
ter of  the  government  of  the  United  States,  from  that  of  the 
government  of  the  several  States,  that  the  solution  of  the  question 
presented  in  this  case,  and  in  similar  cases,  must  be  found.  There 
are  within  the  territorial  limits  of  each  State  two  governments, 
restricted  in  their  spheres  of  action,  but  independent  of  each  other, 
and  supreme  within  their  respective  spheres.  Each  has  its  separate 
departments ;  each  has  its  distinct  laws,  and  each  has  its  own 
tribunals  for  their  enforcement.  Neither  government  can  intrude 
/within  the  jurisdiction,  or  authorize  any  interference  therem  bylis 
,  judicial  officers  with  the  action  of  the  other.  The  two  governments 
in  each  State  stand  in  their  respective  spheres  of  action  in  the  same 
independent  relation  to  each  other,  except  in  one  particular,  that 
they  would  if  their  authority  embraced  distinct  territories.'  That 
particular  consists  in  the  supremacy  of  the  authority  of  the  United 
States  when  any  conflict  arises  between  the  two  governments.  The 
Constitution  and  the  laws  passed  in  pursuance  of  it,  are  declared  by 
the  Constitution  itself  to  be  the  supreme  law  of  the  land,  and  the 
judges  of  every  State  are  bound  thereby,  "  anything  in  the  constitu- 
tion or  laws  of  any  State  to  the  contrary  notwithstanding."  When- 
ever, therefore,  any  conflict  arises  between  the  enactments  of  the 
two  sovereignties,  or  in  the  enforcement  of  their  asserted  authorities, 
those  of  the  National  government  must  have  supremacy  until  the 


CHAP.  II.]  tarble's  case.  47 

validity  of  tlie  different  enactments  and  authorities  can  be  finally^ 
determined  by  the  tribunals  of  the  United  States.  This  temporary 
supremacy  until  judicial  decision  by  the  National  tribunals,  and  the 
ultimate  determination  of  the  conflict  by  such  decision,  are  essential 
to  the  preservation  of  order  and  peace,  and  the  avoidance  of  forcible 
collision  between  the  two  governments.  "The  Constitution,"  as 
said  by  Mr.  Chief  Justice  Taney,  "  was  not  framed  merely  to  guard 
the  States  against  danger  from  abroad,  but  chiefly  to  secure  union 
and  harmony  at  home;  and  to  accomplish  this  end  it  was  deemed 
necessary,  when  the  Constitution  was  framed,  that  many  of  the 
rights  of  sovereignty  which  the  States  then  possessed  should  be 
ceded  to  the  General  government;  and  that  in  the  si:)here  of  action 
assigned  to  it,  it  should  be  supreme  and  strong  enough  to  execute 
its  own  laws  by  its  own  tribunals  without  interruption  from  a 
State,  or  from  State  authorities."  And  the  judicial  power  con- 
ferred extends  to  all  cases  arising  under  the  Constitution,  and 
thus  embraces  every  legislative  act  of  Congress,  whether  passed  in 
pursuance  of  it,  or  in  disregard  of  its  provisions.  The  Constitution 
is  under  the  view  of  the  tribunals  of  the  United  States  when  any 
act  of  Congress  is  brought  before  them  for  consideration. 

Such  being  the  distinct  and  independent  character  of  tlie  two 
governments,  within  their  respective  spheres  of  action,  it  follows 
that  neither  can  intrude  with  its  judicial  process  into  the  domain  of 
the  other,  except  so  far  as  such  intrusion  may  be  necessary  on  tlie 
part  of  the  National  government  to  preserve  its  rightful  supremacy 
in  cases  of  conflict  of  authority.  In  their  laws,  and  mode  of  enforce- 
ment, neither  is  responsible  to  the  other.  How  their  respective  laws 
shall  be  enacted ;  how  they  shall  be  carried  into  execution  ;  and  in 
what  tribunals,  or  by  what  officers ;  and  how  much  discretion,  or 
whether  any  at  all  shall  be  vested  in  their  officers,  are  matters 
subject  to  their  own  control,  and  in  the  regulation  of  which  neitlier 
can  interfere  with  the  other. 

Kovv,  among  the  powers  assigned  to   the  National  government,  is  / 
the  power  to  "raise  and  support  armies,"  and  the  power  "to  provide^ 
for  the  government  and  regulation   of  the  land  and  naval"  forces!" 
The  execution  of  these  powers   falls  within   the  line   of  its  duties  ;\ 
and  its  control  over  the   subject  is   plenary  and  exclusive.     It  can 
determine,    without   question    from  any    State   authority,   how  the 
armies  shall    be  raised,  whether  by  voluntary  enlistment  or  forced 
draft,  the  age  at  which  the  soldier  shall  be  received,  and  the  period 
for  which  he  shall  be  taken,  the  compensation  he  shall  be  allowed, 
and  the  service  to  which  he  shall   be  assigned.     And  it  can  provide 
the  rules  for  the  government  and  regulation  of  the  forces  after  they 
are  raised,  define  what  shall  constitute  military  offences,  and  prescribe 
their  punishment.     No  interference  with  the  execution  of  tliis  power  1 
of   the   National    government   in   the    formation,   organization,   and  ; 
government  of  its  armies  by  any  State  officials  could  be  permitted 


48  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  II. 

without  greatly  impairing  the  efficiency,  if  it  did  not  utterly  destroy, 
this  branch  of  the  public  service.  Probably  in  every  county  and  city 
in  the  several  States  there  are  one  or  more  officers  authorized  by  law 
to  issue  writs  of  habeas  corjms  on  behalf  of  persons  alleged  to  be 
illegally  restrained  of  their  liberty ;  and  if  soldiers  could  be  taken 
from  the  army  of  the  United  States,  and  the  validity  of  their  enlist- 
'raent  inquired  into  by  any  one  of  these  officers,  such  proceeding  could 
be  taken  by  all  of  them,  and  no  movement  could  be  made  by  the 
National  troops  without  their  commanders  being  subjected  to  con- 
stant annoyance  and  embarrassment  from  this  source.  The  ex- 
perience of  the  late  rebellion  has  shown  us  that,  in  times  of  great 
popular  excitement,  there  may  be  found  in  every  State  large  numbers 
ready  and  anxious  to  embarrass  the  operations  of  the  government, 
and  easily  persuaded  to  believe  every  step  taken  for  the  enforcement 
of  its  authority  illegal  and  void.  Power  to  issue  writs  of  habeas 
corpus  for  the  discharge  of  soldiers  in  the  military  service,  in  the 
hands  of  parties  thus  disposed,  might  be  used,  and  often  would  be 
used,  to  the  great  detriment  of  the  public  service.  In  many  exigen- 
cies the  measures  of  the  National  government  might  in  this  way  be 
entirely  bereft  of  their  efficacy  and  value.  An  appeal  in  such  cases 
to  this  court,  to  correct  the  erroneous  action  of  these  officers,  would 
afford  no  adequate  remedy.  Proceedings  on  habeas  corpus  are 
summary,  and  the  delay  incident  to  bringing  the  decision  of  a  State 
officer,  through  the  highest  tribunal  of  the  State,  to  this  court  for 
review,  would  necessarily  occupy  years,  and  in  the  meantime,  where 
the  soldier  was  discharged,  the  mischief  would  be  accomplished.  It 
is  manifest  that  the  powers  of  the  National  government  could  not 
be  exercised  with  energy  and  efficiency  at  all  times,  if  its  acts  could 
be  interfered  with  and  controlled  for  any  period  by  officers  or  tri- 
bunals of  another  sovereignty. 

It  is  true  similar  embarrassment  might  sometimes  be  occasioned, 
though  in  a  less  degree,  by  the  exercise  of  the  authority  to  issue 
the  writ  possessed  by  judicial  officers  of  the  United  States,  but  the 
ability  to  provide  a  speedy  remedy  for  any  inconvenience  following 
from  this  source  would  always  exist  with  the  National  legislature. 

State  judges  and  State  courts,  authorized  by  laws  of  their  States 
to  issue  writs  of  habeas  corpus,  have  undoubtedly  a  right  to  issue 
the  writ  in  any  case  where  a  party  is  alleged  to  be  illegally  confined 
within  their  limits,  unless  it  appear  upon  his  application  that  he  is 
confined  under  the  authority,  or  claim  and  color  of  the  authority, 
of  the  United  States,  by  an  officer  of  that  government.  If  such  fact 
appear  upon  the  application  the  writ  should  be  refused.  If  it  do 
not  appear,  the  judge  or  court  issuing  the  writ  has  a  right  to  inquire 
into  the  cause  of  imprisonment,  and  ascertain  by  what  authority  the 
person  is  held  within  the  limits  of  the  State;  and  it  is  the  duty  of 
the  marshal,  or  other  officer  having  the  custody  of  the  prisoner,  to 
give,  by  a  proper  return,   information  in  this  respect.     His  return 


CHAP.  II.]  tarble's  case.  49 

should  be  sufficient,  in  its  detail  of  facts,  to  show  distinctly  that  the 
imprisonment  is  under  the  authority,  or  claim  and  color  of  the 
authority,  of  the  United  States,  and  to  exclude  the  suspicion  of 
imposition  or  oppression  on  his  part.  And  the  process  or  orders, 
under  which  the  prisoner  is  held,  should  be  produced  with  the  return 
and  submitted  to  inspection,  in  order  that  the  court  or  judge  issuing 
the  writ  may  see  that  the  prisoner  is  held  by  the  oihcer,  in  good 
faith,  under  the  authority,  or  claim  and  color  of  the  authority,  of  the 
United  States,  and  not  under  the  mere  pretence  of  having  such 
authority. 

This  right  to  inquire  by  process  of  habeas  corpus,  and  the  duty  of  the 
officer  to  make  a  return,  *'  grows  necessarily,"  says  Mr.  Chief  Justice 
Taney,  "  out  of  the  complex  character  of  our  government  and  the  exist- 
ence of  two  distinct  and  separate  sovereignties  within  the  same  terri- 
torial space,  each  of  them  restricted  in  its  power,  and  each  within  its 
sphere  of  action,  prescribed  by  the  Constitution  of  the  United  States, 
independent  of  the  other.  But,  after  the  return  is  made,  and  the 
State  judge  or  court  judicially  apprised  that  the  party  is  in  custody 
under-  the  authority  of  the  United  States,  they  can  proceed  no 
further.  They  then  know  that  the  prisoner  is  within  the  dominion 
and  jurisdiction  of  another  government,  and  that  neither  the  writ 
of  habeas  corpus  nor  any  other  process  issued  under  State  authority 
can  pass  over  the  line  of  division  between  the  two  sovereignties, 
lie  is  then  within  the  dominion  and  exclusive  jurisdiction  of  the 
United  States.  If  he  has  committed  an  offence  against  their  laws, 
their  tribunals  alone  can  punish  him.  If  he  is  wrongfully  imprisoned, 
their  judicial  tribunals  can  release  him  and  afford  him  redress." 

Some  attempt  has  been  made  in  adjudications,  to  which  our  atten- 
tion has  been  called,  to  limit  the  decision  of  this  court  in  Ablemau  r. 
Booth,  and  the  United  States  v.  Booth,  to  cases  where  a  prisoner 
is  held  in  custody  under  undisputed  lawful  authority  of  the  United 
States,  as  distinguished  from  his  imprisonment  under  claim  and 
color  of  such  authority.  But  it  is  evident  that  the  decision  does  not 
admit  of  any  such  limitation.  It  would  have  been  unnecessary  to 
enforce,  by  any  extended  reasoning,  such  as  the  Chief  Justice  uses, 
the  position  that  when  it  appeared  to  the  judge  or  officer  issuing  the 
writ,  that  the  prisoner  was  held  under  undisputed  lawful  authority, 
he  should  proceed  no  further.  No  Federal  judge  even  cmild,  in  such 
case,  release  the  party  from  imprisonment,  except  upon  bail  when 
that  was  allowable.  The  detention  being  by  admitted  lawful  author- 
ity, no  judge  could  set  the  prisoner  at  liberty,  except  in  that  way, 
at  any  stage  of  the  proceeding.  All  that  is  meant  by  the  language 
used  is,  that  the  State  judge  or  State  court  should  proceed  no 
further  when  it  appears,  from  the  application  of  the  party,  or  the 
return  made,  that  the  prisoner  is  held  by  an  officer  of  the  United 
States  under  what,  in  truth,  purports  to  be  the  authority  of  the 
United  States;  that  is,  an  authority,  the  validity  of  which   is   to 

4 


50  RELATION   OF  STATES  TO   FEDERAL   GOVERNMENT.       [CHAP.  IL 

be  determined  by  the  Constitution  and  laws  of  the  United  States. 
I  If  a  party  thus  hekl  be  illegally  imprisoned  it  is  for  the  courts  or 
I  judicial  officers  of  the  United  States,  and  those  courts  or  officers 
alone,  to  grant  him  release. 

This  limitation  upon  the  power  of  State  tribunals  and  State 
officers  furnishes  no  just  ground  to  apprehend  that  the  liberty  of  the 
citizen  will  thereby  be  endangered.  The  United  States  are  as  much 
interested  in  protecting  the  citizen  from  illegal  restraint  under  their 
authority,  as  the  several  States  are  to  protect  him  from  the  like  restraint 
under  their  authority,  and  are  no  more  likely  to  tolerate  any  oppres- 
sion. Their  courts  and  judicial  officers  are  clothed  with  the  power 
to  issue  the  writ  of  habeas  corpus  in  all  cases,  where  a  party  is  illegally 
restrained  of  his  liberty  by  an  officer  of  the  United  States,  whether 
such  illegality  consist  in  the  character  of  the  process,  the  authority 
of  the  officer,  or  the  invalidity  of  the  law  under  which  he  is  held. 
And  there  is  no  just  reason  to  believe  that  they  will  exhibit  any 
/hesitation  to  exert  their  power,  when  it  is  properly  invoked. 
^Certainly  there  can  be  no  ground  for  supposing  that  their  action  will 
be  less  prompt  and  efficient  in  such  cases  than  would  be  that  of 
State  tribunals  and  State  officers.  In  the  matter  of  Severy,  4 
Clifford.     In  the  matter  of  Keeler,  Hempstead,  306. 

It  follows,  from  the  views  we  have  expressed,  that  the  court 
commissioner  of  Dane  County  was  without  jurisdiction  to  issue  the 
writ  of  habeas  corpus  for  the  discharge  of  the  prisoner  in  this  case, 
it  appearing,  upon  the  application  presented  to  him  for  the  writ, 
that  the  prisoner  was  held  by  an  officer  of  the  United  States,  under 
claim  and  color  of  the  authority  of  the  United  States,  as  an  enlisted 
soldier  mustered  into  the  military  service  of  the  National  govern- 
ment ;  and  the  same  information  was  imparted  to  the  commissioner 
by  the  return  of  the  officer.  The  commissioner  was,  both  by  the 
application  for  the  writ  and  the  return  to  it,  apprised  that  the 
prisoner  was  within  the  dominion  and  jurisdiction  of  another  govern- 
ment, and  that  no  writ  of  habeas  corjms  issued  by  him  could  pass 
over  the  line  which  divided  the  two  sovereignties. 

The  conclusion  we  have  reached  renders  it  unnecessary  to  consider 
how  far  the  declaration  of  the  prisoner  as  to  his  age,  in  the  oath  of 
enlistment,  is  to  be  deemed  conclusive  evidence  on  that  point  on  the 
return  to  the  writ. 

Judgment  reversed} 

'  Mr.  Chief  Justice  Cha.se  delivered  a  dissenting  opinion. 


CHAP.  II.]  TENNESSEE   V.   DAVIS.  61 


TENNESSEE   v.   DAVIS. 

100  United  States,  2J7.     1879. 

[Davis  was  indicted  in  the  State  Court  of  Tennessee  for  murder. 
He  petitioned  for  removal  of  the  prosecution  to  the  Circuit  Court  of 
the  United  States.  The  judges  of  that  court  were  divided  in  opinion 
upon  the  following  questions,  which  are  certified  to  this  court]  :  — 

First,  Whether  an  indictment  of  a  revenue  officer  (of  the  United 
States)  for  murder,  found  in  a  State  court,  under  the  facts  alleged  in 
the  petition  for  removal  in  this  case,  is  removable  to  the  Circuit 
Court  of  the  United  States,  under  sect.  643  of  the  Revised  Statutes. 

Second,  Whether,  if  removable  from  the  State  court,  there  is  any 
mode  and  manner  of  procedure  in  the  trial  prescribed  by  the  act  of 
Congress. 

Third,   Whether,  if  not,  a  trial  of  the  guilt  or  innocence  of  the 
defendant  can  be  had  in  the   United  States  Circuit  Court. 
Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 
The  first  of  the  questions  certified  is  one  of  great  importance, 
bringing  as   it  does  into  consideration   the  relation  of   the  general 
government   to   the    government   of   the    States,  and   bringing  also 
into  view  not  merely  the  construction  of  an  act  of  Congress,  but  its 
constitutionality.     That  in    this    case    the    defendant's    petition  for 
removal  of  the  cause  was  in  the  form  prescribed  by  the  act  of  Con- 
gress admits  of  no  doubt.     It  represented  that  he  had  been  indicted 
for    murder  in   the  Circuit  Court  of  Grundy  County,  and  that  the 
indictment  and   criminal  prosecution  were  still  pending.     It  repre- 
sented further,  that  no  murder  was  committed,  but  that,  on  the  other 
hand,  the  killing  was  committed  in  the  petitioner's  own  necessary 
self-defence,  to  save  his  own  life  ;  that  at  the  time  when  the  alleged 
act  for  which  he  was  indicted  was  committed  he  was,  and  still  is,  an 
officer  of  the  United  States,  to  wit,  a  deputy  collector  of  internal 
revenue,  and  that  the  act  for  which  he  was  indicted  was  performed 
in  his  own  necessary  self-defence  while  engaged  in  the  discharge  of 
his  duties  as  deputy  collector ;  that  he  was  acting  by  and  under  the 
authority  of  the  internal  revenue  laws  of   the  United  States;  that 
what  he  did  was  done  under  and  by  right  of  his  office,  to  wit,  as 
deputy  collector  of  internal  revenue  ;  that  it  was  his  duty  to  seize 
illicit  distilleries  and  the  apparatus  tliat  is  used  for  the  illicit  and 
unlawful   distillation   of   spirits ;   and   that   while    so  attemjjtiiig  to 
enforce  the  revenue  laws  of  the  United  States,  as  deputy  collector, 
as  aforesaid,  he  was  assaulted  and  fired  upon  by  a  number  of  armed 
men,  and  that  in  defence  of  his  life  he  returned  the  fire.     The  peti- 
tion was  verified  by  oath,  and  the  certificate  required  by  the  act  of 
Congress  to  be  given  by  the  petitioner's  legal  counsel  was  appended 


52 


RELATION  OF  STATES  TO  FEDERAL  GOVERNMENT.   [CHAP.  II. 


<r 


thereto.  There  is,  therefore,  no  room  for  reasonable  doubt  that  a 
case  was  made  for  the  removal  of  the  indictment  into  the  Circuit 
Court  of  the  United  States,  if  sect.  643  of  the  Revised  Statutes 
embraces  criminal  prosecutions  in  a  State  court,  and  makes  them 
removable,  and  if  that  act  of  Congress  was  not  unauthorized  by  the 
Constitution.  The  language  of  the  statute  (so  far  as  it  is  necessary 
at  present  to  refer  to  it)  is  as  follows  :  "  When  any  civil  suit  or 
criminal  prosecution  is  commenced  in  any  court  of  a  State  against 
any  officer  appointed  under,  or  acting  by  authority  of,  any  revenue 
law  of  the  United  States,  now  or  hereafter  enacted,  or  against  any 
person  acting  by  or  under  authority  of  any  such  officer,  on  account 
of  any  act  done  under  color  of  his  office  or  of  any  such  law,  or  on 
account  of  any  right,  title,  or  authority  claimed  by  such  officer  or 
other  person  under  any  such  law,"  the  case  may  be  removed  into  the 
v^Federal  court.  Now,  certainly  the  petition  for  the  removal  repre- 
sented that  the  act  for  which  the  defendant  was  indicted  was  done 
not  merely  under  color  of  his  office  as  a  revenue  collector,  or  lender 
color  of  the  revenue  laws,  not  merely  while  he  was  engaged  in  per- 
forming his  duties  as  a  revenue  officer,  but  that  it  was  done  under 
and  by  right  of  his  office,  and  while  he  was  resisted  by  an  armed 
force  in  his  attempts  to  discharge  his  official  duty.  This  is  more 
than  a  claim  of  right  and  authority  under  the  law  of  the  United 
States  for  the  act  for  which  he  has  been  indicted.  It  is  a  positive 
assertion  of  the  existence  of  such  authority.  But  the  act  of  Con- 
gress authorizes  the  removal  of  any  cause,  when  the  acts  of  the 
defendant  complained  of  were  done,  or  claimed  to  have  been  done, 
in  the  discharge  of  his  dut}'  as  a  Federal  officer.  It  makes  such  a 
claim  a  basis  for  the  assumption  of  Federal  jurisdiction  of  the  case, 
and  for  retaining  it,  at  least  until  the  claim  proves  unfounded. 

That  the  act  of  Congress  does  provide  for  the  removal  of  criminal 
prosecutions  for  offences  against  the  State  laws,  when  there  arises  in 
them  the  claim  of  the  Federal  right  or  authority,  is  too  plain  to 
admit  cf  denial.  Such  is  its  positive  language,  and  it  is  not  to  be 
argued  away  by  presenting  the  supposed  incongruity  of  administer- 
ing State  criminal  laws  by  other  courts  tlian  those  established  by 
the  State.  /  It  has  been  strenuously  urged  that  murder  within  a  State 
is  not  made  a  crime  by  any  act  of  Congress,  and  that  it  is  an  offence 
against  the  peace  and  dignity  of  the  State  alone.  Hence  it  is  in- 
ferred that  its  trial  and  punishment  can  be  conducted  only  in  State 
tribunals,  and  it  is  argued  that  the  act  of  Congress  cannot  mean 
Avhat  it  says,  but  that  it  must  intend  only  such  prosecutions  in  State 
courts  as  are  for  offences  against  the  United  States,  —  offences 
against  the  revenue  laws.  But  there  can  be  no  criminal  prosecution 
initiated  in  any  State  court  for  that  which  is  merely  an  offence 
against  the  general  government.  If,  therefore,  the  statute  is  to  be 
allowed  any  meaning,  when  it  speaks  of  criminal  prosecutions  in 
State   courts,  it   must  intend  those  that  are  instituted  for   alleged 


CHAP.  II.]  TENNESSEE   V.   DAVIS.  53 

violations   of  State  laws,  in  which  defences  are  set  up  or  claimed  / 
under  United  States  laws  or  authority.  ' 

We  come,  then,  to  the  inquiry,  most  discussed  during  the  argu- 
ment, whether  sect.  643  is  a  constitutional  exercise  of  the  power 
vested  in  Congress.  Has  the  Constitution  conferred  upon  Congress 
the  power  to  authorize  the  removal,  from  a  State  court  to  a  Federal 
court,  of  an  indictment  against  a  revenue  officer  for  an  alleged  crime 
against  the  State,  and  to  order  its  removal  before  trial,  when  it 
appears  that  a  Federal  question  or  a  claim  to  a  Federal  right  is 
raised  in  the  case,  and  must  be  decided  therein  ?  A  more  important 
question  can  hardly  be  imagined.  Upon  its  answer  may  depend  the 
possibility  of  the  general  government's  preserving  its  own  existence. 
As  was  said  in  Martin  v.  Hunter,  1  Wheat.  363,  "  the  general  A 
government  must  cease  to  exist  whenever  it  loses  the  power  of  pro- 
tecting itself  in  the  exercise  of  its  constitutional  powers."  It  can 
act  only  through  its  officers  and  agents,  and  they  must  act  within  / 
the  States.  If,  when  thus  acting,  and  within  the  scope  of  their 
authority,  those  officers  can  be  arrested  and  brought  to  trial  in  a 
State  court,  for  an  alleged  offence  against  the  law  of  the  State,  yetl 
warranted  by  the  Federal  authority  they  possess,  and  if  the  generali 
government  is  powerless  to  interfere  at  once  for  their  protection,  — i 
if  their  protection  must  be  left  to  the  action  of  the  State  court,  —  the 
operations  of  the  general  government  may  at  any  time  be  arrested  at 
the  will  of  one  of  its  members.  The  legislation  of  a  State  may  be 
unfriendly.  It  may  affix  penalties  to  acts  done  under  the  immediate 
direction  of  the  national  government,  and  in  obedience  to  its  laws. 
It  may  deny  the  authority  conferred  by  those  laws.  The  State  court 
may  administer  not  only  the  laws  of  the  State,  but  equally  Federal 
law,  in  such  a  manner  as  to  paralyze  the  operations  of  the  govern- 
ment. And  even  if,  after  trial  and  final  judgment  in  the  State 
court,  the  case  can  be  brought  into  the  United  States  court  for 
review,  the  officer  is  withdrawn  from  the  discharge  of  his  duty  during 
the  pendency  of  the  prosecution,  and  the  exercise  of  acknowledged 
Federal  power  arrested. 

We  do  not  think  such  an  element  of  weakness  is  to  be  found  in 
the  Constitution.  The  United  States  is  a  government  with  autlior- 
ity  extending  over  the  whole  territory  of  the  Union,  acting  upon  tlie 
States  and  upon  the  people  of  the  States.  While  it  is  limited  in 
the  number  of  its  powers,  so  far  as  its  sovereignty  extends  it  is 
supreme.  No  State  government  can  exclude  it  from  the  exercise  of 
any  authority  conferred  upon  it  by  the  Constitution,  obstruct  its 
authorized  officers  against  its  will,  or  withhold  from  it,  for  a  moment, 
the  cognizance  of  any  subject  which  that  instrument  has  committed 
to  it. 

By  the  last  clause  of  the  eighth  section  of  the  first  article  of  the 
Constitution,  Congress  is  invested  with  power  to  make  all  laws 
necessary  and  proper  for  carrying  into  execution   not  only  all  the 


54  RELATION    OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  II. 

powers  previously  specified,  but  also  all  other  powers  vested  by  the 
Constitution  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof.  Among  these  is  the  judicial  power 
of  tli.e  government.  That  is  declared  by  the  second  section  of  the 
third  article  to  '•  extend  to  all  cases  in  law  and  equity  arising  under 
the  Constitution,  the  laws  of  the  United  States,  and  treaties  made 
or  which  shall  be  made  under  their  authority,"  &c.  This  provision 
embraces  alike  civil  and  criminal  cases  arising  under  the  Constitution 
and  laws.  Cohens  ?',  Virginia,  G  Wheat.  264,  399.  Both  are  equally 
within  the  domain  of  the  judicial  powers  of  the  United  States,  and 
there  is  nothing  in  the  grant  to  justify  an  assertion  that  whatever 
power  may  be  exerted  over  a  civil  case  may  not  be  exerted  as  fully 
over  a  criminal  one.  And  a  case  arising  under  the  Constitution  and 
laws  of  the  United  States  may  as  well  arise  in  a  criminal  prosecution 
as  in  a  civil  suit.  What  constitutes  a  case  thus  arising  was  early 
defined  in  the  case  cited  from  6  Wheaton.  It  is  not  merely  one 
where  a  party  comes  into  court  to  demand  something  conferred  upon 
him  by  the  Constitution  or  by  a  law  or  treaty.  A  case  consists  of 
the  right  of  one  party  as  well  as  the  other,  and  may  truly  be  said  to 
arise  under  the  Constitution  or  a  law  or  a  treaty  of  the  United  States 
whenever  its  correct  decision  depends  upon  the  construction  of  either. 
iCases  arising  under  the  laws  of  the  United  States  are  such  as  grow 
lout  of  the  legislation  of  Congress,  whether  they  constitute  the  right 
lor  privilege,  or  claim  or  protection,  or  defence  of  the  party,  in  whole 
\oT  in  part,  by  whom  they  are  asserted.  Story  on  the  Constitution, 
sect.  1Q47 ;  6  Wheat.  379.  It  was  said  in  Osborne  v.  The  Bank  of  the 
United  States,  9  Wheat.  738,  823,  "  When  a  question  to  which  the 
judicial  power  of  the  Union  is  extended  by  the  Constitution  forms 
an  ingredient  of  the  original  cause,  it  is  in  the  power  of  Congress  to 
give  the  circuit  courts  jurisdiction  of  that  cause,  although  other 
questions  of  fact  or  of  law  may  be  involved  in  it."  And  a  case 
arises  under  the  laws  of  the  United  States,  when  it  arises  out  of  the 
implication  of  the  law.  Mr.  Chief  Justice  Marshall  said,  in  the  case 
last  cited :  "  It  is  not  unusual  for  a  legislative  act  to  involve  conse- 
quences which  are  not  expressed.  An  officer,  for  example,  is  ordered 
to  arrest  an  individual.  It  is  not  necessary,  nor  is  it  usual,  to  say 
that  he  shall  not  be  punished  for  obeying  this  order.  His  security  is 
implied  in  the  order  itself.  It  is  no  unusual  thing  for  an  act  of 
Congress  to  imply,  without  expressing,  this  very  exemption  from 
/State  control."  .  .  .  "The  collectors  of  the  revenue,  the  carriers  of 
the  mail,  the  mint  establishment,  and  all  those  institutions  which 
are  public  in  their  nature,  are  examples  in  point.  It  has  never  been 
y  doubted  that  all  who  are  employed  in  them  are  protected  while 
/  ^  in  the  line  of  their  duty ;  and  yet  this  protection  is  not  expressed 
in  any  act  of  Congress.  It  is  incidental  to,  and  is  implied  in,  the 
several  acts  by  which  those  institutions  are  created ;  and  is  secured 
to  the  individuals  employed  in  them  by  the  judicial  power  alone ; 


CHAP.  II.]  TENNESSEE  V.  DAVIS.  55 

that  is,  the  judicial  power  is  the  instrument  employed  by  the  goveru- 
meut  in  acTrmnisteriug  this  security." 

[The  court  considers  various  provisions  as  to  removal  of  causes 
and  finds  that  the  power  to  provide  for  such  removal  has  been  under- 
stood to  extend  to  criminal  prosecutions,  as  well  as  to  civil  cases.] 

It  ought,  therefore,  to  be  considered  as  settled  that  the  constitu- 
tiopal  powers  of  Congress  to  authorize  the  removal  of^  criuiiiud  cases-L 
for  alleged  offences  against  State  laws  from  State  courts  to~the~cTr^i 
cuit  courts  of  the  United  States,  when  there  aris^s^a  Federal  question  ' 
in  them,  is  as  ample  as  its  power  "tolMhorize  the  removal  of  a  civiF'^ 

casBT Many  of  the  cases  referred  to,  and  others,  set  out  with  great 

ToFce  the  indispensability  of  such   a   power  to   the  enforcement  of 
Federal  law. 

It  follows  that  the  first  question  certified  to  us  from  the  Circuit 
Court  of  Tennessee  must  be  answered  in  the  affirmative. 

The  second  question  is,  "  Whether,  if  the  case  be  removable  from 
the  State  court,  there  is  any  mode  and  manner  of  procedure  in  the 
trial  prescribed  by  the  act  of  Congress." 

Whether  there  is  or  not  is  totally  immaterial  to  the  inquiry 
whether  the  case  is  removable  ;  and  this  question  can  hardly  have 
arisen  on  the  motion  to  remand  the  ease.  The  imaginary  dithculties 
and  iircongruities  supposed  to  be  in  the  way  of  trying  in  the  Circuit 
Court  an  indictment  for  an  alleged  offence  against  the  peace  and 
dignity  of  a  State,  if  they  were  real,  would  be  for  the  consideration 
of  Congress.  But  they  are  unreal.  While  it  is  true  there  is  neither 
in  sect.  643,  nor  in  the  act  of  which  it  is  a  re-enactment,  any  mode 
of  procedure  in  the  trial  of  a  removed  case  prescribed,  except  that  it 
is  ordered  the  cause  when  removed  shall  proceed  as  a  cause  originally 
commenced  in  that  court,  yet  the  mode  of  trial  is  sufficiently  obvious. 
The  circuit  courts  of  the  United  States  have  all  the  appliances  which  j 
are  needed  for  the  trial  of  any  criminal  case.  They  adopt  and  apply  I 
'the_laws  of  the  State  in  civil  cases,  and  there  is  no  more  difficulty  u\j 
administering  the  State's  criminal  law.  They  are  not  foreign  courts. 
The  Constitution  has  made  them  courts  within  the  States  to  admin- 
ister the  laws  of  the  States  in  certain  cases ;  and,  so  long  as  they 
keep  within  the  jurisdiction  assigned  to  them,  their  general  powers 
are  adequate  to  the  trial  of  any  case.  The  supposed  anomaly  of 
prosecuting  offenders  against  the  peace  and  dignity  of  a  State,  in 
tribunals  of  the  general  government,  grows  entirely  out  of  the  divi- 
sion of  powers  between  that  government  and  the  government  of  a 
State,  that  is,  a  division  of  sovereignty  over  certain  matters.  AVhen 
this  is  understood  (and  it  is  time  it  should  be),  it  will  not  appear 
strange  that,  even  in  cases  of  criminal  prosecutions  for  alleged 
offences  against  a  State,  in  which  arises  a  defence  under  United 
States  law,  the  general  government  should  take  cognizance  of  the- 
case  and  try  it  in  its  own  courts,  according  to  its  own  forms  oy 
proceeding. 


56  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  II. 

The  third  question  certified  has  been  sufficiently  answered  in  what 
we  have  said  respecting  the  second.  It  must  be  answered  in  the 
attirmative. 

[The  first  question  is  therefore  answered  in  the  aflSrmative,  and 
the  second  is  answered  as  indicated  in  the  opinion.^] 


Ex  PARTE  SIEBOLD. 

100  United  States,  371.     1879. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 
The  petitioners  in  this  case  were  judges  of  election  at  different 
voting  precincts  in  the  city  of  Baltimore,  at  the  election  held 
in  that  city  and  in  the  State  of  Maryland,  on  the  fifth  day  of 
November,  1878,  at  which  representatives  to  the  Forty-sixth  Con- 
gress were  voted  for. 

At  the  November  Term  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland,  an  indictment  against  each  of  the 
petitioners  was  found  in  said  court,  for  offences  alleged  to  have  been 
committed  by  them  respectively  at  their  respective  precincts  whilst 
being  such  judges  of  election;  upon  which  indictments  they  were 
severally  tried,  convicted,  and  sentenced  by  said  court  to  tine  and 
imprisonment.  They  now  apply  to  this  court  for  a  writ  of  habeas 
coi'pus  to  be  relieved  from  imprisonment. 

These  indictments  were  framed  partly  under  sect.  5515  and  partly 
under  sect.  5522  of  the  Revised  Statutes  of  the  United  States;  and 
the  principal  questions  raised  by  the  application  are,  whether  those 
sections,  and  certain  sections  of  the  title  of  the  Revised  Statutes 
relating  to  the  elective  franchise,  which  they  are  intended  to  enforce, 
are  within  the  constitutional  power  of  Congress  to  enact.  If  they  are 
not,  then  it  is  contended  that  the  Circuit  Court  has  no  jurisdiction 
of  the  cases,  and  that  the  convictions  and  sentences  of  imprisonment 
of  the  several  petitioners  were  illegal  and  void. 

[The  court  holds  that  the  case  is  within  its  appellate  jurisdiction. 
On  the  merits  of  the  case,  the  sections  of  the  Revised  Statutes 
(§§  2011-2022  and  5515-5522)  relating  to  elections  are  stated  and  in 
part  set  out,  and  the  first  Clause  of  Sec.  4,  Art.  1  of  the  Constitu- 
tion relating  to  election  of  representatives  is  quoted,  and  emphasis 
is  laid  on  the  authority  given  to  Congress  "  to  alter  "  State  regula- 
tions on  the  subject.] 

^  Mr.  Justice  Clifford  delivered  a  dissenting  opinion  in  which  Mr.  Justice 
Field  concurred. 


CHAP.  II.]  EX   PARTE   SIEBOLD.  57 

Congress  has  partially  regulated  the  subject  heretofore.  In  1842, 
it  passed  a  law  for  the  election  of  representatives  by  separate  dis- 
tricts; and,  subsequently,  other  laws  fixing  the  time  of  election, 
and  directing  that  the  elections  shall  be  by  ballot.  iN'o  one  will 
pretend,  at  least  at  the  present  day,  that  these  laws  were  unconsti- 
tutional because  they  only  partially  covered  the  subject. 

The  peculiarity  of  the  case  consists  in  the  concurrent  authority  / 
of  the  two  sovereignties,  State  and  National,  over  the  same  subject-' 
matter.     This,  however,  is  not   entirely  without   a  parallel.     The 
regulation  of  foreign  and  interstate  commerce  is  conferred  by  the 
Constitution  upon  Congress.     It  is  not  expressly  taken  away  from 
the  States.     But  where  the  subject-matter  is  one  of  a  national  char- 
acter, or  one  that  requires  a  uniform  rule,  it  has  been  held  that  the 
power  of  Congress  is  exclusive.     On  the  contrary,  where  neither  of  , 
these  circumstances  exist,  it  has  been  held  that  State  regulations') 
are  not  unconstitutional.    In  the  absence  of  congressional  regulation, 
which  would  be  of  paramount   authority  when   adopted,   they   are 
valid  and  binding. 

So  in  the  case  of  laws  for  regulating  the  elections  of  representa- 
tives to  Congress.  The  State  may  make  regulations  on  the  subject; 
Congress  may  make  regulations  on  the  same  subject,  or  may  alter  or 
add  to  those  already  made.  The  paramount  character  of  those  made. . 
by  Congress  has  the  effect  to  supersede  those  made  by  the  State, 
so  far  as  the  two  are  inconsistent,  and  no  farther.  There  is  no  such' 
conflict  between  them  as  to  prevent  their  forming  a  harmonious 
system  perfectly  capable  of  being  administered  and  carried  out  as 
such. 

As  to  the  supposed  conflict  that  may  arise  between  the  officers 
appointed  by  the  State  and  National  governments  for  superintending 
the  election,  no  more  insuperable  difficulty  need  arise  than  in  the 
application  of  the  regulations  adopted  by  each  respectively.  The 
regulations  of  Congress  being  constitutionally  paramount,  the  duties 
imposed  thereby  upon  the  officers  of  the  United  States,  so  far  as 
they  have  respect  to  the  same  matters,  must  necessarily  be  para-  \ 
mount  to  those  to  be  performed  by  the  officers  of  the  State.  If 
both  cannot  be  performed,  the  latter  are  pro  tanto  superseded  and 
cease  to  be  duties.  If  the  power  of  Congress  over  the  subject  is 
supervisory  and  paramount,  as  we  have  seen  it  to  be,  and  if  officers 
or  agents  are  created  for  carrying  out  its  regulations,  it  follows  as  a 
necessary  consequence  that  such  officers  and  agents  must  have  the 
requisite  authority  to  act  without  obstruction  or  interference  from 
the  officers  of  the  State.  No  greater  subordination,  in  kind  or 
degree,  exists  in  this  case  than  in  any  other.  It  exists  to  the  same 
extent  between  the  different  officers  appointed  by  the  State,  when 
the  State  alone  regulates  the  election.  One  officer  cannot  interfere 
with  the  duties  of  another,  or  obstruct  or  hinder  him  in  the  perform- 


58  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  II. 

ance  of  them.  Where  there  is  a  disposition  to  act  harmoniously, 
there  is  no  danger  of  disturbance  between  those  who  have  different 
duties  to  perform.  When  the  rightful  authority  of  the  general  gov- 
ernment is  once  conceded  and  acquiesced  in,  the  apprehended  diffi- 
culties will  disappear.  Let  a  spirit  of  national  as  well  as  local 
patriotism  once  prevail,  let  unfounded  jealousies  cease,  and  we  shall 
hear  no  more  about  the  impossibility  of  harmonious  action  between 
the  national  and  State  governments  in  a  matter  in  which  they  have 
a  mutual  interest. 

As  to  the  supposed  incompatibility  of  independent  sanctions  and 
punishments  imposed  by  the  two  governments,  for  the  enforcement 
of  the  duties  required  of  the  officers  of  election,  and  for  their  pro- 
tection in  the  performance  of  those  duties,  the  same  considerations 
apply.  While  the  State  will  retain  the  power  of  enforcing  such  of 
its  own  regulations  as  are  not  superseded  by  those  adopted  by  Con- 
gress, it  cannot  be  disputed  that  if  Congress  has  power  to  make 
regulations  it  must  have  the  power  to  enforce  them,  not  only  by 
/'punishing  the  delinquency  of  officers  appointed  by  the  United  States, 
laut  by  restraining  and  punishing  those  who  attempt  to  interfere  with 
them  in  the  performance  of  their  duties;  and  if,  as  we  have  shown, 
Congress  may  revise  existing  regulations,  and  add  to  or  alter  the 
same  as  far  as  it  deems  expedient,  there  can  be  as  little  question  that 
it  may  impose  additional  penalties  for  the  prevention  of  frauds  com- 
mitted  by  the  State  officers  in  the  elections,  or  for  their  violation  of 
any  duty  relating  thereto,  whether  arising  from  the  common  law  or 
from  any  other  law,  State  or  National.  Why  not?  Penalties  for 
fraud  and  delinquency  are  part  of  the  regulations  belonging  to  the 
subject.  If  Congress,  by  its  power  to  make  or  alter  the  regulations, 
has  a  general  supervisory  power  over  the  whole  subject,  what  is  there 
to  preclude  it  from  imposing  additional  sanctions  and  penalties  to 
prevent  such  fraud  and  delinquency? 

It  is  objected  that  Congress  has  no  power  to  enforce  State  laws  or 
to  punish  State  officers,  and  especially  has  no  power  to  punish  them 
for  violating  the  laws  of  their  own  State.  As  a  general  proposition, 
this  is  undoubtedly  true;  but  when,  in  the  performance  of  their 
functions,  State  officers  are  called  upon  to  fulfil  duties  whicli  they 
owe  to  the  United  States  as  well  as  to  the  State,  has  the  former  no 
means  of  compelling  such  fulfilment?  Yet  that  is  the  case  here.^  It 
isthe  duty  of  the  States  to  elect  representatives  to  Congress.  TEe 
due  and  fair  election  of  these  representatives  is  of  vital  importance 
to  the  United  States.  The  government  of  the  United  States  is  no 
less  concerned  in  the  transaction  than  the  State  government  is.  It 
certainly  is  not  bound  to  stand  by  as  a  passive  spectator,  when  duties 
are  violated  and  outrageous  frauds  are  committed.  It  is  directly  in- 
terested in  the  faithful  performance,  by  the  officers  of  election,  of 
their  respective  duties.  Those  duties  are  owed  as  well  to  the  United 
States  as  to  the  State.     This  necessarily  follows  from  the  mixed 


CHAP,  il]  ex  parte  siebold.  59 

character  of  the  transaction,  —  State  and  National.     A  violation  of 
duty  is  an  offence  against  the  United  States,  for  which  the  offender 
is  justly   amenable  to  that   government.     No  official   position   ca.ny 
shelter  him  from  this  responsibility.     In  view  of  the  fact  that  Con- 
gress has  plenary  and  paramount  jurisdiction  over  the  Avhole  subject, 
it  seems  almost  absurd  to  say  that  an  officer  who  receives  or  has  cus- 
tody of  the  ballots  given  for  a  representative  owes  no  duty  to  the 
national  government  which  Congress  can  enforce;  or  that  an  otticer 
who  stuffs  the  ballot-box  cannot  be  made  amenable  to  the  United 
States.     If  Congress  has  not,   prior  to  the  passage  of  the  present  | 
laws,  imposed  any  penalties  to  prevent  and  punish  frauds  and  viola-  | 
tions  of  duty  committed  by  officers  of  election,  it  has  been  because  ' 
the  exigency  has  not  been  deemed  sufficient  to  require  it,  and  not, 
because  Congress  had  not  the  requisite  power. 

The  objection  that  the  laws  and  regulations,  the  violation  of  which  , 
is  made  punishable  by  the  acts  of  Congress,  are  State  laws  and  have  ,' 
not  been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power  of 
Congress  to  impose  punishment.     It  is  true  that  Congress  has  not 
deemed  it  necessary  to  interfere  with   the  duties  of   the   ordinary 
officers  of  election,  but  has  been  content  to  leave  them  as  prescribed 
by  State  laws.     It  has  only  created  additional  sanctions  for  their 
performance,  and   provided   means   of   supervision    in   order   more 
effectually  to  secure  such  performance.     The  imposition  of  punish- 
ment implies  a  prohibition  of  the  act    punished.     The  State  laws 
which  Congress   sees  no  occasion  to  alter,  but  which    it  allows  to 
^tandy  are  in  effect  adopted  by  Congress.     It  simply  demands  their 
fulfilment.     Content  to  leave  the  laws  as  they  are,  it  is  not  content 
with  jthe  means  provided  for  their  enforcement.     It  provides  addi-^U 
H'onal  means  for  that  purpose;  and  we  think  it  is  entirely  within  F 
its  constitutional  power  to  do  so.     It  is  simply  the  exercise  of  the 
power  to  make  additional  regulations. 

That  the  duties  devolved  on  the  officers  of  election  are  duties\ 
which  they  owe  to  the  United  States  as  well  as  to  the  State,  is) 
further  evinced  by  the  fact  that  they  have  always  been  so  regarded 
by  the  House  of  Kepresentatives  itself.  In  most  cases  of  contested 
elections,  the  conduct  of  these  officers  is  examined  and  scrutinized 
by  that  body  as  a  matter  of  right;  and  their  failure  to  perform  their 
duties  is  often  made  the  ground  of  decision.  Their  conduct  is  justly 
regarded  as  subject  to  the  fullest  exposure;  and  the  right  to  examine 
them  personally,  and  to  inspect  all  their  proceedings  and  papers, 
has  always  been  maintained.  This  could  not  be  done  if  the  officers 
were  amenable  only  to  the  supervision  of  the  State  government 
which  appointed  them. 

Another  objection  made  is,  that,  if  Congress  can  impose  penalties 
for  violation  of  State  laws,  the  officer  will  be  made  liable  to  double 
punishment  for  delinquency,  — at  the  suit  of  the  State,  and  at  the  ^ 
suit  of  the  United  States.     But  the  answer  to  this  is,  that  each 


60  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.      [CHAP.  II. 

government  punishes  for  violation  of  duty  to  itself  only.  Wliere_a 
person  owes  a  duty  to  two  sovereigns,  he  is  amenable  to  both  for  its 
performance;  and  either  may  call  him  to  account.  Whether  punish- 
ment inflicted  by  one  can  be  pleaded  in  bar  to  a  charge  by  the  other 
for  the  same  identical  act,  need  not  now  be  decided;  although  con- 
siderable discussion  bearing  upon  the  subject  has  taken  place  in  this 
court  tending  to  the  conclusion  that  such  a  plea  cannot  be  sustained. 

If  the  officers  of  election,  in  elections  for  representatives,  owe  a 
duty  to  the  United  States,  and  are  amenable  to  that  government  as 
well  as  to  the  State,  — as  we  think  they  are,  — then,  according  to  the 
cases  just  cited,  there  is  no  reason  why  each  should  not  establish 
sanctions  for  the  performance  of  the  duty  owed  to  itself,  though 
referring  to  the  same  act. 

To  maintain  the  contrary  proposition,  the  case  of  Commonwealth 
of  Kentucky  v.  Dennison,  24  How.  6G,  is  confidently  relied  on  by 
the  petitioners'  counsel.  But  there.  Congress  had  imposed  a  duty 
upon  the  governor  of  the  State  which  it  had  no  authority  to  impose. 
The  enforcement  of  the  clause  in  the  Constitution  requiring  the 
delivery  of  fugitives  from  service  was  held  to  belong  to  the  govern- 
ment of  the  United  States,  to  be  effected  by  its  own  agents;  and 
Conf^ress  had  no  authority  to  require  the  governor  of  a  State  to 
execute  this  duty. 

We  have  thus  gone  over  the  principal  reasons  of  a  special  charac- 
ter relied  on  by  the  petitioners  for  maintaining  the  general  proposi- 
tion  for  which   they  contend;  namely,  that   in   the   regulation   of 
elections   for  representatives   the  National  and  State  governments 
cannot  co-operate,  but  must  act  exclusively  of  each  other;  so  that, 
if  Congress  assumes  to  regulate  the  subject  at  all,  it  must  assume 
exclusive  control  of  the  whole  subject.     The  more  general  reason 
assigned,  to  wit,  that  the  nature  of  sovereignty  is  such  as  to  preclude 
the  joint  co-operation  of  two  sovereigns,  even  in  a  matter  in  which 
they  are  mutually  concerned,  is  not,  in  our  judgment,  of  sufficient 
force  to  prevent  concurrent  and  harmonious  action  on  the  part  of  the 
national  and  State  governments  in  the  election  of  representatives. 
It  is  at  most  an  argument  ab  inconveniente.     There  is  nothing  in  the 
Constitution  to  forbid  such  co-operation  in  this  case.     On  the  con- 
trary, as  already  said,  we  think  it  clear  that  the  clause  of  the  Con- 
stitution relating  to  the  regulation  of  such  elections  contemplates 
such  co-operation  whenever  Congress  deems  it  expedient  to  inter- 
fere merely  to  alter  or  add  to  existing  regulations  of  the  State.     If 
the  two  governments  had  an  entire  equality  of  jurisdiction,  there 
might   be  an  intrinsic  difficulty  in  such   co-operation.      Then   the 
adoption  by  the  State  government  of  a  system  of  regulations  might 
exclude  the  action  of  Congress.     By  first  taking  jurisdiction  of  the 
subject,  the  State  would  acquire  exclusive  jurisdiction  in  virtue  of  a 

well-known  principle  applicable  to  courts  having  co-ordinate  juris- 


CHAP.  II.]  EX   PARTE   SIEBOLD.  61 

diction  over  the  same  matter.  But  no  such  equality  exists  in  the 
jjresent  case.  The  power  of  Congre^,  "~as ' we  liaVe  seen,  is  para-~ 
jnount,  and  may  be  exercised  at  any  time,  and  to  any  extent  which 
it  deems  expedient;  and  so  far  as  it  is  exercised,  and  no  farther, 
tjie  ji'egulations  effected  supersede  those  "of  the  State  whicli  are 
inconsistent  therewith. 

As  a  general  rule,  it  is  no  doubt  expedient  and  wise  that  the 
operations  of  the  State  and  National  governments  should,  as  far  as 
practicable,  be  conducted  separately,  in  order  to  avoid  undue  jeal- 
ousies and  jars  and  conflicts  of  jurisdiction  and  power.  ]>ut  there 
is  no  reason  for  laying  this  down  as  a  rule  of  universal  application. 
It  should  never  be  made  to  override  the  plain  and  manifest  dictates 
of  the  Constitution  itself.  We  cannot  yield  to  such  a  transcendental 
view  of  state  sovereignty.  The  Constitution  and  laws  of  the  United 
States  are  the  supreme  law  of  the  land,  and  to  these  every  citizen  of 
every  State  owes  obedience,  whether  in  his  individual  or  official 
capacity.  There  are  very  few  subjects,  it  is  true,  in  which  our 
system  of  government,  complicated  as  it  is,  requires  or  gives  room  , 
for  conjoint  action  between  the  State  and  national  sovereignties.' 
Generally,  the  powers  given  by  the  Constitution  to  the  government 
of  the  United  States  are  given  over  distinct  branches  of  sovereignty 
from  which  the  State  governments,  either  expressly  or  by  necessary 
implication,  are  excluded.  But  in  this  case,  expressl}^,  and  in  some 
others,  by  implication,  as  we  have  seen  in  the  case  of  pilotage,  a  con- 
current jurisdiction  is  contemplated,  that  of  the  State,  however, 
being  subordinate  to  that  of  the  United  States,  whereby  all  question 
of  precedency  is  eliminated. 

In  what  we  have  said,  it  must  be  remembered  that  we  are  dealing 
only  with  the  subject  of  elections  of  representatives  to  Congress.  If 
for  its  own  convenience  a  State  sees  fit  to  elect  State  and  county 
officers  at  the  same  time  and  in  conjunction  with  the  election  of 
representatives.  Congress  will  not  be  thereby  deprived  of  the  right 
to  make  regulations  in  reference  to  the  latter.  We  do  not  mean  to 
say,  however,  that  for  any  acts  of  the  officers  of  election,  having 
exclusive  reference  to  the  election  of  State  or  county  officers,  they 
will  be  amenable  to  Federal  jurisdiction;  nor  do  we  understand  that 
the  enactments  of  Congress  now  under  consideration  have  any  aj)pli- 
cation  to  such  acts. 

It  must  also  be  remembered  that  we  are  dealing  with  the  question 
of  power,  not  of  the  expediency  of  any  regulations  which  Congress 
has  made.  That  is  not  within  the  pale  of  our  jurisdiction.  In 
exercising  the  power,  however,  we  are  bound  to  presume  that  Con- 
gress has  done  so  in  a  judicious  manner;  that  it  has  endeavored 
to  guard  as  far  as  possible  against  any  unnecessary  interference  with 
State  laws  and  regulations,  with  the  duties  of  State  officers,  or  with 
local  prejudices.  It  could  not  act  at  all  so  as  to  accomplish  any 
beneficial  object  in  preventing  frauds  and  violence,  and  securing  the 
faithful  performance  of   duty  at  the   elections,   without   providing 


62  RELATION   OF   STATES   TO   FEDERAL   GOVERNMENT.       [CHAP.  II. 

for  the  presence  of  officers  and  agents  to  carry  its  regulations  into 
effect.  It  is  also  difficult  to  see  how  it  could  attain  these  objects 
without  imposing  proper  sanctions  and  penalties  against  offenders. 

The  views  we  have  expressed  seem  to  us  to  be  founded  on  such 
plain  and  practical  principles  as  hardly  to  need  any  labored  argu- 
ment in  their  support.  We  may  mystify  anything.  But  if  we  take 
a  plain  view  of  the  words  of  the  Constitution,  and  give  to  them  a 
fair  and  obvious  interpretation,  we  cannot  fail  in  most  cases  of 
coming  to  a  clear  understanding  of  its  meaning.  We  shall  not  have 
far  to  seek.  We  shall  find  it  on  the  surface,  and  not  in  the  pro- 
found depths  of  speculation. 

The  greatest  difficulty  in  coming  to  a  just  conclusion  arises  from 
mistaken  notions  with  regard  to  the  relations  which  subsist  between 
the  State  and  National  governments.  It  seems  to  be  often  over- 
looked that  a  national  constitution  has  been  adopted  in  this  country, 
establishing  a  real  government  therein,  operating  upon  persons  and 
territory  and  things;  and  which,  moreover,  is,  or  should  be,  as  dear 
to  every  American  citizen  as  his  State  government  is.  W' henever 
the  true  conception  of  the  nature  of  this  government  is  once  con- 
ceded, no  real  difficulty  will  arise  in  the  just  interpretation  of  its 
powers.  But  if  we  allow  ourselves  to  regard  it  as  a  hostile  organi- 
zation, opposed  to  the  proper  sovereignty  and  dignity  of  the  State 
governments,  we  shall  continue  to  be  vexed  with  difficulties  as  to 
its  jurisdiction  and  authority.  ISTo  greater  jealousy  is  required  to 
be  exercised  towards  this  government  in  reference  to  the  preserva- 
tion of  our  liberties,  than  is  proper  to  be  exercised  towards  the 
State  governments.  Its  powers  are  limited  in  number,  and  clearly 
defined;  and  its  action  within  the  scope  of  those  powers  is  re- 
strained by  a  sufficiently  rigid  bill  of  rights  for  the  protection  of 
its  citizens  from  oppression.  The  true  interest  of  the  people  of  this 
country  requires  that  both  the  national  and  State  governments 
should  be  allowed,  without  jealous  interference  on  either  side,  to 
exercise  all  the  powers  which  respectively  belong  to  them  according 
to  a  fair  and  practical  construction  of  the  Constitution.  State  rights 
and  the  rights  of  the  United  States  should  be  equally  respected. 
Both  are  essential  to  the  preservation  of  our  liberties  and  the  per- 
petuity of  our  institutions.  But,  in  endeavoring  to  vindicate  the 
one,  we  should  not  allow  our  zeal  to  nullify  or  impair  the  other. 

Several  other  questions  bearing  upon  the  present  controvers}-  have 
been  raised  by  the  counsel  of  the  petitioners.  Somewhat  akin  to 
the  argument  which  has  been  considered  is  the  objection  that  the 
deputy  marshals  authorized  by  the  act  of  Congress  to  be  created  and 
to  attend  the  elections  are  authorized  to  keep  the  peace ;  and  that 
this  is  a  duty  which  belongs  to  the  State  authorities  alone.  It  is 
argued  that  the  preservation  of  peace  and  good  order  in  society  is 
not  within  the  powers  confided  to  the  government  of  the  United 
States,  but  belongs  exclusively  to  the  States.  Here  again  we  are 
met  with  the  theory  that  the  government  of  the  United  States  does 


CHAP.  II.]  EX   PARTE   SIEBOLD.  63 

not  rest  upon  the  soil  and  territory  of  the  country.  "We  think  that 
this  theory  is  founded  on  an  entire  misconception  of  the  nature  and 
powers  of  that  government.  We  hold  it  to  be  an  incontrovertible 
principle  that  the  government  of  the  United  States  may,  by  means 
of  physical  force,  exercised  through  its  official  agents,  execute  on 
every  foot  of  American  soil  the  powers  and  functions  that  belong  to 
it.  This  necessarily  involves  the  power  to  command  obedience  to 
its  laws,  and  hence  the  power  to  keep  the  peace  to  that  extent. 

This  power  to  enforce  its  laws  and  to  execute  its  functions  in  all 
places  does  not  derogate  from  the  power  of  the  State  to  execute  its 
laws  at  the  same  time  and  in  the  same  places.  The  one  does  not 
exclude  the  other,  except  where  both  cannot  be  executed  at  the 
same  time.  In  that  case,  the  words  of  the  Constitution  itself 
show  which  is  to  yield.  "This  Constitution,  and  all  laws  which 
shall  be  made  in  pursuance  thereof,  .  .  .  shall  be  the  supreme 
law  of  the  land," 

This  concurrent  jurisdiction  which  the  national  government  nec- 
essarily possesses  to  exercise  its  powers  of  sovereignty  in  all  parts  of 
the  United  States  is  distinct  from  that  exclusive  power  which,  by 
the  first  article  of  the  Constitution,  it  is  authorized  to  exercise  over 
the  District  of  Columbia,  and  over  those  places  within  a  State  Avhich 
are  purchased  by  consent  of  the  legislature  thereof,  for  the  erection 
of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful  build- 
ings. There  its  jurisdiction  is  absolutely  exclusive  of  that  of  the 
State,  unless,  as  is  sometimes  stipulated,  power  is  given  to  the  latter 
to  serve  the  ordinary  process  of  its  courts  in  the  precinct  acquired. 

Without  the  concurrent  sovereignty  referred  to,  the  national  j 
government  would  be  nothing  but  an  advisory  government.  Its  / 
executive  power  would  be  absolutely  nullified. 

Why  do  we  have  marshals  at  all,  if  they  cannot  physically  lay 
their  hands  on  persons  and  things  in  the  performance  of  their  projier 
duties  ?  What  functions  can  they  perform,  if  thoy  cannot  use 
>lorce  ?  In  executing  the  j)rocesses  of  the  courts,  must  they  call  on 
the_  nearest  constable  for  protection  ?  must  they  rely  on  him  to  use 
the  requisite  compulsion,  and  to  keep  the  peace  whilst  they  are 
soliciting  and  entreating  the  parties  and  bystanders  to  allow  the 
law  to  take  its  course  ?  This  is  the  necessary  consequence  of  the 
positions  that  are  assumed.  If  we  indulge  in  such  impractical)le 
views  as  these,  and  keep  on  refining  and  re-refining,  we  shall  drive 
the  national  government  out  of  the  United  States,  and  relegate  it 
to  the  District  of  Columbia,  or  perhaps  to  some  foreign  soil.  We 
shall  bring  it  back  to  a  condition  of  greater  helplessness  than  that 
of  the  old  confederation. 

The  argument  is  based  on  a  strained  and  impracticable  view  of 
the  nature  and  powers  of  the  national  government.  It  must  execute 
its  powers,  or  it  is  no  government.  It  must  execute  them  on  the 
land  as  well  as  on  the  sea,  on  things  as  well  as  on  persons.     And,  to 


> 


64     RELATION  OF  STATES  TO  FEDERAL  GOVERNMENT.   [CHAP.  II. 

do  this,  it  must  necessarily  have  power  to  command  obedience,  pre- 
serve order,  and  keep  the  peace;  and  no  person  or  power  in  this 
land  has  the  right  to  resist  or  question  its  authority,  so  long  as  it 
keeps  within  the  bounds  of  its  jurisdiction.  Without  specifying 
other  instances  in  which  this  power  to  preserve  order  and  keep  the 
peace  unquestionably  exists,  take  the  very  case  in  hand.  The  counsel 
for  the  petitioners  concede  that  Congress  may,  if  it  sees  fit,  assume 
the  entire  control  and  regulation  of  the  election  of  representatives. 
This  would  necessarily  involve  the  appointment  of  the  places  for 
holding  the  polls,  the  times  of  voting,  and  the  officers  for  holding 
the  election;  it  would  require  the  regulation  of  the  duties  to  be 
performed,  the  custody  of  the  ballots,  the  mode  of  ascertaining  the 
result,  and  every  other  matter  relating  to  the  subject.  Is  it  possible 
'  that  Congress  could  not,  in  that  case,  provide  for  keeping  the  peace 
at  such  elections,  and  for  arresting  and  punishing  those  guilty  of 
breaking  it  ?  If  it  could  not,  its  power  would  be  but  a  shadow  and 
a  name.  But,  if  Congress  can  do  this,  where  is  the  difference  in 
principle  in  its  making  provision  for  securing  the  preservation  of 
the  peace,  so  as  to  give  to  every  citizen  his  free  right  to  vote  with- 
out molestation  or  injury,  when  it  assumes  only  to  supervise  the 
regulations  made  by  the  State,  and  not  to  supersede  them  entirely  ? 
In  our  judgment,  there  is  no  difference;  and,  if  the  power  exists  in 
the  one  case  it  exists  in  the  other. 

[The  Court  holds  that  Congress  had  power  to  vest  the  appoint- 
ment of  supervisors  of  elections  in  the  Circuit  Courts.] 

The  doctrine  laid  down  at  the  close  of  counsel's  brief,  that  the 
State  and  National  governments  are  co-ordinate  and  altogether  equal, 
on  which  their  whole  argument,  indeed,  is  based,  is  only  partially 
true. 

The  true  doctrine  as  we  conceive,  is  this,  that  whilst  the  States 
are  really  sovereign  as  to  all  matters  which  have  not  been  granted 
to  the  jurisdiction  and  control  of  the  United  States,  the  Constitu- 
tion and  constitutional  laws  of  the  latter  are,  as  we  have  already 
said,  the  supreme  law  of  the  land;  and,  when  they  conflict  with 
the  laws  of  the  States,  they  are  of  paramount  authority  and  obliga- 
tion. This  is  the  fundamental  principle  on  which  the  authority  of 
the  Constitution  is  based;  and  unless  it  be  conceded  in  practice,  as 
well  as  theory,  the  fabric  of  our  institutions,  as  it  was  contemplated 
by  its  founders,  cannot  stand.  The  questions  involved  have  respect 
not  more  to  the  autonomy  and  existence  of  the  States,  than  to  the 
continued  existence  of  the  United  States  as  a  government  to  which 
every  American  citizen  may  look  for  security  and  protection  in  every 
part  of  the  land. 

"We  think  that  the  cause  of  commitment  in  these  cases  was  lawful, 
and  that  the  application  for  the  writ  of  habeas  corpus  must  be  denied. 

Application  denied.^ 

1  Mr.  Justice  Field  delivered  a  dissenting  opinion,  in  which  Mr.  Justice  Clif- 
rOBD  concurred. 


IN   RE   NEAGLE. 


A  TN^ 


In  re  NEAGLE. 
135  United  States,  1.     1889. 


65 


This  is  an  appeal  by  Cunningham,  sheriff  of  the  county  of  San 
Joaquin,  in  the  State  of  California,  from  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  California, 
discharging  David  Neagle  from  the  custody  of  said  sheriff,  who  held 
him  a  prisoner  on  a  charge  of  murder. 

On  the  16th  day  of  August,  1889,  there  was  presented  to  Judge 
Sawyer,  the  Circuit  Judge  of  the  United  States  for  the  Ninth  Circuit, 
embracing  the  Northern  District  of  California,  a  petition  signed 
David  Neagle,  deputy  United  States  marshal,  by  A.  L.  Farrish  on  his 
behalf.  This  petition  represented  that  the  said  Farrish  was  a  deputy 
marshal  duly  appointed  for  the  Northern  District  of  California  by 
J.  C.  Franks,  who  was  the  marshal  of  that  district.  It  further 
alleged  that  David  Neagle  was,  at  the  time  of  the  occurrences  recited 
in  the  petition  and  at  the  time  of  filing  it,  a  duly  appointed  and 
acting  deputy  United  States  marshal  for  the  same  district.  It  then 
proceeded,  to  state  that  said  Neagle  was  imprisoned,  confined  and 
restrained  of  his  liberty  in  the  county  jail  in  San  Joaquin  County, 
in  the  State  of  California,  by  Thomas  Cunningham,  sheriff  of  said 
county,  upon  a  charge  of  murder,  under  a  warrant  of  arrest. 

The  petition  then  recites  the  circumstances  of  a  rencontre  between 
said  Neagle  and  David  S.  Terry,  in  which  the  latter  was  instantly 
killed  by  two  shots  from  a  revolver  in  the  hands  of  the  forrner.  The 
circumstances  of  this  encounter  and  of  what  led  to  it  will  be  consid- 
ered with  more  particularity  hereafter.  The  main  allegation  of  this 
petition  was  that  Neagle,  as  United  States  deputy  marshal,  acting 
under  the  orders  of  Marshal  Franks,  and  in  pursuance  of  instructions 
from  the  Attorney  General  of  the  United  States,  had,  in  consequence 
of  an  anticipated  attempt  at  violence  on  the  part  of  Terry  against  the 
Honorable  Stephen  J.  Field,  a  justice  of  the  Supreme  Court  of  the 
United  States,  been  in  attendance  upon  said  justice,  and  was  sitting 
by  his  side  at  a  breakfast  table  when  a  murderous  assault  was  made 
by  Terry  on  Judge  Field,  and  in  defence  of  the  life  of  the  judge  the 
homicide  was  committed  for  which  Neagle  was  held  by  Cunningham. 
The  allegation  was  very  distinct  that  Justice  Field  was  engaged  in 
the  discharge  of  his  duties  as  circuit  justice  of  the  United  States  for 
that  circuit,  having  held  court  at  Los  Angeles,  one  of  the  places  at 
which  the  court  is  by  law  held,  and,  having  left  that  court,  was  on 
his  way  to  San  Francisco  for  the  purpose  of  holding  the  Circuit  Court 
at  that  place.  The  allegation  was  also  very  full  that  Neagle  was 
directed  by  Marshal  Franks  to  accompany  him  for  the  purpose  of 
protecting  him,  and  that  these  orders  of  Franks  were  given  in  autici- 

5 


66  RELATION    OF   STATES   TO   FEDERAL   GOVERNMENT.       [CHAP.  II. 

pation  of  the  assault  which  actually  occurred.  It  was  also  stated, 
in  more  general  terms,  that  Marshal  Neagle,  in  killing  Terry  under 
the  circumstances,  was  in  the  discharge  of  his  duty  as  an  officer  of 
the  United  States,  and  was  not,  therefore,  guilty  of  a  murder,  and 
that  his  imprisonment  under  the  warrant  held  by  Sheriff  Cunningham 
is   in   violation  of  the  laws  and  Constitution  of  the  United  States, 

i  and  that  he   is   in  custody  for  an  act  done  in  pursuance  of  the  laws 

\  of  the  United  States. 

[The  statement  further  shows  the  issuing  of  the  writ  and  the 
return  of  the  sheriff  thereto  alleging  that  he  detained  Neagle  by 
virtue  of  a  warrant  issued  out  of  the  justice's  court,  Spokane  town- 
ship, County  of  San  Joaquin,  State  of  California,  a  copy  of  which 
was  annexed  ;  that  Cunningham  filed  a  demurrer  to  the  writ  and 
Neagle  filed  a  traverse  to  the  return  of  the  sheriff ;  and  that  upon  a 
hearing  in  the  Circuit  Court  before  Circuit  Judge  Sawyer  and  District 
Judge  Sabin,  it  was  found  that  the  allegations  of  the  petitioner  in 
his  traverse  to  the  return  of  the  sheriff  were  true  and  that  Neagle 
was  in  custody  for  an  act  done  in  pursuance  of  a  law  of  the  United 
States  and  was  in  custody  in  violation  of  the  Constitution  and  laws 
of  the  United  States,  and  was  therefore  ordered  to  be  discharged  from 
custody.  From  this  order  an  appeal  was  allowed  to  this  court.] 
Mr.  Justice  Miller  delivered  the  opinion  of  the  Court. 

We  cannot  doubt  the  power  of  the  President  to  take  measures  for 
the  protection  of  a  judge  of  one  of  the  courts  of  the  United  States, 
who,  while  in  the  discharge  of  the  duties  of  his  office,  is  threatened 
with  a  personal  attack  which  may  probably  result  in  his  death,  and 
we  think  it  clear  that  where  this  protection  is  to  be  afforded^  through 
the  civil  power,  the  Department  of  Justice  is  the  proper  one  to  set" 
,in  motion  the  necessary  means  of  protection.  The  correspondence 
already  recited  in  this  opinion  between  the  marshal  of  the  Northern 
District  of  California,  and  the  Attorney  General,  and  the  district 
attorney  of  the  United  States  for  that  district,  although  prescribing 
no  very  specific  mode  of  affording  this  protection  by  the  Attorney 
General,  is  sufficient,  we  think,  to  warrant  the  marshal  in  taking  the 
steps  which  he  did  take,  in  making  the  provisions  Avhich  he  did  make, 
for  the  protection  and  defence  of  Mr.  Justice  Field. 

That  there  is  a  peace  of  the  United  States  ;  that  a  man  assaulting 
a  judge  of  the  United  States  while  in  the  discharge  of  his  duties 
violates  that  peace ;  that  in  such  case  the  marshal  of  the  United 
States  stands  in  the  same  relation  to  the  peace  of  the  United  States 
which  the  sheriff  of  the  county  does  to  the  peace  of  the  State  of 
California ;  are  questions  too  clear  to  need  argument  to  prove  them. 
That  it  would  be  the  duty  of  a  sheriff,  if  one  had  been  present  at  this 
assault  by  Terry  upon  Judge  Field,  to  prevent  this  breach  of  the 
peace,  to  prevent  this  assault,  to  prevent  the  murder  which  was  con- 


CHAP.  II.]  IN   RE   NEAGLE.  67 

templated  by  it,  cannot  be  doubted.  And  if,  in  performing  this  duty, 
it  became  necessary  for  the  protection  of  Judge  Field,  or  of  liimself, 
to  kill  Terry,  in  a  case  where,  like  this,  it  was  evidently  a  question 
of  the  choice  of  who  should  be  killed,  the  assailant  and  violator  of 
the  law  and  disturber  of  the  peace,  or  the  unoffending  man  who 
was  in  his  power,  there  can  be  no  question  of  the  authority  of  the 
sheriff  to  have  killed  Terry.  So  the  marshal  of  the  United  States, 
charged  with  the  duty  of  protecting  and  guarding  the  judge  of  the 
United  States  court  against  this  special  assault  upon  his  person  and 
his  life,  being  present  at  the  critical  moment,  when  prompt  action 
was  necessary,  found  it  to  be  his  duty,  a  duty  which,  he  had  no  liberty  ' 
to  refuse  to  perform,  to  take  the  steps  which  resulted  in  Terry's 
death.  This  duty  was  imposed  on  him  by  the  section  of  the  Revised 
Statutes  which  we  have  recited  [R.  S.,  §  788],  in  connection  with  the 
powers  conferred  by  the  State  of  California  upon  its  peace  officers, 
which  become,  by  this  statute,  in  proper  cases,  transferred  as  duties 
to  the  marshals  of  the  United  States. 

But  all  these  questions  being  conceded,  it  is  urged  against  the 
relief  sought  by  this  writ  of  habeas  corpus,  that  the  question  of  the 
guilt  of  the  prisoner  of  the  crime  of  murder  is  a  question  to  be  deter- 
mined by  the  laws  of  California,  and  to  be  decided  by  its  courts,  and 
that  there  exists  no  power  in  the  government  of  the  United  States  to 
take  away  the  prisoner  from  the  custody  of  the  proper  authorities 
of  the  State  of  California  and  carry  him  before  a  judge  of  the  court 
of  the  United  States,  and  release  him  without  a  trial  by  jury  accord- 
ing to  the  laws  of  the  State  of  California.  That  the  statute  of  the 
United  States  authorizes  and  directs  such  a  proceeding  and  such  a 
judgment  in  a  case  where  the  offence  charged  against  the  prisoner 
consists  in  an  act  done  in  pursuance  of  a  law  of  the  United  States 
and  by  virtue  of  its  authority,  and  where  the  imprisonment  of  the 
party  is  in  violation  of  the  Constitution  and  laws  of  the  United 
States,  is  clear  by  its  express  language. 

The  enactments  now  found  in  the  Revised  Statutes  of  the  United 
States  on  the  subject  of  the  writ  of  habeas  corjms  are  the  result  of  a 
long  course  of  legislation  forced  upon  Congress  by  the  attempt  of 
the  States  of  the  Union  to  exercise  the  power  of  imprisonment  over 
officers  and  other  persons  asserting  rights  under  the  Federal  govern- 
ment or  foreign  governments,  which  the  States  denied.  The  original 
act  of  Congress  on  the  subject  of  the  writ  of  habeas  corpus^  by  its 
14th  section,  authorized  the  judges  and  the  courts  of  the  United 
States,  in  the  case  of  prisoners  in  jail  or  in  custody  under  or  by  color 
of  the  authority  of  the  United  States,  or  committed  for  trial  before  / 
some  court  of  the  same,  or  when  necessary  to  be  brought  into  court 
to  testify,  to  issue  the  writ,  and  the  judge  or  court  before  whom  they 
were  brought  was  directed  to  make  inquiry  into  the  cause  of  commit- 
ment. 1  Stat.  81,  c.  20,  §  14.  This  did  not  present  the  question,  or, 
at  least,  it  gave  rise  to  no  question  which  came  before  the  courts,  as 


68  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.      [CHAP.  II. 

to  releasinf'  by  this  writ  parties  held  in  custody  under  the  laws  of 
the  States.     But  when,  during  the  controversy  growing  out  of  the 
/nullification  laws  of  South  Carolina,  officers  of  the  United  States  were 
/  arrested  and  imprisoned  for  the  performance  of  their  duties  in  col- 
j   lecting  the  revenue  of  the  United  States  in  that  State,  and  held  by 
'    the  State  authorities,  it  became  necessary  for  the  Congress  of  the 
United  States  to  take  some  action  for  their  relief.     Accordingly  the 
-     act  of  Congress  of  ]\[arch  2,  1833,  4  Stat.  634,  c.  57,  §  7,  among  other 
remedies  for  such  condition  of  affairs,  provided,  by  its  7th  section, 
that  the  Federal  judges  should  grant  writs  of  habeas  corpus  in  all 
cases  of  a  prisoner  in  jail  or  confinement,  where  he  should  be  com- 
mitted or  confined  on  or  by  any  authority  or  law,  for  any  act  done, 
\    or  omitted  to  be  done,  in  pursuance  of  a  law  of  the  Uiiited  States,  or 
\  any  order,  process  or  decree  of  any  judge  or  court  thereof. 

The  next  extension  of  the  circumstances  on  which  a  writ  of  habeas 
coiyus  might  issue  by  the  Federal  judges  arose  out  of  the  celebrated 
McLeod  Case,  in  which  McLeod,   charged  with  murder,  in  a  State 
court  of   New  York,  had  pleaded  that  he  was  a  British  subject,  and 
that  what  he  had  done  was  under  and  by  the  authority  of  his  govern- 
ment, and  should  be  a  matter  of  international  adjustment,  and  that 
he  was  not  subject  to  be  tried  by  a  court  of  New  York  under  the  laws 
of  that  State.     The  Federal  government  acknowledged  the  force  of 
this  reasoning,  and  undertook  to  obtain  from  the  government  of  the 
State  of  New  York  the  release  of  the  prisoner,  but  failed.     He  was, 
however,  tried  and  acquitted,  and  afterwards  released  by  the  State 
of  New  York.    This  led  to  an  extension  of  the  powers  of  the  Federal 
judges  under  the  writ  of  habeas  corpus,  by  the  act  of  August  29,  1842, 
5  Stat.   539,  c.  257,    entitled   "  An  act  to  provide  further  remedial 
justice  in  the  courts  of  the  United  States."     It  conferred  upon  them 
Uhe  power  to  issue  a  writ  of  habeas  corpus  in  all  cases  where  the 
prisoner  claimed  that  the  act  for  which  he  was  held  in  custody  was 
done  under  the  sanction  of  any  foreign  power,  and  where  the  validity 
and  effect  of  this  plea  depended  upon  the  law  of  nations.     In  advo- 
cating the  bill,  which  afterwards  became  a  law,   on  this  subject. 
Senator  Berrien,  who  introduced  it  into  the  Senate,  observed :  "  The 
object  was  to  allow  a  foreigner,  prosecuted  in  one  of  the  States  of 
the  Union  for  an  offence  committed  in  that  State,  but  which  he 
pleads  has  been  committed  under  authority  of  his  own  sovereign  or 
the  authority  of  the  law  of  nations,  to  be  brought  up  on  that  issue 
before   the  only  competent  judicial  power  to  decide  upon  matters 
involved  in  foreign  relations  or  the  law  of  nations.     The  plea  must 
show  that  it  has  reference  to  the  laws  or  treaties  of  the  United  States 
or  the  law  of  nations,  and  showing  this,  the  writ  of  habeas  corpus  is 
awarded  to  try  that  issue.     If  it  shall  appear  that  the  accused  has  a 
bar  on  the  plea  alleged,  it  is  right  and  proper  that  he  should  not  be 
delayed  in  prison  awaiting  the  proceedings  of  the  State  jurisdiction 
on  the  preliminary  issue  of  his  plea  at  bar.    If  satisfied  of  the  exist- 


CHAP.  II.]  IN   RE   NEAGLE.  69 

ence  in  fact  and  validity  in  law  of  the  bar,  the  Federal  jurisdiction 
will  have  the  power  of  administering  prompt  relief."  No  more 
forcible  statement  of  the  principle  on  which  the  law  of  the  case  now 
before  us  stands  can  be  made. 

The  next  extension  of  the  powers  of  the  court  under  the  writ  of 
habeas  corpus  was  the  act  of  February  5,  1867,  14  Stat.  385,  c.  28, 
and  this  contains  the  broad  ground  of  the  present  Revised  Statutes, 
under  which  the  relief  is  sought  in  the  case  before  us,  and  includes 
all  cases  of  restraint  of  liberty  in  violation  of  the  Constitution  or  a 
law  or  treaty  of  the  United  States,  and  declares  that  "  the  said  court 
or  judge  shall  proceed  in  a  summary  way  to  determine  the  facts  of 
the  case,  by  hearing  testimony  and  the  arguments  of  the  parties  |  ll 
interested,  and  if  it  shall  appear  that  the  petitioner  is  deprived  of 
his  or  her  liberty  in  contravention  of  the  Constitution  or  laws  of  the 
United  States,  he  or  she  shall  forthwith  be  discharged  and  set  at 
liberty." 

The  same  answer  is  given  in  the  present  case.  To  the  objection 
made  in  argument,  that  the  prisoner  is  discharged  by  this  writ  from 
the  power  of  the  State  court  to  try  him  for  the  whole  offence,  the 
reply  is,  that  if  the  prisoner  is  held  in  the  state  court  to  answer  for 
an  act  which  he  was  authorized  to  do  by  the  law  of  the  United  States, 
which  it  was  his  duty  to  do  as  marshal  of  the  United  States,  and  if  j  i 
in  doing  that  act  he  did  no  more  than  what  was  necessary  and  proper"^/ 1 
for  him  to  do,  he  cajinot  be  guilty  of  a  crime  under  the  law  of  the 
State  of  California.  When  these  things  are  shown,  it  is  established 
that  he  is  innocent  of  any  crime  against  the  laws  of  the  State,  or  of  \  \ 
any  other  authority  whatever.  There  is  no  occasion  for  any  further  '  ^ 
trial  in  the  State  court,  or  in  any  court.  The  Circuit  Court  of  the 
United  States  was  as  competent  to  ascertain  these  facts  as  any  other 
tribunal,  and  it  was  not  at  all  necessary  that  a  jury  should  be  impan- 
elled to  render  a  verdict  on  them.  It  is  the  exercise  of  a  power 
common  under  all  systems  of  criminal  jurisprudence.  There  must 
always  be  a  preliminary  examination  by  a  committing  magistrate,  or 
some  similar  authority,  as  to  whether  there  is  an  offence  to  be  sub- 
mitted to  a  jury,  and  if  this  is  submitted  in  the  first  instance  to  a 
grand  jury,  that  is  still  not  the  right  of  trial  by  jury  which  is  insisted 
on  in  the  present  argument. 

We  have  thus  given,  in  this  case,  a  most  attentive  consideration 
to  all  the  questions  of  law  and  fact  which  we  have  thought  to  be 
properly  involved  in  it.  We  have  felt  it  to  be  our  duty  to  examine 
into  the  facts  with  a  completeness  justified  by  the  importance  of  the 
case,  as  well  as  from  the  duty  imposed  upon  us  by  the  statute,  which 
we  think  requires  of  us  to  place  ourselves,  as  far  as  possible,  in  the 
place  of  the  Circuit  Court  and  to  examine  the  testimony  and  the 
arguments  in  it,  and  to  dispose  of  the  party  as  law  and  justice 
require. 


70  RELATION    OP   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  IL 

/"     The  result  at  which  we  have  arrived  upon  this  examination  is,  that 

/     iu  the  protection  of  the  person  and  the  life  of  Mr.  Justice  Field  while 

in  the  discharge  of  his  official  duties,  Ne-igle  was  authorized  to  resist 

the  attack  of  Terry  upon  him  ;  that  Neagle  was  correct  in  the  belief 

that  without  prompt  action  on  his  part  the  assault  of  Terry  upon  the 

judge  would  have  ended  in  the  death  of  tlie  latter;  that  such  being 

/N^  his  well-founded  belief,  he  was  justified  in  taking  the  life  of  Terry, 

'■  as  the  only  means  of  preventing  the  death  of  the   man  who  was 

intended  to  be  his  victim;  that  in  taking  the  life  of  Terry,  under  the 

circumstances,  he  was  acting  under  the  authority  of  the  law  of  the 

United  States,  and  was  justified  in  so  doing ;  and  that  he  is  not  liable 

to  answer  in  the  courts  of  California  on  account  of  his  part  iu  that 

transaction. 

We  therefore  affirm  the  judgment  of  the  Circuit  Court  authorizing 
his  discharge  from  the  custody  of  the  sheriff  of  San  Joaquin 
Count//. 

Mr.  Justice  Lamar  (with  whom  concurred  Mr.  Chief  Justice 
Fuller)  dissenting. 

The  Chief  Justice  and  myself  are  unable  to  assent  to  the  conclusion 
reached  by  the  majority  of  the  court. 

Our  dissent  is  not  based  on  any  conviction  as  to  the  guilt  or  inno- 
cence of  the  appellee.  The  view  which  we  take  renders  that  question 
immaterial  to  the  inquiry  presented  by  this  appeal.  That  inquiry 
is,  whether  the  appellee,  Neagle,  shall  in  this  ex  parte  proceeding  be 
discharged  and  delivered  from  any  trial  or  further  inquiry  in  any 
court.  State  or  Federal,  for  what  he  has  been  accused  of  in  the  forms 
prescribed  by  the  constitution  and  laws  of  the  State  in  which  the  act 
in  question  was  committed.  Upon  that  issue  we  hold  to  the  prin- 
ciple announced  by  this  court  in  the  case  of  Ex  parte  Crouch,  112 
U.  S.,  178,  180,  in  which  Mr.  Chief  Justice  Waite,  delivering  the 
opinion  of  the  court,  said:  "It  is  elementary  learning  that,  if  a 
prisoner  is  in  the  custody  of  a  State  court  of  competent  jurisdiction, 
not  illegally  asserted,  he  cannot  be  taken  from  that  jurisdiction  and 
discharged  on  habeas  corpus  issued  by  a  court  of  the  Uuited  States, 
j  simply  because  he  is  not  guilty  of  the  offence  for  which  he  is  held. 
I  All  questions  which  may  arise  in  the  orderly  course  of  the  proceed- 
j  ing  against  him  are  to  be  determined  by  the  court  to  whose  jurisdic- 
'  tion  he  has  been  subjected,  and  no  other  court  is  authorized  to 
interfere  to  prevent  it.  Here  the  right  of  the  prisoner  to  a  discharge 
depends  alone  on  the  sufficiency  of  his  defence  to  the  information 
under  which  he  is  held.  Whether  his  defence  is  sufficient  or  not  is 
for  the  court  which  tries  him  to  determine.  If,  in  this  determination, 
errors  are  committed,  they  can  only  be  corrected  in  an  appropriate 
form  of  proceeding  for  that  purpose.  The  office  of  a  writ  of  habeas 
corpus  is  neither  to  correct  such  errors,  nor  to  take  the  prisoner  away 
from  the  court  which  holds  him  for  trial,  for  fear,  if  he  remains, 


CHAP.  IL]  in   EE   NEAGLE.  71 

they  may  be  committed-  Authorities  to  this  effect  in  our  own  reports 
are  numerous.  Ex  parte  Watkins,  3  Pet.  202 ;  Ex  parte  Lange,  18 
Wall.  163,  166;  Ex  parte  Parks,  92  U.  S.  18,  23;  Ex  paHe  Siebold, 
100  U.  S.  371,  374;  Ex  parte  Virginia,  100  U.  S.  339,  313;  Ex  parte 
Rowland,  104  U.  S.  604,  612;  Ex  parte  Curtis,  106  U.  S.  371,  375; 
Ex  parte  Yarbrough,  110  U.  S.  651,  653." 

Many  of  the  propositions  advanced  in  behalf  of  the  appellee  and 
urged  with  impressive  force  we  do  not  challenge.  We  do  not  ques- 
tion, for  instance,  the  soundness  of  the  elaborate  discussion  of  the 
history  of  the  office  and  function  of  the  writ  of  habeas  corpus,  its 
operation  under  and  by  virtue  of  section  753  of  the  Revised  Statutes, 
or  the  propriety  of  its  use  in  the  manner  and  for  the  purposes  for 
which  it  has  been  used,  in  any  case  where  the  prisoner  is  under 
arrest  by  a  State  for  an  act  done  "  in  pursuance  of  a  law  of  the 
United  States."  Nor  do  we  contend  that  any  objection  arises  to  such 
use  of  the  writ,  and  based  merely  on  that  fact,  in  eases  where  no 
provision  is  made  by  the  Federal  law  for  the  trial  and  conviction  of 
the  accused.  Nor  do  we  questiou  the  general  propositions,  that  the 
Federal  government  established  by  the  Constitution  is  absolutely 
sovereign  over  every  foot  of  soil,  and  over  every  person,  within  the 
national  territory,  within  the  sphere  of  action  assigned  to  it ;  and 
that  within  that  sphere  its  constitution  and  laws  are  the  supreme 
law  of  the  land,  and  its  proper  instrumentalities  of  government  can  1 
be  subjected  to  no  restraint,  and  can  be  held  to  no  accountability  f 
whatever.  Nor,  again,  do  we  dispute  the  proposition  that  whatever 
is  necessarily  implied  in  the  Constitution  and  laws  of  the  United 
States  is  as  much  a  part  of  them  as  if  it  were  actually  expressed. 
All  these  questions  we  pretermit. 

The  recognition  by  this  court,  including  ourselves,  of  their  sound- 
ness does  not  in  the  least  elucidate  the  case ;  for  they  lie  outside  of 
the  true  controversy.  The  ground  on  which  we  dissent,  and  which  \ 
in  and  by  itself  seems  to  be  fatal  to  the  case  of  the  appellee,  is  this  : 
That  in  treating  section  753  of  the  Revised  Statutes  as  an  act  of 
authority  for  this  particular  use  of  the  writ  a  wholly  inadmissible 
construction  is  placed  on  the  word  "  law,"  as  used  in  that  statute, 
and  a  wholly  inadmissible  application  is  made  of  the  clause  "in 
custody  in  violation  of  the  Constitution  ...  of  the  United 
States."  ^ 


I 


N 


\ 


72  RELATION   OF  STATES  TO   FEDERAL  GOVERNMENT.      £CHAP.  II. 


HAUENSTEIN  v.   LYNHAM. 

100  United  States,  483.     1879. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 
Solomon  Hauenstein  died  in  the  city  of  Richmond  in  the  year 
1861  or  1862,  intestate,  unmarried,  and  without  children.  The  pre- 
cise date  of  his  death  is  not  material.  At  that  time  he  owned  and 
held  considerable  real  estate  in  the  city  of  Richmond.  An  inquisi- 
tion of  escheat  was  "prosecuted  by  the  escheator  for  that  district. 
A  verdict  and  judgment  were  rendered  in  his  favor.  When  he  was 
about  to  sell  the  property,  the  plaintiffs  in  error,  pursuant  to  a  law 
of  the  State,  filed  their  petition,  setting  forth  that  they  were  the 
heirs-at-law  of  the  deceased,  and  praying  that  the  proceeds  of  the 
sale  of  the  property  should  be  paid  over  to  them.  Testimony  was 
taken  to  prove  their  heirship  as  alleged,  but  the  court  was  of  opinion 
that,  conceding  that  fact  to  be  established,  they  could  have  no  valid 
claim,  and  dismissed  the  petition.  They  removed  the  case  to  the 
Court  of  Appeals.  That  court,  entertaining  the  same  views  as  the 
court  below,  affirmed  the  judgment.  They  thereupon  sued  out  this 
writ  of  error. 

The   plaintiffs    in   error   are   all   citizens   of   Switzerland.      The 

deceased  was  also  a  citizen  of  that  country,  and  removed  thence  to 

Virginia,  where  he  lived  and  acquired  the  property  to  which  this 

controversy  relates,  and  where  he  died.     The  validity  of  his  title  is 

not  questioned.     There  is  no  proof  that  he  denationalized  himself  or 

'ceased  to  be  a  citizen  and  subject  of   Switzerland.      His  j)riginal 

/  citizenship  is,  therefore,  to  be  presumed  to  have  continued.     Best^oiT 

!  Presumptions,  186.     According  to  the  record  his  domicile,  not  his 

\ citizenship,  was  changed.     The  testimony  as  to  the  heirship  of  the 

/plaintiffs  in  error  is  entirely  satisafctory.     There  was  no  controversy 

;  on  this  subject  in  the  argument  here.     The  parties  were  at  one  as 

to  all  the  facts.     Their  controversy  was  rested  entirely  upon  legal 

grounds. 

The  common  law  as  to  aliens,  except  so  far  as  it  has  been  modi- 
fied by  her  legislature,   is  the  local    law  of  Virginia.     2  Tucker's 
,  Blackst.,  App.,  Note  C.     By  that  law  "aliens  are  incapable  of  tak- 
j  ing  by  descent  or  inheritance,  for  they  are  not  allowed  to  have  any 
I  inheritable  blood  in  them."     2  Bla.  Com.,  249.     But  they  may  take 
by  grant  or  devise  though  not  by  descent.     In  other  words,  they  may 
■.  take  by  the  act  of  a  party,  but  not  by  operation  of  law ;  and  they 
■  may  convey  or  devise  to  another,  but  such  a  title  is  always  liable  to 
1  be  devested  at  the  pleasure  of  the  sovereign  by  office   found.     In 
such  cases  the  sovereign,  until  entitled  by  office  found  or  its  equiva- 
lent, cannot  pass  the  title  to  a  grantee.     In  these  respects  there  is 


CHAP.  II.]  HAUENSTEIN   V.   LYNHAM.  73 

no  difference  between  an  alien  friend  and  an  alien  enemy.     Fair- 
fax's Devisee  V.  Hunter's  Lessee,  7  Cranch,  603. 

The  law  of  nations  recognizes  the  liberty  of  every  government  to 
give  to  foreigners  only  such  rights,  touching  immovable  property 
wTtliih  its  territory,  as  it  may  see  fit  to  concede.  Vattel,  book  2,  c. 
8,  sect.  114.  In  our  country,  this  authority  is  primarily  in  the 
States  where  the  property  is  situated. 

This  brings  us  to  the  consideration  of  the  treaty  between  the 
United  States  and  the  Swiss  Confederation,  of  the  25th  of  November, 
1850.  The  fifth  article,  11  Stat.  590,  has  been  earnestly  pressed 
upon  our  attention,  and  is  the  hinge  of  the  controversy  between 
the  parties. 

The  first  part  of  the  article  is  devoted  to  personal  property,  and 
gives  to  the  citizens  of  each  country  the  fullest  power  touching  such 
property  belonging  to  them  in  the  other,  including  the  power  to 
dispose  of  it  as  the  owner  may  think  proper.  It  then  proceeds  as 
follows :  — 

"  The  foregoing  provisions  shall  be  applicable  to  real  estate  situate  within 
the  States  of  the  American  Uniou,  or  within  the  cantons  of  the  Swiss  Confed- 
eration, in  which  foreigners  shall  be  entitled  to  hold  or  inherit  real  estate. 

"  But  in  case  real  estate  situated  within  the  territories  of  one  of  the  con- 
tracting parties  should  fall  to  a  citizen  of  the  other  party,  who,  on  account  of 
his  being  an  alien,  could  not  be  permitted  to  hold  such  property  in  the  State 
or  in  the  canton  in  which  it  may  be  situated,  there  shall  be  accorded  to  the 
said  heir,  or  other  successor,  such  term  as  the  laws  of  the  State  or  canton  will 
permit  to  sell  such  property ;  he  shall  be  at  liberty  at  all  times  to  withdraw  and 
export  the  proceeds  thereof  without  difficulty,  and  without  paying  to  the  gov- 
ernment any  other  charges  than  those  which,  in  a  sinnlar  case,  would  be  paid 
by  an  inhabitant  of  the  country  iu  which  the  real  estate  may  be  situated." 

It  remains  to  consider  the  effect  of  the  treaty  thus  construed  upon 
the  rights  of  the  parties. 

That  the  laws  of  the  State,  irrespective  of  the  treaty,  would  put  > 
the  fund  into  her  coffers,  is  no  objection  to  the  right  or  the  remedy 
claimed  by  the  plaintiffs  in  error. 

The  efficacy  of  the  treaty  is  declared  and  guaranteed  by  the  Con- 
stitution of  the  United  States.     That  instrument  took  effect  on  the 
fourth  day  of   March,  1789.     In   1796,  but  a  few  years  later,  this 
court   said:    "If   doubts   could   exist    before   the   adoption   of  the 
present  national  government,  they  must  be  entirely  removed  by  the 
sixth  article  of  the  Constitution,  which  provides  that  *  all  treaties ^ 
made   or  which  shall  be   made  under  the  authority  of  the  United' 
States,  shall  be  the^u])reme  law  of  the  htnd^  and  the  judges  in  every  I 
State  shall  be  bound  thereby,  any  thing  in  the  Constitution  or  laws  f 
of  any  State  to  the  contrary  notwithstanding.'      There   can  be  no 
limitation  on  the  power  of  the  people  of  the  United  States.     By 


7-4  RELATION   OF   STATES   TO    FEDERAL   GOVERNMENT.       [CHAP.  H. 

their  authority  the  State  constitutions  were  made,  and  by  their 
authority  the  Constitution  of  the  United  States  was  established;  and 
they  had  the  power  to  change  or  abolish  the  State  constitutions  or 
to  make  them  yield  to  the  general  government  and  to  treaties  made 
by  their  authority.  A  treaty  cannot  be  the  sujyreirie  law  of  tlie  land, 
that  is,  of  all  the  United  States,  if  any  act  of  a  State  legislature  can 
stand  in  its  way.  If  the  constitution  of  a  State  (which  is  the  fun- 
damental law  of  the  State  and  paramount  to  its  legislature)  must 
give  way  to  a  treaty  and  fall  before  it,  can  it  be  questioned  whether 
the  less  power,  an  act  of  the  State  legislature,  must  not  be  pros- 
trate ?  It  is  the  declared  will  of  the  people  of  the  United  States 
that  every  treaty  made  by  the  authority  of  the  United  States  shall 
be  superior  to  the  constitution  and  laws  of  any  individual  State, 
and  their  will  alone  is  to  decide.  If  a  law  of  a  State  contrary  to  a 
treaty  is  not  void,  but  voidable  only,  by  a  repeal  or  nullification  by 
a  State  legislature,  this  certain  consequence  follows,  — that  the  will 
of  a  small  part  of  the  United  States  may  control  or  defeat  the  will 
■  of  the  whole."     Ware  v.  Hylton,  3  Dall.  199. 

I     It  will  be  observed  that  the  treaty-making  clause  is  retroa,ctijire 

(  as  well  as  prospectiv^e.     The  treaty  in  question,  in  Ware  v.  Hylton, 

was  the  British  treaty  of  1783,  which   terminated  the  war  of  the 

American  Revolution.     It  was  made  w^hile  the  Articles  of  Confed- 

eration  subsisted.     The  Constitution,  when  adopted,  applied  alike  to 

(^treaties  "made  and  to  be  made." 

We  have  quoted  from  the  opinion  of  jMr.  Justice  Chase  in  that 
case,  not  because  we  concur  in  every  thing  said  in  the  extract,  but 
because  it  shows  the  views  of  a  powerful  legal  mind  at  that  early 
period,  when  the  debates  in  the  convention  which  framed  the  Con- 
stitution must  have  been  fresh  in  the  memory  of  the  leading  jurists 
of  the  country. 

In  Chirac  v.  Chirac,  2  Wheat.  259,  it  was  held  by  this  court  that 

a  treaty  with  France  gave  to  her  citizens  the  right  to  purchase  and 

hold  land  in  the  United  States,  removed  the  incapacity  of  alienage 

and  placed  them  in  precisely  the  same  situation  as  if  they  had  been 

citizens  of  this  country.     The  State  law  was   hardly  adverted   to, 

and  seems  not  to  have  been  considered  a  factor  of  any  importance  in 

this  view  of  the  case.     The  same  doctrine  was  reaffirmed  touching 

this  treaty  in  Carneal  v.  Banks,  10  Wheat.  181,  189,  and  with  respect 

X     /  to  the  British  treaty  of  1794,  in  Hughes  v.  Edwards,  9  Wheat.  489.    A 

^j    yj  _  treaty  stipulation  may  be  eifectual  to  protect  the  land  of  an  alien  fi-oil, 

*nJC-^     forfeiture  by  escheat  under  tne  iaws_otji_Statg..     Orr  v.  Hodgeson, 

'  i  Wheat.  4dc}.     By  "the  British  treaty  of  1794,   "all  impediment  of 

alienage  was  absolutely  levelled  with  the  ground  despite  the  laws  of 

.;the  States.     It  is  the  direct  constitutional   question    in   its   fullest 

conditions.     Yet  the  Supreme  Court  held  that  the  stimulation   was, 

jNvithin  the  constitutional  powers  of  the  Union.    Fairfax's  Devisees  v. 

Hunter's  Lessee,  7  Cranch,  627  ;  see  Ware  v.  Hylton,  3  Dall.  242." 


1 


CHAP.  II.] 


HAUENSTEIN    V.   LYNHAM. 


75 


8  Op.  Att'ys-Gen.  417.  Mr.  Calhoun,  after  laying  down  certain 
exceptions  and  qualitications  which  do  not  affect  this  case  says: 
"  Within  these  limits  all  questions  which  may  arise  between  us  and 
othe£j2pwiisjrbeJhe^^  what   itlnay7Tan_withi^^ 

treaty-making   power  and  may  Tje^adjustednjy  itT'     TreaFToiT  thef 
"Const,  and  Gov.  of  the  uTS.  204. 

If  the  national  government  has  not  the  power  to  do  what  is  done 
by  such  treaties,  it  cannot  be  done  at  all,  for_Mie  States  are  expressly 
t'orbidden__io_Jienter  into  any  treaty,  alliance,  or  confederation." 
Const.,  art.  1,  sec.  10. 

TVirmst^_always  be  borne  in_mind  that  the_Constitution,  lawSj_and 
Jreaties_ofjthaJIni^ted_States jxe_a^much  a  part  of  the  law  of  every 
~St,ai;e   as  its   own    local   laws  and  constitution"     Tlns~is  a  Imida- 


mental  principle  in_our  systemjjf  complgx  nationaljjolity.  See  also 
Shanks  v.  Dupont,  3  Pet.  242;  Foster  &"Elam  v.  NeTIsonr2  id.  253; 
The  Cherokee  Tobacco,  11  Wall.  616;  Mr.  Pinkney's  Speech,  3 
Elliots'  Constitutional  Debates,  231 ;  The  People,  ex  rel.  v.  Gerke  &, 
Clark,  5  Cal.  381. 

We  have  no  doubt  that  this  treaty  is  within  the  treaty-making 
power  conferred  by  the  Constitution.  And  it  is  our  duty  to  give  it 
full  effect.  We  forbear  to  pursue  the  topic  further.  In  the  able 
argument  before  us,  it  was  insisted  upon  one  side,  and  not  denied 
on  the  other,  that,  if  the  treaty  applies,  its  efficacy  must  necessarily 
be  complete.  The  only  point  of  contention  was  one  of  construction. 
There  are  doubtless  limitations  of  this  power  as  there  are  of  all 
others  arising  under  such  instruments;  but  this  is  not  the  proper 
occasion  to  consider  the  subject.  It  is  not  the  habit  of  this  court, 
in  dealing  with  constitutional  questions,  to  go  beyond  the  limits  of 
what  is  required  by  the  exigencies  of  the  case  in  hand.  Wliat  we 
have  said  is  sufficient  for  the  purposes  of  this  opinion. 

The  judgment  of  the  Court  of  Appeals  of  Virginia,  so  far  as  it 
concerns  the  claim  of  the  plaintiffs  in  error,  will  be  reversed,  and 
the  cause  remanded  for  further  proceedings  in  conformity  with  this 
opinion;  and  it  is  So  ordered.^ 

1  As  to  the  effect  of  treaties  upon  the  special  provisions  of  inheritance  laws  with 
respect  to  aliens,  see  Rixuer's  Succession,  48  La.  Ann.  5.52  ;  Opelc.  Shoup,  100  Iowa, 
407  ;  Wunderle  ?'.  Wunderle,  144  111.  40.  As  to  the  treaty  making  power  of  the  United 
States  in  such  cases,  see  People  v.  Gerke,  5  Cal.  381,  infra,  p.  583,  and  note. 


76      RELATION  OF  STATES  TO  FEDERAL  GOVERNMENT.   [CHAP.  IL 

DAVIS  V.  ELMIRA  SAVINGS   BANK. 

r 

161  United  States,  275.     1895. 

In  March,  1893,  the  Elmira  National  Bank,  a  banking  association 
organized  under  the  laws  of  the  United  States,  and  doing  business  in 
the  State  of  New  York,  suspended  payment,  and  the  Comptroller  of 
the  Currency  of  the  United  States  appointed  Charles  Davis,  plaintiff 
in  error,  the  receiver  thereof.  The  Elmira  Savings  Bank,  which  was 
incorporated  under  the  laws  of  the  State  of  New  York,  from  Novem- 
ber, 1890,  kept  a  deposit  account  with  the  Elmira  National  Bank, 
and  at  the  time  of  the  appointment  of  the  receiver  of  the  latter  cor- 
poration there  was  to  the  credit  of  this  account  of  the  Savings  Bank 
the  sum  of  $42,704.67.  The  opening  of  the  deposit  account  by  the 
Savings  Bank  was  sanctioned  by  the  general  banking  laws  of  the 
State  of  New  York. 

In  the  process  of  liquidating  the  affairs  and  realizing  the  assets  of 
the  National  Bank  all  its  circulating  notes  were  provided  for,  and  the 
receiver  had  on  hand  in  cash  for  distribution  among  its  creditors  a 
sum  exceeding  the  amount  due  as  aforesaid  to  the  Savings  Bank. 
Thereupon  the  latter  demanded  of  the  receiver  payment  of  the  sum 
to  the  credit  of  its  deposit  account  in  preference  to  the  other  credi- 
tors of  the  National  Bank,  basing  its  demand  on  a  provision  of  the 
general  banking  law  of  the  State  of  New  York,  which  [gives  savings 
banks  a  preference  in  the  distribution  of  the  assets  of  any  insolvent 
bank,  to  the  extent  of  its  deposits,  so  far  as  such  deposits  are 
authorized].  . 

The  receiver,  under  the  authority  of  the  Comptroller  of  the  Cur- 
rency of  the  United  States,  declined  to  accede  to  this  demand,  predi- 
cating his  refusal  on  the  provisions  of  sections  5236  and  5242  of  the 
Revised  Statutes  of  the  United  States,  which  [direct  ratable  distribu- 
tion of  the  assets  of  an  insolvent  National  Bank  among  all  creditors]. 

In  consequence  of  this  refusal  the  Savings  Bank  brought  an  action 
in  the  Supreme  Court  of  the  State  of  New  York  to  enforce  the  pay- 
ment by  preference,  which  action  was  resisted  by  the  receiver. 
Ultimately  the  case  was  taken  to  the  Court  of  Appeals  of  the  State 
of  New  York,  where  the  claim  of  preference,  asserted  by  the  Savings 
Bank,  was  maintained.  The  case  is  reported  in  142  N.  Y.  590.  To 
that  judgment  the  present  writ  of  error  is  prosecuted. 

IMk.  Justice  White,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

NationaJ  banks  are  instrumentalities  of  the  Federal  government, 

created  ior  a  public  purpose,  and  as  such  necessarily  subject  to^the 

paramoivnraHItKonty^of  the  United    States.     It  follows   that  an  af- 

1.  tempt,  by  a  State,  to  define  their  Uuties  or  control  the  conduct  of 


CHAP.  II.]  DAVIS   V.    ELMIRA    SAVINGS   BANK.  77 

their  affairs  is  absolutely  void^  w}ierez£l__such^ttempted  exercise  of  j 
authoiTty  expressly  conflicts  wj.th  the  laws  of  the_United  States,  and  ' 
'^iFher  frustrates  the  purpose  of  the  national  legislation  or  impairs 
the  efficiency  of  these  agencies  of  the  Federal  government  to  dis- 
charge the  duties,  for  the  performance  of  which  fhey  were  "created. 
These  principles  are  axiomatic,  and  are  sanctioned  by  the  repeated 
adjudications  of  this  court. 

The  question  which  the  record  presents  is,  does  the  law  of  the 
State  of  Kew  York  on  which  the  Savings  Bank  relies  conflict  with 
the  law  of  the  United  States  upon  which  the  Comptroller  of  the 
Currency  rests  to  sustain  his  refusal  ?  If  there  be  no  conflict,  the 
two  laws  can  coexist  and  be  harmoniously  enforced,  but  if  the  con- 
flict arises,  the  law  of  ISTew  York  is  from  the  nature  of  things  in- 
operative and  void  as  against  the  dominant  authority  of  the  Federal 
statute.  In  examining  the  question  it  is  well  to  put  in  juxtaposition 
a  summary  statement  of  the  Federal  and  State  statutes.  The  first! 
directs  the  Comptroller  "  from  time  to  time,  after  full  provision  has 
been  made  for  the  refunding  to  the  United  States  of  any  deficiency 
in  redeeming  the  notes  of  such  association,  ...  to  make  a  ratable 
dividend  of  the  money  paid  over  to  him  ...  on  all  such  claims 
as  may  have  been  proved."  The  second,  the  State  law,  directs 
*' the  trustee,  assignee  or  receiver"  of  "any  bank  or  trust  company 
which  shall  become  insolvent  "  to  apply  the  assets  received  by  him, 
"in  the  first  place  to  the  payment  in  full  of  any  sum  or  sums  of 
money  deposited  therewith  by  any  savings  bank,  but  not  to  an 
amount  exceeding  that  authorized"  by  law. 

It  is  clear  that  these  two  statutes  cover  exactly  the  same  subject- 
matter.  Both  relate  to  insolvent  banks  ;  both  ordain  that  the  right 
of  preference  on  the  one  side  and  the  duty  of  ratable  distribution  on 
the  other  shall  only  result  from  insolvency ;  both  cover  the  assets  of 
such  banks  coming,  after  insolvency,  into  the  hands  of  the  officer 
or  person  authorized  to  administer  them.  It  is  equally  certain  that 
both  statutes  relate  to  the  same  duty  on  the  part  of  the  officer  of  the 
insolvent  bank  ;  the  one  directs  the  representative  to  make  a  ratable 
distribution  ;  the  other  requires,  if  necessary,  the  application  of  the 
entire  assets  to  payment  in  full,  by  preference  and  priority  over  all 
others  of  a  particular  and  selected  class  of  creditors  therein  named. 
We  have,  therefore,  on  the  one  hand,  tlie  statute  of  the  United 
States,  directing  that  the  assets  of  an  insolvent  national  bank  shall 
be  distributed  by  the  Comptroller  of  the  Currency  in  the  manner 
therein  pointed  out,  that  is,  ratably  among  the  creditors.  We  have 
on  the  other  hand,  the  statute  of  the  State  of  New  York  giving  a 
contrary  command.  To  hold  that  the  State  statute  is  operative  is  to 
decide  that  it  overrides  the  plain  text  of  the  act  of  Congress.  This 
results,  not  only  from  the  fact  that  the  two  statutes,  as  we  have  said, 
cover  the  same  subject-matter,  and  relate  to  the  same  duty,  but  also 
because  there  is  an  absolute  repugnancy  betwepn  their  provisions, 


>^ 


78 


RELATION  OF  STATES  TO  FEDERAL  GOVERNMENT.   [CHAP.  II. 


^that  is,  between  the  rataWe_Jistribution,  commanded  bx.Congress, 
and  the  greferentialjiistributioji  directed  by  the  law  of  the  State  of 
New  York. 

The  conflict  between  the  spirit  and  purpose  of  the  two  statutes  is 
as  pronounced  as  that  which  exists  between  their  unambiguous  letter. 
It  cannot  be  doubted  that  one  o£  the  objects  of  the  national  ban]^ 
system  was  to  seclire^ln'tlie  "event  of  insolvency,  a  just  and  ecLual 
^stribution ^f  the  assets  of  national,  banks  among_aIl  unseciire^ 
creditors,  jnd  to  prevent_such  banks  from  creating  preferences  in 
"coiTte'inpIation  of  J^nsolvency.  This  public  aim  in  favor  of  all  the 
"cTtizens  of  every  State  of  the  Union  is  manifested  by  the  entire  con- 
text of  the  national  bank  act. 

Judgment  reversed  and  case  remanded  to  the  Court  of  Appeals  of 
the  State  of  Ne^o  York  with  instructions  to  remit  the  cause  to 
the  court  in  which  it  originated  with  directions  to  dismiss  the 
action. 


SECT.  I.]  TAYLOR   V.   PLACE.  79 


CHAPTER  III.  ^;>^ 

DEPARTMENTS  OF  GOVERNMENT. 


Section  I.  —  The  Legislative  Department. 


^ 


K 


TAYLOR  V.  PLAGE. 
4  Rhode  Island,  324.     1856. 


Ames,  C.  J.  The  substance  of  this  case  is,  that  after  the  plaintiffs 
had,  in  the  regular  course  of  judicial  proceeding  in  the  Court  of  Com- 
mon Pleas  for  the  County  of  Providence,  obtained  a  verdict  against 
the  defendants  for  a  sum  sufficient  to  pay  their  first  judgment  against 
the  Oneco  Manufacturing  Company,  and  within  the  amount  ascer- 
tained to  be  in  the  hands  of  the  defendants  by  their  affidavits  as 
garnishees,  the  General  Assembly  interfered  by  their  vote ;  ordered 
the  judgments  in  the  former  suits  to  be  opened  for  the  purpose  of 
allowing,  and  allowed  the  defendants  to  make  new  affidavits  as  gar- 
nishees therein  with  effect,  on  the  ground  that  the  old  ones  were  in- 
correctly made  through  accident  or  mistake  ;  and  set  aside  the  verdict 
in  this  cause,  and  granted  a  new  trial  therein,  in  order  that  the  gar- 
nishees might  avail  themselves  of  their  new  affidavits  upon  the  new 
trial  thus  granted  to  them.  By  force  of  this  vote  of  the  Assembly,  the 
verdict  of  the  plaintiffs  was  set  aside ;  a  new  trial  of  this  cause  was 
had  by  the  defendants ;  new  affidavits  were  filed  by  them,  exonerat- 
ing themselves  from  the  liability  which  they  had  incurred  by  the 
old  ones  ;  and  the  consequence  has  been,  that  the  same  court  under 
whose  direction,  and  according  to  law,  a  verdict  in  this  cause  was 
obtained  by  the  plaintiffs,  has  been  obliged  to  render  a  judgment 
therein  for  the  defendants. 

It  is  hardly  necessary,  perhaps,  after  stating  the  purpose  and  effect 
of  this  vote,  to  use  arguments  or  to  cite  authorities  to  show  that  thus 
to  set  aside  a  verdict  and  grant  a  new  trial  in  a  suit  at  law,  which 
the  frame  of  statutes,  or  even  binding  rules  of  practice  place  beyond 
the  power  of  the  court  in  which  the  cause  is  pending,  or  of  any  court 
of  law,  is  the  exercise  of  judicial  power ;  that  to  deprive  one  party 


^  0. 


•*y^'K. 


;< 


X 


80  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

to  such  a  suit  of  an  advantage  that  he  has  obtained  over  the  other 
from  the  mistake  of  the  latter,  or  from  an  accident  that  has  befallen 
him,  is  the  exercise  of  judicial  power;  and  that,  finally,  as  the  means 
to  such  relief,  to  open  judgments  or  decrees  obtained  in  a  court,  and 
to  allow  the  substitution  of  a  new,  or  the  amendment  of  an  old  sworn 
answer,  either  in  proceedings  at  law  or  in  equity,  for  the  purpose 
and  with  the  effect  of  reversing  the  relative  condition  of  the  parties 
to  a  pending  suit,  dependent  upon  the  effect  of  that  answer,  is  an 
exercise  of  judicial  power.  In  the  cause  before  us,  all  this  has  been 
done  by  a  vote  of  the  General  Assembly ;  and,  in  the  analysis  of  this 
vote  just  given,  we  have  described,  most  aptly,  the  substance  of  a 
decree  of  a  court  of  chanceryT'wlien  exercising,  in  a  case  of  accident 
orlnistake,  and  atjber^golemn  hearing,  Its^high  judicial  functions  over 
proceedings  at  law.  The  difference  between  the  decree,  as  iFwouTcT 
be  m  suclTarcaseTif  a  proper  one  for  relief,  and  the  vote  in  question, 
is  not  in  favor  of  the  latter ;  for,  whereas  the  decree  could  act  only 
upon  the  parties  to  the  suit,  the  vote  directs  and  controls  the  action 
of  the  legal  tribunal  itself. 

^  In  some' cases,  it  is  difficult  to  draw  and  apply  the  precise  line 
separating  the  different  powers  of  government  which,  under  our 
political  systems,  Federal  and  State,  are,  without  exception,  carefully 
distributed  between  the  legislative,  the  executive,  and  the  judicial 
departments.  To  some  extent,  and  in  some  sense,  each  of  the  powers 
appropriated  to  different  departmentsJn_th^above  dj^ibjrt^on^niust 
be  exercised  by^  every  other  department  of  the  government^  in  order 

^^t1re;^oper  performance  of  its  duty.  As  illustrated  by  Mr.  JUsTice' 
McLean,  in  giving  the  judgmentrof  the  supreme  court  of  the  United 
States,  in  the  case  of  Watkins  v.  Holman  et  al.  16  Pet.  60,  61  —  "  The 
executive,  in  acting  upon  claims  for  services  rendered,  may  be  said 
to  exercise,  if  not  in  form,  in  substance,  judicial  power.  And  so 
a  court,  in  the  use  of  a  discretion  essential  to  its  existence,  by  the 
adoption  of  rules  or  otherwise,  may  be  said  to  legislate.  A  legis- 
lature, too,  in  providing  for  the  payment  of  a  claim,  exercises  a 
power  in  its  nature  judicial ;  but  this  is  coupled  with  the  paramount 
and  remedial  power."  In  an  early  case,  which  we  shall  have  occasion 
hereafter  to  use  for  another  purpose,  the  question  came  before  the 
courts  of  the  United  States,  under  the  clause  of  the  Constitution  of 
the  United  States  distributing  the  different  powers  of  the  Federal 
government  amongst  its  different  departments,  whether  a  power, 
lodged,  by  an  act  of  Congress,  in  the  Circuit  Courts  of  the  United 
States,  to  inquire  into  and  to  lake  evidence  of  the  claims  of  invalid 
pensioners^  and  to  transmit  the  result  of  Iheirinquiries  to_llie_secre- 
tary  of  war,  for  his  action  and  that  of  Congress  thereoii,  wsls  judicial 
power,  and  so  the^'exercise  of  it  imperative  upon  the  circuit  judges. 
The  unanimous  opinion  of  the  Circuit  Court  for  the  District  of  Kew 
York,  then  consisting  of  Jay,  chief  justice,  Cushing,  justice,  and 
Duane,  district  judge ;  of  the  Circuit  Court  for  the  District  of  Penn- 


SECT.  I.]  TAYLOR   V,    PLACE.        ^ '^X<^-t^<^*-u..-*t^  8 J^ 

sylvania,  then  consisting  of  Wilson  and  Blair,  justices,  and  of  Peters, 
district  judge;  and  of  the  Circuit  Court  for  the  District  of  North 
Carolina,  then  consisting  of  Iredell,  justice,  and  of  Sitgreaves,  dis- 
trict justice;  —  was,  that  the  power  thus  vested  \v;|isjMi]ldicial,  and| 
that  consequently  they  were  not  bound  to  exercjse  it.  The  reasons  , 
given  by  them  were,  in  substance,  that  the  act  of  Congress  did  not  J 
contemplate  this  power  as  judicial,  inasmuch  as  it  subjected  the  ^ 
decisions  of  the  courts,  in  the  matter  to  which  it  related,  to  the  con-  ; 
sideration  and  suspension  of  the  secretary  of  war,  and  again  to 
the  revision  of  Congress  ;  whereas,  by  the  Constitution^jieither_the_ 
secretary  of  war,  nor  any  other  executTve  officer,  nor  even  the  legisla- 
Ture,  were  authorized  to  sit,  as  a  court  of  errors,  on  the  judicial  acts 
^opinions  of  the  courts  of  the  United  States.  The  judges  compos- 
ing the  Circuit  Court  of  New  York,  however,  consented,  on  account  of 
the  benevolence  which  had  dictated  the  passage  of  the  pension  act  in 
question,  personally  to  execute  the  duties  imposed  upon  them  in  the 
character  of  comjnissioners  appointed  by  official  instead  of  personal 
descriptions ;  deeming  themselves  at  liberty,  as  individuals,  to  accept 
or  decline  the  office  thus  tendered  to  them.  See  the  opinions  in  the 
note  illustrating  Hayburn's  Case,  2  Dallas,  410,  411,  412,  and  in  1 
Curtis's  Decis.  Sup.  Ct,  U.  S.  9,  10,  and  11.  In  Watkins  v.  Holman 
et  al.  before  quoted,  the  question  arose  before  the  Supreme  Court  of 
the  United  States,  under  the  constitution  of  Alabama,  containing  a 
like  distribution  of  powers  with  our  own,  whether  an  act  of  the  legis- 
lature of  that  state,  authorizing  an  administratrix  residing  in  another 
State,  to  sell  and  convey,  by  certain  attorneys  named  in  the  act,  the 
real  estate  of  her  intestate  husband  in  Alabama,  for  the  payment  of 
his  debts,  her  attorneys  giving  bond  with  sureties  for  the  faithful 
payment  of  the  proceeds  of  sale  to  the  administratrix,  '•'  to  be  appro- 
priated to  the  payment  of  the  debts  of  the  deceased,"  was  o.  judicial 
act,  and  so  within  the  inhibition  of  the  constitution  of  Alabama. 
The  court  held  the  act  to  be  valid,  as  the  exercise,  not  oi  judicial,  but 
of  legislative  power  ;  the  act  providing  a  special  remedy,  merely,  for 
a  case  which,  on  account  of  its  circumstances,  though  within  the 
spirit,  was  not  within  the  letter  of  the  general  statute  of  Alabama, 
which  directed  the  mode  in  which  the  real  estate  of  a  deceased  debtor 
should  be  sold  and  applied  to  the  payment  of  his  debts.  Again,  in 
the  late  case  of  United  States  v.  Ferreira,  13  How.  40,  48,  the 
same  court  held  that  an  act  of  Congress,  empowering  the  district 
jiidge  of  Florida,  under  the  treaty  with  Spain  of  1819,  commonly 
called  the  Florida  treaty,  to  examine  and  adjudge  claims  for  in- 
juries made  by  the  Spanish  inhabitants  of  Florida,  provided  for  by 
a  clause  in  that  treaty,  and  to  report  his  decisions,  if  favorable  to  the 
claimants,  with  the  evidence,  to  the  secretary  of  the  treasury,  for  h'ls 
discretionary  action  thereon,  did  not  confer  upon  the  district  court  of 
Y\ox\^2i  judicial  power,  in  the  sense  of  the  Constitution  of  the  United 
States,  rh  that  matter ;  and  hence,  that  no  appeal  from  the  award  of 

6 


82  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

the  judge,  thus  acting  merely  as  a  commissioner,  could  be  brought  to 
the  Supreme  Court  of  the  United  States.  The  court  followed  precisely 
the  line  of  reasoning  which  must  have  been  adopted  by  the  judges 
in  Hayburn's  Case,  in  1792,  as  illustrated  by  the  opinions  given  in  the 
note  to  that  case,  which  the  court  recite  at  large.  In  the  opinion  of 
the  court,  delivered  by  the  present  venerable  chief  justice,  he  says  : 
"  The  powers  conferred  by  these  acts  of  Congress  upon  the  judge,  as 
well  as  the  secretary,  are,  it  is  true,  judicial  in  their  nature  ;  for 
judgment  and  discretion  must  be  exercised  by  both  of  them.  But  it 
is  nothing  more  than  the  power  ordinarily  given  by  law  to  a  commis- 
sioner appointed  to  adjust  claims  to  lands  or  money,  under  a  treaty ; 
or  special  powers  to  inquire  into  or  decide  any  other  particular  class 
of  controversies  in  which  the  public  or  individuals  may  be  concerned. 
A  power  of  this  description  may  constitutionally  be  conferred  on 
a  secretary  as  well  as  a  commissioner,  but  is  not  judicial  in  either 
case,  in  the  sense  in  which  judicial  power  is  granted  by  the  Constitu- 
tion to  the  courts  of  the  United  States ;  "  and  see  American  Ins.  Co. 
V.  Canter,  1  Pet.  511 ;  Benner  v.  Porter,  9  How.  235 ;  United  States 
e;.  Ritchie,  17  How.  533,  534. 

On  the  other  hand,  it  may  safely  be  said,  that  to  hear  and  decide 
adversary  suits  at  law  and  in  equity,  with  the  power  of  rendering 
judgments  and  entering  up  decrees  according  to  the  decision,  to  be 
executed  by  the  process  and  power  of  the  tribunal  deciding,  or  of 
another  tribunal  acting  under  its  orders  and  according  to  its  direction, 
is  the  exercise  of  judicial  power,  in  the  constitutional  sense  ;  and  that 
it  is  so,  whether  the  decision  be  final,  or  subject  to  reversal  on  error 
or  appeal.  It  is  precisely  thus  that  the  great  exemplar  of  constitu- 
tional law,  the  Constitution  of  the  United  States,  defines  this  power  ; 
for,  after  vesting,  by  the  first  section  of  its  third  article,  "  the  judicial 
power  of  the  United  States,"  in  "  one  supreme  court,  and  in  such  in- 
ferior courts  as  Congress  may,  from  time  to  time,  order  and  estab- 
lish "  ;  and  after,  in  the  same  section,  fixing  the  tenure  and  mode  of 
compensating  the  judges  of  the  courts  of  the  United  States ;  it  pro- 
ceeds, in  the  second  section  of  the  same  article,  to  define  this  power, 
by  stating  the  cases  and  controversies  in  law  and  equity,  and  of 
admiralty  and  maritime  jurisdiction,  to  which,  from  the  nature  of 
the  questions  involved  in  them,  or  of  the  principles  of  decision  to  be 
applied  to  them,  or  from  the  character  or  citizenship  of  the  parties 
to  them,  or  to  be  affected  by  them,  this  power,  whether  original  or 
appellate,  shall  extend.  In  Osborn  v.  The  Bank  of  the  United 
States,  9  Wheat.  319,  Chief  Justice  Marshall,  in  delivering  the 
opinion  of  the  court,  after  saying  that  the  second  article  of  the  Con- 
stitution vests  the  whole  executive  power  in  the  President,  and  that  the 
third  article,  among  other  things,  declares,  "that  the  judicial  power 
shall  extend  to  all  cases  in  law  and  equity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made,  or  which 


I 


SECT.  I.]  TAYLOR   V.    PLACE.  83 

shall  ba  made  under  their  authority,"  thus  speaks  of  the  effect  and 
extent  of  the  latter  :  "  This  clause  enables  the  judicial  department  to 
receive  jurisdiction  to  the  full  extent  of  the  Constitution,  laws,  and 
treaties  of  the  United  States,  when  any  question  respecting  them  shall 
assume  such  a  form  that  the  judicial  power  is  capable  of  acting  upon  it. 
That  power  is  capable  of  acting  only  when  the  subject  is  submitted  to 
it  by  a  party  who  asserts  his  rights  in  the  form  i^rescribed  by  law. 
It  then  becomes  a  case ;  and  the  Constitution  declares  that  the 
judicial  power  shall  extend  to  all  cases  arising  under  the  Constitu-^ 
tion,  laws,  and  treaties  of  the  United  States."  The  judicial  power 
is  exercised   in_the  decisioii   of  cases;    the_legislative,  in  mjjcing^ 

gerTeral  regulations,  by  the  enactmeTit  oMaws^ Tlie fatter  actsj'rom 

considerations  of  public  policy ;  _the  former  is  guided  by^the^jlead- 
ings  and  evidence  in  the  case.     Per  Mr.  Justice  McLean.     State  of 
PennsylvTinia  v.  Wheelin^~aiKl  Belmont  Bridge  Co.,  18  How.  440. 
Indeed,  laws  and  courts  have  their  origin  in  the  necessity  of  rules  and 
means  to  enforce  them,  to  be  applied  to  cases  and  controversies  within 
their  jurisdiction ;  and  our  whole  idea  of  judicial  power  is,  the  power  of 
the  lat-ter  to  apply  the  former  to  the  decision  of  those  cases  and  con- 
troversies.     To  affect   to_decide,  or  to  control   tlie  decision,  of  a''^ 
case  or  controversy  which_iias  Jid-SBH  at  Jaw  or  in  e(|uity,  pFToTnter^X^ 
"lere  witlT  its  progress,  or^  to^  alter  its   condition  iu  aiix  wa_yi_is__to_l_^ 
"assume  tTie  exercise  of  judicial  power;  and  that,  too,  althoiigh_the '  • 
subj'ecForthe  case  or  controversy  might  have  been  such  in  its  na£ure,  ■ 
"EHai  fheTegislature  could  have  acted  upon  it,  had  it  seen  fit,  without;^ 
the  aid  of  the,  courts.  ' 

Such  a  jurisdiction  was  familiarly  exercised  by  the  General  Assem- 
bly, during  the  Colonial  period  of  our  history,  and  after  we  became  a 
State,  down  to  the  adoption  of  our  Constitution  in  1843,  and  even, 
though  more  unfrequently,  since.  That  the  Assembly  may  not  have 
pursued  the  principles,  or  adopted  the  precise  mode  of  relief  in  such 
a  court;  that  it  acted  directly  upon  the  court,  instead  of  upon  the 
parties  plaintiff  proceeding  in  it,  might  have  arisen  either  from  for- 
getfulness  of  the  principles  and  practice  of  a  court  of  chancery,  or 
from  that  forceful  disposition  which  a  departed  statesman  deemed 
would  naturally  accompany  a  legislative  body,  vested  with,  or  assuming 
to  exercise,  judicial  power.  Alexander  Hamilton,  Federalist,  No.  83, 
page  325,  6th  edition. 

Has  the  General  Assembly  of  this  State,  under  the  constitution,  the 
right  to  exercise  judicial  power?  or,  is  the  exercise  of  such  power 
prohibited  to  it  by  the  constitution  ? 

If  the  law-making  department  in  our  government,  has  also  the 
power  to  interpret  and  to  enforce  their  interpretation  of  the  laws, 
either  acting  wholly  by  itself,  or  by  directing  and  controlling,  as  a 
superior  tribunal,  all  other  tribunals  of  the  State,  every  friend  to 


84  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

a  settled  and  well-ordered  administration  of  justice  amongst  us  — 
every  lover  of  free  government  itself  —  has,  indeed,  cause  to  mourn. 
It  was  the  celebrated  maxim  of  Montesquieu,  that  "there  can  be  no 
liberty  where  the  legislative  and  executive  powers  are  united  in  the 
same  person  or  body  of  magistrates  ;"  or,  "if  the  power  of  judging 
be  not  separated  from  the  legislative  and  executive  powers."  For 
the  fii-st  part  of  this  maxim,  the  reason,  tersely  given,  is,  "  because 
apprehensions  may  arise  lest  the  same  monarch  or  senate  should 
enact  tyrannical  laws,  to  execute  them  in  a  tyrannical  manner;"  and 
for  the  latter  portion  of  the  maxim,  "  if  the  power  to  judge  be  joined 
with  the  power  to  legislate,  the  life  and  liberty  of  the  subject 
would  be  exposed  to  arbitrary  control,  for  the  judge  woidd  then  be 
the  legislator;  if,  to  the  executive  power,  the  judge  might  behave 
with  all  the  violence  of  an  oppressor."  If  this  distinguished  politi- 
cal critic  derived  this  maxim  from  the  British  Constitution,  "  as," 
to  use  his  own  expression,  "  the  mirror  of  political  liberty  "  in  his 
day,  how  are  we  to  regard  it,  illustrated  and  enforced,  as  it  has  been, 
in  the  Federal  Constitution,  and  in  every  State  constitution  of  these 
United  States,  whether  framed  and  adopted  by  those  who  sat  by  the 
cradle,  or  by  those  who  have  ministered  to  the  generous  manhood  of 
our  freedom. 

The  question  before  us  is,  substantially,  whether,  when  in  1843, 
the  people  of  this  State  adopted  a  constitution,  they  attended  to  this 
truth,  and  heeded  this  warning  so  long  before  given,  and  constantly 
standing  before  them  ;  or  whether,  leaving  the  General  Assembly  in 
the  possession  of  full  judicial  power,  as  well  as  of  legislative,  and 
nearly  of  executive,  this  constitution  —  declared  in  the  first  para- 
graph of  \i?,  first  article  to  be  of  paramount  obligation  in  all  legisla- 
tive, as  well  as  judicial  and  executive  proceedings  —  was  set  up  by 
them  as  a  mere  "  parchment  barrier  "  against  the  enterprising  ambi- 
tion of  the  legislative  department  of  the  government,  which  as 
a  court,  could  expound  away  every  restriction  imposed  upon  it  as  a 
legislature  f 

Tliis  can  properly  be  ascertained  only  by  attention  to  the  clauses 
of  the  constitution  bearing  upon  this  subject;  by  taking  into  view 
their  origin  and  received  construction  when  adopted,  if  they  had  any ; 
and  by  the  application  to  them  of  the  usual  rules  of  interpretation. 

These  clauses  are,  — 

First.  Section  1,  article  4;  which  declares,  that  "this  constitu- 
tion shall  be  the  supreme  law  of  the  State,  and  any  law  inconsistent 
therewith  shall  be  void." 

Hecond.  Section  1,  article  3;  which  provides,  that  "the  powers  of 
the  government  shall  be  distributed  into  three  departments  ;  the 
legislative,  executive,  and  judicial." 

Third.  Section  2,  article  4 ;  which  vests  "the  legislative  power, 
under  this  constitution,'"    "in  two  houses,  the  one  to  be  called  the 


SECT.  1.]  'TAYLOR   V.    PLACE.  85 

Senate,   and   the   other   the   House   of   Eepresentatives ;    and   both 
together,  the  General  Assembly." 

Fourth.  Section  1,  article  7;  which  vests  "the  chief  executive 
power  of  this  State  "  "  in  a  governor,  who,  together  with  a  lieutenant 
governor,  shall  be  annually  elected  by  the  people." 

Fifth.  Section  1,  article  10 ;  which  is  in  these  words  :  "  The  judi- 
cial power  of  this  State  shall  be  vested  in  one  supreme  court,  and  in 
such  inferior  courts  as  the  General  Assembly  may,  from  time  to  time, 
ordain  and  establish."  Also,  in  the  same  connection,  sections  4  and 
6  of  this  article,  declaring  in  substance,  that  the  judges  of  the 
supreme  court  "shall  be  elected  by  the  two  houses  in  grand  com- 
mittee;" that  "each  judge  shall  hold  his  office  until  his  place  be 
declared  vacant  by  a  resolution  of  the  General  Assembly  to  that  effect, 
which  resolution  shall  be  voted  for  by  a  majority  of  all  the  members 
elected  to  the  house  in  which  it  may  originate,  and  be  concurred  in 
by  the  same  majority  of  the  other  house ; "  and  which  declare  that  "  such 
resolution  shall  not  be  entertained  at  any  other  than  the  annual  ses- 
sion for  the  election  of  public  officers  ;  and,  in  default  of  the  passage 
thereof  at  said  session,  the  judge  shall  hold  his  place  as  is  herein 
provided ;  but  a  judge  of  any  court  shall  be  removed  from  office,  if, 
upon  impeachment,  he  shall  be  found  guilty  of  any  official  misde- 
meanor;" and  which  further  provide,  that  "the  judges  of  the 
supreme  court  shall  receive  a  compensation  for  their  services,  which 
shall  not  be  diminished  during  their  continuance  in  office."  Also, 
section  3,  article  14,  giving  to  the  supreme  court  established  by  the 
constitution,  the  jurisdiction  of  the  supreme  judicial  court,  existing 
at  the  adoption  of  the  constitution. 

Sixth.     And  in  special  reference  to  the  vote  before  us,  section  2, 

article  10,  "The  several  courts  shall  have  such  jurisdiction  as  may, 

from  time  to  time,  be  prescribed  by  law.     Chancery  powers  maij  be 

*  conferred  on  the  supreme  court,  but  on  no  other  court  to  any  greater 

extent  than  is  now  provided  by  law  ;  "  and 

Lastly.  Section  10,  article  4;  which  declares,  that  "the  general 
assembly  shall  continue  to  exercise  the  powers  they  have  heretofore 
exercised,  unless  prohibited  in  this  constitution.^^ 

We  have  purposely  arranged  these  clauses  of  the  constitution 
together,  because  they  all  relate  to  the  subject  we  are  considering, 
and  must  be  viewed  and  construed  in  their  bearings  upon  each  other, 
if  we  would  arrive  at  the  result,  —  their  true  meaning  as  a  whole. 
Looking  at  them  in  this  way,  no  one  at  all  familiar  with  such  sub- 
jects, and  the  established  principles  which  govern  them,  can,  we 
think,  fail  to  perceive  the  unity  of  design  and  purpose  manifested  in 
them.  The  powers  of  government,  which,  under  the  old  charter,  as 
under  all  the  old  Colonial  charters  in  this  country,  had  been  aggre- 
gated in  the  general  assembly,  as  it  was  called  in  most  of  them,  and 
in  ours,  and  in  the  general  court,  as  in  some,  were  distributed  among 
the  appropriate  departments,  that  thus  a  just  balance  of  power  might 


86  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

obtain  among  all ;   the  judiciary,  the  weakest,  and   therefore,   the 
safest  depository  of  such  power,  to  control  the  tendency  to  excess  of 
action  in  every  other  department,  and  especially  to  check,  encroach- 
ment upon  the  just  limits  of  its  own.     The  charter,  which  was  well 
enough  for  the  feeble  colony  of  doubly  persecuted  Independents  to 
whom  it  was  granted,  —  nay,  in  the  noble  purpose  of  "the  experi- 
ment "  which  it  announced,  a  boon  of  freedom  to  all,  —  had  been  out- 
grown by  the  necessities  of  the  crowded,  rich,  and  flourishing  State. 
The  immense  amount  of  property  here  in  action,  as  it  is  technically 
called,   complicated   with   contracts,    trust    settlements,  and   special 
equities,  required,  for  the  purposes  of  justice,  a  much  nicer  and  more 
SN'stematic  judicial  administration  than  the  comparative  poverty  and 
simplicity  of  the  sparse  population  of  Colonial  days.     In  the  mean- 
time, the  world-famous  maxim  of  Montesquieu  concerning  the  dis- 
tribution of  the  powers  of  government  in  order  to  freedom,  of  which 
we  have  spoken,  had  not  only  been  announced  by  that  great  political 
critic,  and  been  received  with  acclamation  by  the  enlightened  states- 
men of  Europe  and  our  own  country,  but,  what  is  of  more  importance  to 
the  matter  before  us,  had  been  acted  upo?i  in  every  one  of  the  numerous 
State  constitutions  of  the  United  States,  as  well  as  in  the  Federal  Con- 
stitution, for  the  avowed  purpose  of  securing,  and  as  necessary  to 
secure,  the  safety  of  the  life,  liberty,  and  property  of  the  citizens. 
Such  a  separation  of  the  powers  of  government,  between  its  different 
departments,  had,  when  our  constitution  was  adopted  in  1843,  and 
long   previous,    its    well-known   history,    and    its   long   and    firmly 
established  meaning  and   purpose ;    and  he  who  shuts  his   eyes  to 
these,  in  construing  the  comprehensive  and  apothegmatic  clauses  of 
such  an  instrument,  shuts  his  eyes  to  the  only  light  which  is  strong 
and  diffused  enough  to  enable  him  to  perceive  their  just  interpreta- 
tion.    It  is  quite  evident,  too,  that  this  distribution  of  powers  was,. 
in  our  constitution,  made  for  the  special  purpose  of  depriving  the 
general   assembly    of    their   long    exercised    judicial   power,   which, 
rightly  or  wrongly,  that  body  had  assumed  under  the  charter.     The 
executive  power  had  been  nominal,  merely,  under  the  charter ;  and 
the  constitution  extends  it  very  little.     No  jealousy  of  it,  or  of  its 
assumption  by  the  enterprising  and  all-absorbing  legislative  depart- 
ment of  the  government,  did  or  could  exist.     It  was  the  assumption 
/^f  judicial  power  by  the  General  Assembly,  which  must  have  been 
v^  specially  aimed  at  by  this  clause  of  distribution  ;  —  a  power  grown  to 
be  of   great   importance,    as   controlling   the    large    and   increasing 
property  amassed  in  the  State,  and  the  complicated  interests  in  it, 
which,  from  time  to  time,  required  to  be  judicially  ascertained  and 
adjusted.     As  a  groundwork  for  this  deprivation,  and  to  meet  the 
new   exigency,  the   judges  of  the   supreme  court,  who   under   the 
charter,  had,  like  all  other  officers,  been  of  annual  appointment  by 
the  general  assembh^  were  endowed  witli  a  firmer  tenure,  —  that  of 
good  behavior,  —  unless   removed    by   the   joint   vote,    in   separate 


SECT.  I.]  TAYLOR    V.   PLACE.  87 

houses,  of  a  majority  of  those  elected  to  the  general  assembly  in  each, 
passed  at  the  May  session,  when  the  members  came  to  the  Assembly 
fresh   from   the  j^eople,  and  before  legislative  factions  could  have 
time  to  be  formed,  or  to  grow  unscrupulous  in  their  action  against 
the  judges.     To  the  firmer  tenure  of  the  members  of  the  court,  was 
united,  by  the  constitution,  for  the  sole  purpose  of   making  them 
independent  of  the  legislative  body,  this  quality  in  their  compensa- 
tion ;    that  whatever  the  compensation  was,  upon  which   they  had 
consented  to  accept  office,  it  could  not  be  diminished  by  the  general 
assembly,  during  their  continuance  in  office.      Again  the  assembly 
xm^^ht,  increase  the  jurisdiction  of  this  court,  under  the  general  pro- 
vision,   "that   the  supreme   court   shall    have   such  jurisdiction   as 
may,  from  time  to  time,  be  prescribed  by  law ;''^  but  that  body  was 
forbidden  to  diminish  it.     As  we  have  seen,  this  court  was  endowed, 
by  the  constitutioti,  with  "the  same  jurisdiction  as  the  supreme  judicial 
court"  had,  at  the  time  of  the  adoption  of  the  constitution,  as  well 
as  with  jurisdiction  over  all  causes  pending  in,  or  which  might,  by 
existing  laws,  be  appealed  to  it.     In  the  same  direction,  and  for  the 
same  'purpose,  the  General  Assembly,  though  empowered  to  confer 
full  chancery  jioivers  upon  this  court,  were  expressly  prohibited  from 
conferring  them  upon  any  other.     The  plain  import  of  all  this,  when  \ 
compared,  as  it  should  be  to  understand  it,  with  the  state  of  tilings  it ' 
was  intended  to  remedy,  is,  that  the  people  of  the  State,  wJien  they 
adopted  this  constitution,  desired  to  have,  in  their  court  of  last  resort,  i 
so  far  as  such   better  constitutional  provision  would   enable  it,  an  \ 
educated  and   independent   judiciary,  with   a   comparatively  stable  ! 
tenure  of  office,  and  with  a  jurisdiction,  which  whilst  it  could  not  be 
diminished  by  the  legislature,  so  as  to  be  powerless  to  resist  it,  might 
be  increased  by  it  to  any  extent  which  the  wants  of  the  people  might  ' 
require. 

We  have  thus  carefully  and  fully  gone  through  with  the  reasons 
and  authorities  which  bear,  or  are  deemed  to  bear,  upon  two  of  the 
questions  raised  in  this  case ;  because,  as  we  have  had  occasion  to 
say  before,  at  this  very  term,  we  should  not  feel  justified  in  declaring 
the  act  of  a  coordinate  branch  of  the  State  government  unconstitu- 
tional and  void,  unless  it  plainly  so  appeared  to  us;  and  because  we 
are  solicitous,  that  upon  so  important  a  subject,  and  one  in  which  we 
ai-e  asserting  the  constitutional  power  of  our  own  department  against 
the  encroachments  of  another,  not  only  to  be,  but  to  seem  to  be,  in  the 
right.  In  a  case  so  clear  from  doubt  as  this  is,  we  should  be 
equally  unworthy  of  the  post  of  duty  in  which  we  are  placed  by  the 
Constitution,  if  we  swerved  from  the  duty  which  that  post  devolves 
upon  us,  either  from  want  of  a  just  attention  to,  or  a  just  sense  of, 
the  rights  of  litigants  before  us,  oppressed  by  an  unlawful  exercise 
of  power  by  the  assembly,  or  from  a  false  delicacy  growing  out  of 
the  conflict  of  power  involved  in  the  case  between  the  legislative  de- 


88  DEPARTltfENTS   OF   GOVERNMENT.  [CHAP.  III. 

partinent  of  the  government  and  our  own.  It  is  the  constitution 
'which  speaks  through  us,  and  not  we  alone,  when  we  declare,  as  we 
now  do,  that  the  vote  and  resolution  of  the  General  Assembl}',  passed 
at  the  January  session,  1854,  upon  the  petition  of  Raymond  G.  Place 
and  Jason  T.  Place,  and  certified  to  us  by  the  court  of  common  pleas, 
^for  the  county  of  Providence,  is  unconstitutional  and  void ;  and  we 
hereby  remand  this  cause  to  said  Court  of  Common  Pleas,  now  in 
session  at  Providence,  with  directions  to  said  court  to  proceed  therein 
according  to  this  decision ;  and  order  the  clerk  of  this  court  forth- 
jpith  to  certify  to  said  court  this,  our  decision,  together  with  the 
costs  of  the  cause  in  this  court. 


A 


\   GEEBRICK  V.  STATE. 
5  Iowa,  491.     1857. 

iNDicTMEis-r  for  selling  intoxicating  liquors,  without  having  ob- 
tained a  license,  in  accordance  with  the  act  entitled  "an  act  to  license 
and  regulate  the  sale  of  malt,  spirituous,  and  vinous  liquors,  in  the 
State  of  Iowa,"  approved  January  29,  1857.  A  demurrer  to  the  in- 
dictment was  overruled,  and  defendant  having  pleaded  not  guilty, 
and  submitted  his  cause  to  the  court,  was  found  guilty,  and  adjudged 
to  pay  a  fine  of  fifty  dollars  and  costs  of  suit.     Defendant  appeals. 

ST0CKT0^^  J.  The  question  made  upon  the  demurrer  to  the  indict- 
ment, is  whether  the  facts  alleged  constitute  a  public  offence.  The 
defendant  is  charged  with  vending  and  retailing  spirituous  liquors 
and  intoxicating  drinks,  without  having  first  complied  with  the  con- 
ditions and  obtained  license,  as  required  by  the  first  section  of  the 
act  entitled  "  an  act  to  license  and  regulate  the  sale  of  malt,  spirituous 
and  vinous  liquors  in  the  State  of  Iowa,"  approved  January  29, 1857. 

This  act  authorizes  the  county  judge  of  any  county,  to  issue  a 
license  to  any  person,  making  application  according  to  its  provisions, 
for  the  sale  of  malt,  spirituous  and  vinous  liquors ;  and  provides  for 
the  punishment  of  any  person  selling  without  a  license.  By  the 
seventeenth  and  eighteenth  sections,  it  is  provided,  that  the  act 
entitled  "  An  act  for  the  suppression  of  intemperance,"  approved 
January  22,  1855,  is  not  repealed  in  any  county  of  the  State,  unless 
the  people  of  such  county  shall,  by  vote  taken  upon  the  question  of 
licensing  the  sale  of  spirituous  or  vinous  liquors,  adopt  the  said  act 
of  January  29,  1857;  and  if  a  majority  of  the  legal  voters  in  any 
county  shall  vote  in  favor  of  the  act,  then  the  county  judge  shall 
proceed  to  issue  license,  as  by  the  said  act  is  provided. 

It  is  not  averred  in  the  indictment,  nor  does  it  in  any  manner 
appear  in  the  pleadings  or  evidence,  that  the  act  of  January  29,  1857 


V/^^W^,: 


/ 


SECT.  I.]  GEEBRICK  V.   STATE.  89 

(the  license  law),  has  been  adopted  by  a  majority  of  the  legal  voters 
of  Des  Moines  County ;  nor  that  the  question  of  adopting  the  same, 
has  ever  been  submitted  in  said  county  to  a  vote  of  the  people.  No 
question  is,  however,  made  in  the  argument,  upon  the  fact  that  it  is 
not  averred  or  shown  by  the  record  that  the  act  had  been  adopted,. 
The  constitutionality  of  the  act,  is  the  only  question  argued  before  ^ 
us,  and  the  only  one  we  are  called  upon  to  decide.  ' 

In  Santo  v.  The  State,  2  Iowa,  203,  it  was  held  that  the  eighteenth 
section  of  "the  act  for  the  suppression  of  intemperance,"  approved 
January  22,  1855,  which  provided  for  submitting  to  the  people  of  the 
State  the  question  of  prohibiting  the  sale  of  intoxicating  liquors, 
was  not  a  submission  in  its  largest  and  broadest  sense  of  the  ques- 
tion, whether  the  act  aforesaid  should  become  a  law ;  that  such  a 
submission  would  have  been  unconstitutional  and  void  ;  that  "  the 
General  Assembly  cannot  legally  submit  to  the  people  the  proposition  ■ 
whether  an  act  shall  become  a  law  or  not ;  and  that  the  people  have  j 
no  power,  in  their  primary  or  individual  capacity,  to  make  laws. 
They  must  do  this  by  their  representatives." 

This  decision  is  in  conformity  with  that  of  Kice  v.  Foster,  4  Har- 
rington, 492,  in  which  it  is  said :  "  The  legislature  is  invested  with 
no  power  to  pass  an  act  which  is  not  a  law  in  itself,  when  passed,  and 
has  no  authority  as  such,  and  is  not  to  become  or  be  a  law,  until  it 
shall  have  been  created  and  established  by  the  will  and  act  of  some 
other  persons  or  body,  by  whose  will,  also,  existing  laws  are  to  be 
repealed  or  altered  and  supplied." 

To  the  same  purport  is  the  decision  in  Thorne  v.  Kramer,  15  Barb. 
112.     The  constitution  of  the  State  of  New  York  provided  that  "the 
legislative  power  of  the    State  should  be   vested  in  a  Senate  and 
Assembly."     The  court  say  :  "  The  law  making  power  being  thus  in- 
trusted to  the  Senate  and  Assembly  by  the  Constitution,  it  cannot, 
according  to  any  fair  construction  of  that  instrument,  be  also  lodged 
with,  or  transferred  to,  any  other  body.     The  members  of  the  Senate 
and  Assembly  are  elected  by  their  constituents  for  the  important 
duty  of  making  laws.     It  is  to  be  presumed   they  are  chosen  for 
their  wisdom,  integrity,  experience,  and  fitness.    Upon  what  principle,\ 
then,  can  the  representatives  transfer  to  any  other  person  or  persons  ) 
the  power  of  making,  or  what  is  tantamount,  the  power  of  breatliing  / 
life  and  efficacy  into  laws  ?  "     See  also  Parker  v.  Commonwealth,  6 
Barr,  507;  Bradley  v.  Baxter,  15  Barb.  122. 

The  position  seems  to  us  too  clear  to  admit  of  any  doubt,  that  if  ' 
the  act  of  January  29, 1857,  receives  its  vitality  and  force  from  a  vote 
of  the  people,  such  vote  is  an  exercise  of  legislative  power,  and  the 
law  is  unconstitutional  and  void.  The  legislative  power  is  vested  in 
the  General  Assembly,  and  can  be  exercised  by  that  body  alone.  It 
is  to  be  observed,  that  the  question  of  the  adoption  of  the  act  is  not 
submitted  to  a  vote  of  the  people  of  the  whole  State,  and  is  only  to 
be  voted  upon  by  the  people  of  any  county,  upon  the  order  and  direc-/ 


A 


90  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

tion  of  the  county  judge,  on  the  petition  of  one  hundred  of  the  legal 
voters  of  the  county.     Two  effects  are  given  to  a  vote  in  its  favor : 
1.    If  the  act  is  adopted  by  a  majority  of  the  legal  voters  of  any 
county,  then  the  "act  for  the  suppression  of  intemperance,"  approved 
January  22,  1855,  is  repealed  in  such  county.     2.   The  county  judge 
is   to  issue   licenses   for   the   sale   of   malt,   spirituous   and  vinous 
liquors,  to  any  one  making  the  necessary  application. 
/Under  the  jiiict^^r_the  suppression  of  intemperance,"  aj^proyed 
/January  22,  1S55,  the  rule  of  law  was  total  prohibition  of  the  manu- 
)f"acture  or  saTe^oT  intoxicating  liquors.     This_  had  becmue  the,,xsiiib- 
(lished  policy  oTfheBtatey the  prohibitory  TaWliad  received  thg. sanction 
of  each  department  of  the  State  government,  legislative,  executive  and 
judicial.     If  any  other  indorsement  was  requisite  it  was  not  wanting, 
Avhen  it  received  at  the  hands  of  the  people  of  the  State,  by  their  vote 
in  its  favor  at  the  April  election,  1855,  the  emphatic  impress  of  their 
,  approval.  _The_aciLof  January  29.  185I^-U,ndertakes_to  change  this 
A'  rule  of  law,  and  to  inaugurate  a  different  policy.     It  attempts  to  ab- 
'   rogate  the  uniform  operation,  and,  consequently,  the  force  and  validit}-, 
of  a  law  general  in  its  nature,  and  intended  to  secure  the  entire  pro- 
hibition of  the  sale  of  intoxicating  liquors  in  the  State,  and  to  provide 
for  licensing  the  sale  thereof,  in  any  county  of  the  State  desiring  the 
change,  not  by  virtue  of  an  act  of  the  legislature  passed  into  a  law, 
according  to  the  forms  of  the  constitution,  but  by  the  vote  of  a  majority 
of  the  people  of  such  county  expressed  at  the  polls. 

We  cannot  be  mistaken  in  interpreting  this  act,  and  the  proceed- 
ings authorized  by  it,  to  be  in  effect  the  repeal  of  one  law,  and  the 
enactment  of  another,  by  a  vote  of  the  people.  The  question  does 
not  differ  essentially  from  that  decided  in  Rice  u.  Foster,  svpra,  in 
which  it  is  held  that  a  reference  to  the  decision  of  the  people  at  the 
polls,  of  the  question  whether  license  shall  be  granted  or  not,  and 
according  to  their  decision  in  any  county,  continuing  or  repealing 
therein  the  former  law,  and  substituting  the  new  one  in  its  place,  is 
a  plain  surrender  to  the  people  of  the  law  making  power.  A_law  can 
no  more  be  repealed  thanjt  can  be  madejDy  the  vote  olthe  p'eopTeTand 
the  fact  of  a  majority  of  the  votes  being  cast  in  favor  of  license-can 
have  no  more  effect  in  repealing  the  prohibitory  liquor  law,  than  it 
,can  have  in  authorizing  the  county  judge  to  issue  license.  It  is  true 
that  the  vote,  authorized  under  the  act  of  1857,  is  not  to  be. taken 
directly  upon  the  question,  whether  the  act  shall  or  shall  not  become 
a  law.  It  is  to  be  taken,  however,  upon  a  question,  the  adoption  of 
which  by  the  people  of  a  county,  is  to  give  all  its  force  and  opera- 
tion to  the  law,  whether  for  the  repeal  of  the  former  prohibition,  or 
for  authorizing  the  issuing  of  license  by  the  county  judge.  Ko  rule 
of  conduct  in  reference  to  the  subject  matter  of  the  act  is  established 
or  changed  by  it,  until  it  is  adopted  by  the  people  of  any  county.  It 
does  not  occur,  as  was  held  by  a  majority  of  the  court,  in  Santo  v.  The 
State,  under  the  act  of  January  22,  1855,  that  the  law  is  to  take  effect 


f] 


1 


SECT.  I.]  DALBY   V.    WOLF.  91 


and  be  in  full  force.     Whatever  may  be  the  result  of  the  vote,  and  5 

even  without  such  vote,  it  receives  its  vital  force  in  this  case  from  i 

something  outside  of  the  will  of  the  legislature. 

[The   remainder  of  the  opinion   deals   with   the  objection  to  the  ; 

statute  that  it  is  not  of  uniform  operation,  and  Wright,  C.  J.,  dissents 
from  the  opinion  of  the  majority  on  that  point.]  \ 

It  results  from  the  foregoing  considerations,  that  the  act  entitled,  \  \ 

*'  An  act  to  license  and  regulate  the  sale  of  malt,  spirituous  and  vinous  1  i 

liquors,  in  the  State  of  Iowa,"  approved  January  29,  1857,  is  uncon-y 
stitutional  and  void.     The  defendant's  demurrer  to  the  indictment 
against  him  for  selling  liquors,  without  having  first  obtained  a  license, 
as  required  by  such  act,  was  improperly  overruled,  and  the  judgment  ; 

of  the  District  Court  will  be  Reversed.^ 


U 


DALBY  V.    WOLF.  /^^/^  ' 

14  Iowa,  228.     1862.  '~"<^ 

Weight,  J.  Plaintiff  declares  in  trespass  for  that  defendants 
wrongfully  took  and  drove  away  certain  personal  property,  belonging  I 

to  said  plaintiff,  of  the  value,  &c.     The  second  clause  of  the  answeiy^  j 

justifying,  avers  that  the  county  of  Jones,  on  the  first  Monday  in  S5r»' 

April,  1855,  did,  by  a  majority  vote,  on  a  question  duly  submitted,  .'  j 

decided  in  favor  of  restraining  swine  and  sheep   from  running  at  I 

large;  that  after  this,  the  property  in  question   (swine)   was  found 
running  at  large,  upon  the  premises  of  the  defendant.  Palmer,  wlio  j 

gave  notice  to  his  co-defendant.  Wolf,  a  constable,  that  Palmer  took  ( 

them  into  possession ;  and  Wolf,  after  due  notice,  advertised  and  sold  j 

them.     To  this  part  of  the  answer  there  was  a  demurrer,  which  was  ! 

sustained,  and  defendants  appeal. 

The  vote  referred  to  was  taken  under  §  114  of  the  Code,  which  pro- 
vides that  the  county  judge  may  submit  to  the  people  of  his  county, 
the  question,  whether  stock  shall  be  permitted  to  run  at  large,  or  at 
what  time  it  shall  be  prohibited.  By  the  act  of  January,  28,  1857, 
eh.  193,  the  manner  of  enforcing  this  law,  after  an  affirmative  vote,  is 
pointed  out;  and  it  was  under  this  that  defendants  proceeded  in  sell- 
ing this  stock. 

Plaintiff  claims  that  this  law  is  in  conflict  with  §  6,  art.  1,  of  the 
Constitution,  which  declares,  that  "all  laws  of  a  general  nature  shall 
have  a  uniform  operation;"  and  for  the  further  reason,  that  it 
depends  for  its  validity  upon  the  vote  of  the  people,  and  is  not  the 
expressed  will  of  the  legislature. 

Neither  of  these  positions  is  tenable.     They  utterly  mistake  the 

1  Ace.  Barto  r.  Himrod,  8  N.  Y.  483. 


92  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

intsntion  of  the  constitutional  provision  quoted,  and  misapprehend 
the  scope  and  spirit  of  the  decisions,  in  this  and  other  States,  which 
hold  that  the  legislature  cannot  refer  to  the  people  the  question 
whether  a  particular  act  shall  become  a  law.  In  all  the  cases  referred 
to,  it  will  be  found,  that  as  in  Thorne  v.  Cramer,  15  Barb.  112,  and 
Bradley  v.  Baxter  and  others,  id.  112,  the  question  submitted  was 
whether  or  not  a  proposed  law  should  become  operative.  Thus,  in 
the  first  case  cited,  it  was  provided  by  the  statute  that  "  the  electors 
shall  determine,  by  ballot,  at  the  annual  election  to  be  held  in 
November  next,  whether  this  act  shall,  or  not,  become  a  law."  If  a 
majority  voted  against  it,  then  it  was  to  be  null  and  void  ;  if  for  it, 
then  it  was  to  take  effect  on  a  day  named.  And  such  legislation 
was  expressly  condemned  by  this  court  in  Santo  v.  The  State,  2  Iowa, 
165,  which  was  recognized  ahd  followed  in  Geebrick  y.  The  State,  5 
id.  491.  The  law  in  question,  however,  is  not  obnoxious  to  this 
objection.  Xhe-populaiLjvvill  is  expressed_und£r  and  by  virtue_of_a 
law  that  is  in  force  and  effect,  and  the  people  neither  make  nor 
repeal  it.     They  only  determine  whether  a  certain  thing .ahall  -he-done^ 

\  under  the  law,  and  not  whether  said  law  shall  take  effects. The  law 

''  had  full  and  absolute  vitality,  when  it  passed  from  the  hands  of  the 
tegislature  ,and  the  people,  iind^i^the_iLruie_of_actiim^tJiei^ei^^ 
"for  their^oyernmeiitj^roc^eded  to^  act.  The  same  rule — the  same 
law  —  was  given  to  all  the  people  of  the  State,  to  all  parts  of  it ;  the 
same  method  for  taking  the  vote  was  presented  for  all  the  counties ; 
the  same  penalties  were  attached.  As  a  result  of  the  vote,  a  different 
regulation,  of  a  police  nature,  might  exist  in  one  county  from  what 
existed  in  another;  just  as,  under  the  same  section  (114),  one  county 
might  determine,  by  a  popular  vote,  that  a  higher  rate  of  tax  should 
be  levied  than  that  provided  by  the  general  law,  when  the  county 
warrants  were  depreciated,  while  another  voted  against  it.  So  it  is 
in  principle  like  the  provision  which  submits  the  question,  whether 
money  should  be  borrowed  to  aid  in  the  erection  of  public  buildings. 
One  county  might  decide  in  favor  of  such  loan,  while  another  rejected 
it ;  and  yet  the  law,  under  which  they  vote,  is  operative,  and  in  full 
effect.  Not  only  so,  but  it  gives  a  uniform  rule  to  all  the  people,  and 
all  the  counties  alike. 

The  case  of  Geebrick  v.  The  State,  supra,  is  principally  relied  upon 
to  maintain  this  ruling.     The  writer  of  this  opinion  dissented  from 
some  of  the  views  expressed  in  that  case;  and,  without  now  examin- 
ing it  in  detail,  it  is  sufficient  to  say  that  it  cannot  fairly  be  construed 
into  an  authority  for  declaring  this  vote  invalid.     The  substance  of 
r~that  decision,  when  divested  of  some  of  its  reasoning  (not  necessary 
I   to  the  decision  of  the  cause),  is  ''that  a  law  can  no  more  be  repealed 
I  than  it  can  be  made  by  a  vote  of  the  people."    As  to  this  proposition, 
(we  entertain  no  doubt.     But   §   114  of  the  Code  does  not  give  the 
/people  the  power,  by  their  vote,  to  do  either.     It  simply  declares  that 
they  may  determine  for  themselves,  in  the  several  counties,  whether 


A    ^  i    /  /    i^ 


^  /-^ ^  ^  |^^ — ut^    /K 


SECT.  I.]  STONE   V.    CITY    OF    CHARLESTOWN.  93 

a  particular  police  regulation  shall,  or  shall  not,  be  adopted.  The 
law  is  entirely  complete,  in  all  its  parts;  and  whatever  their  vote,  it 
still  has  operative  force  and  effect.  The  distinction,  to  our  minds,  is^ 
clear,  broad  and  unquestionable. 

The  law  does  not  contemplate  that  the  officer  shall  have  a  process 
to  make  the  sale  contemplated.  As  he  does  not  justify  under  a 
Avritten  process,  therefore,  there  was  none'  to  attach  to  his  plea  of 
justification. 

The  second  section  of  the  act  of  1857  is  retrospective  in  its  opera- 
tion, and  applies  to  votes  taken  before,  as  well  as  after,  its 
passage.  Reversed. 


y 


STONE    V.    CITY   OF  CHARLESTOWN. 

114  Massachusetts,  214.     1873. 

Gray,  C.  J.  These  petitions  are  filed  under  the  concluding  sec- 
tions of  the  Sts.  of  1873,  cc.  286,  314,  respectively,  annexing  the  city 
of  Charlestown  and  the  town  of  West  Roxbury  to  the  city  C)FBbston. 
The  petitioners  seek  to  have  the  election  and  balloting  by  which 
those  acts  have  been  accepted  by  the  municipalities  immediately 
affected  declared  void,  for  various  reasons,  many  of  which  apply 
equally  to  both  petitions,  and  the  two  cases  may  be  conveniently 
disposed  of  in  one  opinion. 

1.  One  of  the  principal  objections  made  to  the  validity  of  the  pro- 
ceedings in  each  case  is  that  the  statute  in  question,  being  in  terms 
to  take  full  effect  only  upon  the  condition  of  its  approval  and  accept- 
ance, in  the  one  case  by  the  cities  of  Boston  and  Charlestown,  and 
in  the  other  by  the  city  of  Boston  and  the  town  of  West  Roxbury, 
was  an  attempted  delegation  of  legislative  power,  and  therefore  un- 
constitutional and  invalid. 

The  power  to  alter  the  boundaries  of  the  counties,  towns,  and 
cities,  into  which  the  territory  of  the  Commonwealth  has  been 
divided  for  political  and  municipal  purposes,  is  an  inherent  attribute 
of  the  Legislature,  to  be  exercised  according  to  its  own  views  of 
public  expediency,  unless  restrained  by  express  constitutional 
provision. 

The  Legislature  has  equal  power  to  change  the  boundaries  of 
counties,  as  of  cities  and  towns.  Opinion  of  Justices,  G  Cush.  578. 
The  boundaries  of  counties  being  arranged  rather  for  the  distribution 
of  members  of  the  Legislature,  and  of  the  jurisdiction  of  the  courts, 
than  for  purposes  of  local  government,  the  Legislature  of  Massachu- 
setts has  never,  we  believe,  submitted  to  the  vote  of  the  people  of  a 
county  an  act  which  changed  its  boundaries,  either  by  dividing  a 


94  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

county,  or  by  setting  off  a  town  from  one  county  to  another,  or  part 
of  a  town  from  one  county  to  the  county  containing  another  part. 

In  the  early  years  of  the  Commonwealth,  there  were  no  cities, 
and  it  was  not  usual  to  make  any  statute  dividing  a  town,  or  other- 
wise altering  its  boundaries,  depend  upon  a  vote  of  all  its  inhabi- 
tants. The  power  to  erect  city  governments  was  first  conferred  upon 
the  Legislature  in  1821,  by  the  second  article  of  the  amendments  of 
the  Constitution,  with  a  proviso  that  no  such  government  should  be 
erected  in  any  town  of  less  than  twelve  thousand  inhabitants,  nor 
without  the  consent  and  application  of  a  majority  of  the  inhabitants 
of  the  town.  That  article  does  not  indeed  apply  in  all  its  provisions 
to  the  annexation  of  one  city  or  town  to  another  city  already  estab- 
lished by  the  Legislature,  nor  affect  the  power  of  the  Legislature  to 
change  the  boundaries  of  existing  towns  and  cities  at  its  discretion. 
Chandler  v.  Boston,  112  jNLass.  200.  But  since  the  adoption  of  that 
amendment  to  the  Constitution,  it  has  been  the  usage  of  the  Legis- 
\  lature,  acting  in  accordance  with  the  spirit  of  the  amendment,  to 
'.submit  acts  dividing  or  uniting  towns,  or  annexing  a  considerable 
I  part  of  the  territory  of  one  town  or  city  to  another,  to  the  acceptance 
of  the  inhabitants  of  one  or  both  of  the  towns  or  cities  whose  boun- 
daries are  thus  altered. 

In  all  such  cases,  the  Legislature  gives  great  weight  to  the  wishes 
/'of  the  inhabitants  of  the  territory  to  be  immediately  affected  by  the 
'change;  and  if  not  satisfied  by  the  petitions  and  remonstrances 
addressed  to  it,  or  by  the  reports  of  its  committees,  as  to  what  is  the 
deliberate  wish  of  the  majority  of  such  inhabitants,  it  may  well, 
after  determining  in  all  other  respects  upon  the  measure  to  be 
adopted,  and  framing  it  into  the  form  of  a  statute,  provide  for 
ascertaining  the  sense  of  such  inhabitants  at  meetings  held  by  its 
I  authority  for  the  purpose,  and  declare  that  the  act  should  take  effect 
(if  thereupon  accepted  by  a  majority  of  their  votes,  and  not  other- 
wise. In  doing  so,  the  Legislature  does  not  in  anj^_seiis£_d£lesate_ 
fits  constitutional  authority,  but,  in  the  exercise  of  that  authority^ 
determines  that,  if_jEe~inh'abitants  of  that^art_jrj3Le  Stat^to  be_ 
immediately_affected  by  the^  proposed  change  assent  to  rt^^ublic 
"ppTIcy^reguires  It  to  be  luade^and^  thjitL^without  such  assent,_the_ 
otlier  con  sidj  ration  suffered  in  suj^jport  of  it  are  not  sufficient_tojus- 
_tify  its  adoption  byJheLegislatur^^ 

should  take  effecLat  once,  or  only  upon  such  acceptance  by_tliejn-- 
abitants,  iswithin  the_dis^retion  of  the  Legislature  Jo_determine. 
The  act  "of'Congress~of  1846,  c.  35,  made  the  retrocession  of  the 
county  of  Alexandria  to  the  State  of  Virginia  to  depend  upon  the 
vote  of  the  county,  and  its  constitutionality  has  never  been  im- 
pugned. 9  U.  S.  Sts.  at  Large,  35.  M'Laughlin  v.  Bank  of  Poto- 
mac, 7  Graft.  68.  Bull  v.  Read,  13  Graft.  78,  92.  In  Wales  v. 
Belcher,  3  Pick.  508,  it  was  held  by  this  court  that  the  act  establish- 
ing the  Justices'  Court  in  the  county  of  Suffolk  was  not  unconstitu- 


,SJ 

h 


SECT.  I.]  FIELD   V.    CLARK.  96 

tional  because  its  going  into  effect  was  made  to  depend  upon  the 
acceptance  of  the  city  charter  by  the  inhabitants  of  the  city  of 
Boston.  Amid  all  the  diversity  of  opinion  upon  the  much  vexed 
question,  how  far  statutes  may  be  made  contingent  upon  being  ac-  ■ 
cepted  by  popular  vote  withoixt  vio]atiii^_the  j^rinc^ijjle^  that  _th.fi- 
legislative  power  cajinot  be  delegate_d_,  there  J.s  a  complete  harmony 
of  adjudication  in  favor  of  the  authority  of  the  Legislature,  unless 
controlled  by  a  special  constitutional  provision  upon  the  subject, 
to  submit  statutes  dividing  or  uniting  counties  or  towns,  or  estab- 
lishing or  enlarging  a  city,  to  a  vote  of  the  inhabitants  of  the  terri-y 
tory  immediately  affected.  Commonwealth  v.  Quarter  Sessions,  8 
Penn.  St.  391  ;  Smith  v.  McCarthy,  56  Penn.  St.  359  ;  Bank  of 
Chenango  v.  Brown,  26  N.  Y.  467  ;  Clarke  v.  Rochester,  28  N.  Y. 
605,  634  ;  Paterson  v.  Society  for  Manufactures,  4  Zab.  385  ;  People 
V.  Reynolds,  5  Gilman,  1  ;  People  v.  Salomon,  51  111.  37  ;  St.  Louis 
V.  Russell,  9  Mo.  503  ;  State  v.  Scott,  17  Mo.  521  ;  State  v.  El  wood, 
11  Wis.  17  ;  Morford  v.  Unger,  8  Iowa,  82  ;  Bull  v.  Read,  13  Gratt. 
78  ;  Manly  v.  Raleigh,  4  Jones  Eq.  370. 

The   Legislature,    having   the    exclusive    power   of    determining^ 
whether  such  an  act  shall  or  shall  not  be  submitted  to  popular  vote 
at  all,  may  also  determine  how  the  vote  shall  be  takenupon  any  act 
so   submitted,   and,   when   the    municipality  in   question  is  a  city, 
whether  the  vote  upon  its  acceptance  shall  be^by  the _ citj^councilj^ as 
representing  the  whole  city,  or^by  the  inhabitants  themselves,  and 
in  the   latter  alternative,  whether  their  votes  shall  be  taken  in  a^ 
general  meeting  or  by  wards.     The  power  of  the  Legislature  in  this| 
respect  is  not  restricted  by  any  constitutional  provision. 

[After  considering  many  other  objections  to  the  statute  the  court 
continues.] 

The  result  of  the  whole  matter  is,  that  none  of  the  objections  sug- 
gested to  the  validity  of  either  statute,  or  of  the  proceedings  under 
it,  can  be  sustained,  and  that  each 

Petition  must  be  dismissed. 


y 


EIELD  V.  CLARK. 
143  United  States,  649.     1892. 


[This  case  and  others  considered  with  it  arose  on  appeals  by  cer- 
tain importers  of  woolens,  laces,  and  cotton  goods  from  the  decision 
of  the  Board  of  General  Appraisers  sustaining  the  Revenue  Collec- 
tors in  the  exaction  of  certain  duties  under  the  tariff  act  of  1890, 
26  stat.  567,  c.  1244.  The  decision  of  the  Board  being  sustained  in 
the  Circuit  Court,  the  cases  were  brought  to  the  Supreme  Court  for 
review.      Among  other  objections  to  the  validity  of  the  tariff  act 


Q 


96  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

under  which  the  duties  in  question  were  collected,  it  was  claimed 
that  the  whole  act  was  void  by  reason  of  the  invalidity  of  sec.  3 
thereof  authorizing  the  President  of  the  United  States,  for  the  pur- 
pose of  securing  reciprocal  trade  with  countries  producing  sugar, 
coffee,  tea,  and  hides,  to  suspend  the  free  importation  of  those  articles 
and  impose  a  tariff  thereon  at  rates  provided  by  the  act.] 
Mk.  Justice  Harlan  delivered  the  opinion  of  the  court. 

/  The  plaintiffs  in  error  contend  that  this  section,  so  far  as  it  author- 
izes the  President  to  suspend  the  provisions  of  the  act  relating  to  the 
free  introduction  of  sugar,  molasses,  coffee,  tea,  and  hides,  is  uncon- 
stitutional, as  delegating  to  him  both  legislative  and  treaty-making 
powers,  and,  being  an  essential  part  of  the  system  established  by 
Congress,  the  entire  act  must  be  declared  null  and  void.  On  behalf 
of  the  United  States  it  is  insisted  that  legislation  of  this  character  is 
sustained  by  an  early  decision  of  this  court  and  by  the  practice  of 
the  government  for  nearly  a  century,  and  that,  even  if  the  third 
section  were  unconstitutional,  the  remaining  parts  of  the  act  would 
stand. 

The  decision  referred  to  is  «  The  Brig  Aurora,"  7  Cranch,  382,  388. 
What  was  that  case  ?  The  non-intercourse  act  of  March  1,  1809, 
c.  24,  sees.  4,  11,  forbidding  the  importation,  after  May  20,  1809,  of 
goods,  wares,  or  merchandise  from  any  port  or  place  in  Great  Britain 
or  France,  provided  that  "  the  President  of  the  United  States  be,  and 
he  liereby  is,  authorized,  in  case  either  France  or  Great  Britain  shall 
so  revoke  or  modify  her  edicts  as  that  they  shall  cease  to  violate  the 
neutral  commerce  of  the  United  States,  to  declare  the  same  by  procla- 
mation ; "  after  which  the  trade  suspended  by  that  act  and  the  act 
laying  an  embargo  could  be  "  renewed  with  the  nation  so  doing."  2 
Stat.  528.  The  act  of  1809  expired  on  the  1st  of  May,  1810,  on  which 
day  Congress  passed  another  act,  c.  39,  §  4,  declaring  that  in  case 
either  Great  Britain  or  France,  before  a  named  day,  so  revoked  or 
modified  her  edicts  "  as  that  they  shall  cease  to  violate  the  neutral 
commerce  of  the  United  States,  which  fact  the  President  of  the 
United  States  shall  declare  by  proclamation,  and  if  the  other  nation 
shall  not "  within  a  given  time  revoke  or  modify  her  edicts  in  like 
manner,  then  certain  sections  of  the  act  of  1809  "  shall  from  and 
after  the  expiration  of  three  months  from  the  date  of  the  proclama- 
tion aforesaid,  be  revived  and  have  full  force  and  effect,  so  far  as 
relates  to  the  dominions,  colonies,  and  dependencies,  and  to  the  ar- 
ticles the  growth,  produce,  or  manufacture  of  the  dominions,  colonies, 
and  dependencies  of  the  nation  thus  refusing  or  neglecting  to  revoke  or 
modify  her  edicts  in  the  manner  aforesaid.  And  the  restrictions  im- 
posed by  this  act  shall,  from  the  date  of  such  proclamation,  cease  and 
be  discontinued  in  relation  to  the  nation  revoking  or  modifying  her 
decrees  in  the  manner  aforesaid."  2  Stat.  605,  606.  On  the  2d  of 
November,  1810,  President  Madison  issued  his  proclamation  declar- 


SECT.  I.]  FIELD    V.   CLARK.  97 

ing  that  France  had  so  revoked  or  modified  her  edicts  as  that  theyf 
ceased  to  violate  the  neutral  commerce  of  the  United  States.     In  the 
argument  of  that  case,  it  was  contended  by  Mr.  Joseph  R.  Ingersoll  that 
Couo-ress  could  not  transfer  legislative  power  to  the  President,  and 
that  to  make  the  revival  of  a  law  depend  upon  the  President's  procla-     ^ 
mation  was  to  give  that  proclamation  the  force  of  a  law.      To  this  it 
was  replied  that  the  legislature  dM_^oLti'ans|er^uj^o\ver_ollegisla- 
Tion  to  the  President  j^  that  they  q^nlypre^cnb^d_thejeyidence  which 
"sFould  be  admitted  of  a  fact^  upon  which  the  law;  should^go  into 
~eEecL__Mv.  Justice  Johnson,  speaking  for  the  whole  court,  said : 
"We  can  see  no  sufficient  reason  why  the  legislature  should  not  ex-, 
ercise  its  discretion  in  reviving  the  act  of  March  1,  1809,  either 
expressly  or  conditionally,  as  their  judgment  should  direct.      The  i 
19th  section  of  that  act,  declaring  that  it  should  continue  in  force  to  \ 
a  certain  time,  and  no  longer,  could  not  restrkit,their  power  of  extend-  / 
ingjts  operation  without  limitation  upon  the  qccurrence_of_any  sub-^^ 
sequent  combination  of  events."     This  certainly  is  a  decision  that  it 
was  competent  for  ingress  toThake  the  revival  of  an  act  depend 
upon  the  proclamation  of  the  President,  showing  the  ascertainment 
by  him  of  the  fact  that  the  edicts  of  certain  nations  had  been  so  re- 
voked or  modified  that  they  did  not  violate  the  neutral  commerce  of 
the  United  States.     The  same  principle  would  apply  in  the^case  of 
the  suspension  of  an  act  upOjnr^allcontingencyJto  he  ascertained  by 
the  President^  and  made  known  by  his  proclamation. 
^'^^^To^wEat  extent  do  precedents  in  legislation  sustain  the  validity  of 
the  section  under  consideration,  so  far  as  it  makes  the  suspension  of 
certain  provisions  and  the  going  into  operation  of  other  provisions 
of  an  act  of  Congress  depend  upon  the  action  of  the  President  based 
upon  the  occurrence  of  subsequent  events,  or  the  ascertainment  by 
him  of  certain  facts,  to  be  made  known  by  his  proclamation  ?     If  we 
find  that  Congress  has  frequently,  from  the  organization  of  the  gov- 
ernment to  the  present  time,  conferred  upon  the  President  powers, 
with  reference  to  trade  and  commerce,  like  those  conferred  by  the 
third  section  of  the  act  of  October  1,  1890,  that  fact  is  entitled  to 
great  weight  in  determining  the  question  before  us. 
[Various  statutes  are  set  out  at  considerable  length.] 
It  would  seem  to  be  unnecessary  to  make  further  reference  to  acts 
of  Congress  to  show  that  the  authority  conferred  upon  the  President 
by  the  third  section  of  the  act  of  October  1,  1890,  is  not  an  entirely 
new  feature  in  the  legislation  of  Congress,  but  has  the  sanction  of, 
many  precedents  in  legislation.     While  some  of  these  precedents  are 
stronger  than  others,  in  their  application  to  the  case  before  us,  they 
all  show  that,  in  the  judgment  of  the  legislative  branch  of  the__goy- 
ernment,  it  is  often  desircible,  if  not  essential  for  tlie  protection  of 
^pie  interests  of  our  people,  against  the  unfriendly  or  discriminating 
regulations  established  by  foreign  governments,  in  the  interests  of 
their  people,  to  invest  the  President  with  large  discretion  in  matters 


98  DEPARTMENTS    OF   GOVERNMENT.  [CHAP.  III. 

arising  out  of  the  execution  of  statutes  relating  to  trade  and  com- 
"merce  with  other  nations.  If^he  decision  in  the  case  of  "  The  Brig 
'Xuroi-aT"  had  never  been  rendered,  the  practical  construction  of  the 
Constitution,  as  given  by  so  many  acts  of  Congress,  and  embracing 
almost  the  entire  period  of  our  national  existence,  should  be  not  over- 
ruled, unless  upon  a  conviction  that  such  legislation  was  clearly  in- 
compatible with  the  supreme  law  of  the  land.  Stuart  v.  Laird,  1 
Cranch,  299,  309;  Martin  v.  Hunter,  1  Wheat.  304,  351;  Cooley  v. 
Port  Wardens,  12  How.  299,  315;  Lithographic  Co.  v.  Sarony,  111 
U.  S.  53,  57;  The  Laura,  114  U.  S.  411,  416. 

The  authority  given  to  the  President  by  the  act  of  June  4,  1794,  to 
lay  an  embargo  on  all  ships  and  vessels  in  the  ports  of  the  United 
States,  "  whenever,  in  his  opinion,  the  public  safety  shall  so  require," 
and  under  regulations,  to  be  continued  or  revoked  "  whenever  he  shall 
think  proper;"  by  the  act  of  February  9,  1799,  to  remit  and  discon- 
tinue, for  the  time  being,  the  restraints  and  prohibitions  which  Con- 
gress had.  prescribed  with  respect  to  commercial  intercourse  with  the 
Prench  Republic,  "if  he  shall  deem  it  expedient  and  consistent  with 
the  interest  of  the  United  States,"  and  "  to  revoke  such  order,  when- 
ever, in  his  opinion,  the  interest  of  the  United  States  shall  require  ;  " 
by  the  act  of  December  19,  1806,  to  suspend,  for  a  named  time,  the 
operation  of  the  non-importation  act  of  the  same  year,  "  if  in  his 
judgment  the  public  interest  should  require  it ; "  by  the  act  of  iMay 
1,  1810,  to  revive  a  former  act,  as  to  Great  Britain  or  France,  if 
either  country  had  not,  by  a  named  day,  so  revoked  or  modified  its 
edicts  as  not  "  to  violate  the  neutral  commerce  of  the  United  States ;  " 
by  the  acts  of  March  3,  1815,  and  May  31,  1830,  to  declare  the  repeal, 
as  to  any  foreign  nation,  of  the  several  acts  imposing  duties  on  the 
tonnage  of  ships  and  vessels,  and  on  goods,  wares,  and  merchandise 
imported  into  the  United  States,  when  he  should  be  "  satisfied  "  that 
the  discriminating  duties  of  such  foreign  nations,  "  so  far  as  they 
operate  to  the  disadvantage  of  the  United  States,"  had  been  abolished ; 
by  the  act  of  INfarch  6,  1866,  to  declare  the  provisions  of  the  act  for- 
bidding the  importation  into  this  country  of  neat  cattle  and  the  hides 
of  neat  cattle  to  be  inoperative,  "whenever  in  his  judgment"  their 
importation  "  may  be  made  without  danger  of  the  introduction  or 
spread  of  contagious  or  infectious  disease  among  the  cattle  of  the 
^  United  States;  "  must  be  regarded  as  unwarranted  by  the  Constitution, 
if  the  contention  of  the  appellants,  in  respect  to  the  third  section  of 
the  act  of  October  1,  1890,  be  sustained. 

,That_ Congress  cannot  delegate  legislative  power  to  the  President 
ig  a  prLnclpleTuniversally  recognized  as^ vital  to  tlie  integrity  and 
maintenance  of  the  system  of  government  ordained  by  the  Constitu- 
tion. The  act  of  October  1,  1890,  in  the  particular  under  considera- 
^tion,  is_not  inconsistent  with^that  princjjjla.^  It  does  not,  in  any  real 
sense,  invest  the  President  with  the  power  of  legislati^Tj  I'or  the 
purpose  of  securing  reciprocal  trade  with  countries  producing  and 


SECT.  I.] 


FIELD    V.    CLARK. 


99 


exporting  sugar,  molasses,  coffee,  tea,  and  hides,  Congress  It.-'elf  de- 
termined tliat  the  provisions  of  the  act  of  Octobtr  1,  1890,  peri^uitting 
the  free  introduction  of  such  articles,  should  be,  S'uspended  as  to  any- 
country  producing  and  exporting  them,  that  impos'i^/J;  exactions  :and 
duties  on  the  agricultural  ancl  other  products  of  the  .United  StabtS, 
which  the  President  deemed,  that  is,  which  he  found  to  be^,  i'£oiprocja.Uy- 
unequal  and  unreasonable.  Congress  itself  prescribed,  J-n^-naYn.niie. 
the  duties  to  be  levied,  collected^ andj)aid,  on  sugar,  molasses,  coffe^, 
Tea,  or  hides,  produced  by  or 'exported  from  such  designated  country, 
"while  the  suspension  lasted.  Nothing  "involving  the  expediency  or 
the  Just  operation  of  suchlegislation  was  left  to  the  determination  of 
■  the  President.  The  words,~"  he  Inay'deem^'^  in^theTETrd  sectioii^of 
course,  implied  that  the  President  would  examine  the  commercial 
regulations  of  other  countries  producing  and  exporting  sugar,  mo- 
lasses, coffee,  tea,  and  hides,  and  form  a  judgment  as  to  whether  they 
were  reciprocally  equal  and  reasonable,  or  the  contrary,  in  their  effect 
upon  American  products.  But  when  he  ascertained  the  fact  that 
duties  and  exactions,  reciprocally  unequal  and  unreasonable,  were 
imposed  upon  the  agricultural  or  other  products  of  the  United  States 
by  a  country  producing  and  exporting  sugar,  molasses,  coffee,  tea,  or 
hides,  it  became  his  duty  to  issue  a  proclamation  declaring  the  sus- 
pension, as  to  that  country,  which  Congress  had  determined  should 
occur.  He  had  no  discretion  in  the  |vr&mises  except,  -iu  respecl. 
to  the  duration  of  the  suspension  so  ordered.  But  that  related  only 
tcmie  enforcement  of  the  ~polTcy~^established  by  Congress.  As  the_ 
suspension  jvas  abaoLutely  required^  when  the  President  ascertained 
the"  existence  of  a  particular  fact,  it  cannot  be  said  that  in  ascer- 
taining that  fact  and  iii  issuing  his  proclamation,  m  obedience  to  the 
legislative  will,  he  exercised  the  function_of  m ak ing  laws.  Legisha- 
tive  power  was  exercised  when  Congress  declare^TTliatJiE'-Siisjiension.j 
should  take  effect  upon  a  named  contingencyT  What  the  President 
was  required  to  do  was  simply  in  execution  of  the_3ct3iJC£illgress.i 
^was  not  the  makingjp^Jaw.  ~He  wasjhe  mere  agent  of  the  law- 
niaking  department  to  ascertain  and  clecTare_tlie_ex£.nLjipon  which  its 
expresseH  wTETwas  to  take  effect?  It  was  a  part  of  the  law  itself  as 
it  left  the  hands  of  CongressThat  the  provisions,  full  and  complete  j 
in  themselves,  permitting  the  free  introduction  of  sugars,  molasses, 
coffee,  tea,  and  hides,  from  particular  countries,  should  be  suspended, 
in  a  given  contingency,  and  that  in  case  of  such  suspensions,  certain 
duties  should  be  imposed. 

"The  true  distiiictionj"  as  Judge  Kanney,  speaking  for  the  Supreme 
Court  of  Ohio,  has  well  said,  "  is  between  the  delegation  of  power  to 
make  the  law,  which  necessarily  involves  a  discre^tion~~as  to  w^hat  it 
^all  be,^aiii^  conferring  authority  or  discretion  as  to  its  executjon7^_j 
be  exercised  under. and  in  pursuance  of  the  law.  The  first  cannot  bei 
done;  to  jthe  latter  novalT3__ohiection  canbe  made."  Cincinnati, 
Wilmington,  &c.  R.  Il7T3o.  v.  Commissioners,  1  Ohio  St.  88.    In  INIoers  v. 


V 


100  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

City  of  Reading,  21  Pean.^  St.  188,  202,  the  language  of  the  court  was  : 
/V  *'  Half  the  statutes  on  our  booksjiigJiLthe_alternative,  depending  oo^ 
the- discretion  Gi-'G07ue  person  or  persons  to  whom  is  confided_the 
^'Utybf  detenniiiir^vhether  the  proper  occasion  exists  for  executing 
TlTciii.     But  it  Cannot  be  said  that  the^exercise  of  such  discretion  is 
1FJ5e',"maki'ng  of' the  Law."     So,  in  Locke's  Appeal,  72  Penn.  St.  491, 
;4S8:  '"^  Tj^J^a'ssert  that~a  law  is  less  than  a  law,  because  it  is  made  to 
.depend  on  a  future  event  or  act,  is  to  rob  the  legislature  of  the  power 
[to  act  wisely  for  the  public  welfare  whenever  a  law  is  passed  relating 
to  a  state  of  affairs  not  yet  developed,  or  to  things  future  and  impos- 
sible to  fully  know."     The  proper  distinction  the  court  said  was  this  : 
"The  legislature  cannot  delegate  its  power  to  make  a  law;  but jt  can 
make  a  law  to  delegate  a  power  to  determine  some  fact  or^tate  of 
things  upoTTwhich  "the  law  makesT^or  tntends  to  make,  its  own  action 
"Hepend.     To  deny  this  would  be  to  stop  the  wheels  of  government. 
There  are  many  things  upon  which  wise  and  usefuljegislation  musf^ 
depend  which  cannot  be  knowji  to  the^law-making,  power,  and  must, 
therefore,  be  a  subject  of  inquiry  and  determination  outside  of  the 
halls  of  legislation." 

,'     What  has  been  said  is  equally  applicable  to  the  objection  that  the 
'  third  section  of  the  act  invests  the  President  with  treaty  making 
/  power. 

The  court  is  of  opinion  that  the  third  section  of  the  act  of  October 
1,  1890,  is  not  liable  to  the  objection  that  it  transfers  legislative^  and 
treaty  making  power  to  the  President.  Even  if  it  were,  it  would  not, 
by  any  means,  follow  that  other  parts  of  the  act,  those  which  directly 
imposed  duties  upon  articles  imported,  would  be  inoperative.  But 
we  need  not  in  this  connection  enter  upon  the  consideration  of  that 
question. 

Third.  The  act  of  October  1,  1890,  c.  1244,  sec.  1,  par.  231, 
"  Schedule  E  —  Sugar,"  provides  that  "  on  and  after  July  first, 
eighteen  hundred  and  ninety-one,  and  until  July  first,  nineteen  hun- 
dred and  five,  there  shall  be  paid,  from  any  moneys  in  the  Treasury 
not  otherwise  appropriated,  under  the  provisions  of  section  three 
thousand  six  hundred  and  eighty-nine  of  the  Revised  Statutes,  to  the 
producer  of  sugar  testing  not  less  than  ninety  degrees  by  the  polari- 
scope,  from  beets,  sorghum,  or  sugar-cane  grown  within  the  United 
States,  or  from  maple  sap  produced  within  the  United  States,  a 
bounty  of  two  cents  per  pound;  and  upon  such  sugar  testing  less 
than  ninety  degrees  by  the  polariscope,  and  not  less  than  eighty  de- 
grees, a  bounty  of  one  and  three-fourths  cents  per  pound,  under  such 
rules  and  regulations  as  the  Commissioner  of  Internal  Revenue,  with 
the  approval  of  the  Secretary  of  the  Treasury,  shall  prescribe."  26 
Stat.  567,  583. 

Appellants  contend  that  Congress  has  no  power  to  appropriate 
money  from  the  Treasury  for  the  payment  of  these  bounties,  and 
that  the  provisions  for  them  have  such  connection  with  the  system 


SECT.  I.]  FIELD   V.    CLARK.  101 

established  by  the  act  of  1890  that  the  entire  act  must  be  held  in- 
operative and  void.  The  question  of  constitutional  power  thus  raised 
depends  principally,  if  not  altogether,  upon  the  scope  and  effect  of 
that  clause  of  the  Constitution  giving  Congress  power  "  to_lay_and  j 
collect  taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and  pro- 
vide for  the  common  defence  and  general  welfare^  of  the  United  | 
States."  Art.  1,  sec.  8.  It  would  be  difficult  to  suggest  a  question  of 
larger  importance,  or  one  the  decision  of  which  would  be  more  far- 
reaching.  But  the  argument  that  the  validity  of  the  entire  act  de- 
pends upon  the  validity  of  the  bounty  clause  is  so  obviously  founded 
in  error  that  we  should  not  be  justified  in  giving  the  question  of  con- 
stitutional power,  here  raised,  that  extended  examination  which  a 
question  of  such  gravity  would,  under  some  circumstances,  demand. 
Even  if  the  position  of  the  appellants  with  respect  to  the  power  of 
Congress  to  j)ay  these  bounties.lwere  sustained,  it  is  clear~tTiat  The 

, parts  of  the  act  in  whicTi  they^are  interested,  namely^_those  laying 

.duties  upon  articles  imported,  would  remain  in  force.  "  It  is  an  ele-i 
mentary  principle,"  this  court  has  said,  "  that  fhe.  same^]stativfce~ina'y 
be  m  part  constitutional  and  in  partjinconstitutionalf  and  that_if_the! 

_parts  are  wholly  independent  of'each  other,  that  which  is  constitu^^; 

^tional  may  stand_while  tTiat  whTch  is  unconstitutional  will  be  re^ 
jected."  Allen  v.  Louisiana,  103  U.  S.  80,  83.  And  i^Hiinting'tba 
^inVorthen,  120  U.  S.  97,  102,  Mr.  Justice  Field,  speaking  for  the 
court,  said  :  "  It  is  only  when  different  clauses  of  an  act  are  so  de\ 
pendent  upon  each  other  that  it  is  evident  the  legislature  would  not 
have  enacted  one  of  them  without  the  other  —  as  when  the  two  things 
provided  are  necessary  parts  of  one  system  —  that  the  whole  act  will' 
fall  with  the  invalidity  of  one  clause.  When  there  is  no  such  con 
nection  and  dependency,  the  act  will  stand,  though  different  parts  of ; 

.  it  are  rejected."     It  cannot  be  said  to  be  evident  that  the  provisionVs 
imposing  duties  on  imported  articles  are  so  connected  with  or  de-  \ 
pendent  upon  those  giving  bounties  upon  the  production  of  sugars  in   I 
this  country  that  the  former  would  not  have  been  adopted  except  iry^ 
connection  with  the  latter.     Undoubtedly,  the  object  of  the  act  was 
not  only  to  raise  revenue  for  the  support  of  the  government,  but  to 
so  exert  the  power  of  laying  and  collecting  taxes  and  duties  as  to 
encourage  domestic  manufactures  and  industries  of  different  kinds, 
upon  the  success  of  which,  the  promoters  of  the  act  claimed,  mate- 
rially depended  the  national  prosperity  and  the  national  safety.     But 
it  cannot  be  assumed,  nor  can  it  be  made  to  appear  from  the  act,  that 
the  provisions  imposing  duties  on  imported  articles  would  not  have 
been  adopted  except  in  connection  with  the  clause  giving  bounties  on 
the  production  of  sugar  in  this  country.     Tliese  different  parts  of  the  ' 
act,  in  respect  to  their  operation,  have  no  legal ^onnectTou  whatever 
with  each  other.     They  are  entirely  separable  in  their  nature^aiid',^!!/ 
law,  are  wlTpttX/dependent  of  each  other.     One  relates  to  the  imposi-'] 
tion  of  duties  upon  imported  articles ;  the  other,  to  the  appropriation  / 

; 


102  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

lof  money  from  the  Treasury  for  bounties  on  articles  produced  in  this 

<;  country.      While,  in  a  general  sense,  both  may  be  said  to  be  parts  of 

a  system,  neither  the  words  nor  tlie  general  scope  of  the  act  justities 

the  belief  that  Congress  intended  they  should  operate  as  a  whole,  and 

not  separately  for  the  purpose  of  accomplishing  the  objects  for  which 

they  were  respectively  designed.    Unless  it  be  impossible  to  avoid  it, 

la  general  revenue  statute  should  never  be  declared  inoperative  in  all 

/  its  parts  because  a  particular  part  relating  to  a  distinct  subject  may 

/  be  invalid.     A  different  rule   might  be  disastrous  to  the  financial 

operations  of  the  government,   and  produce  the  utmost   confusion 

in  the  business  of  the  entire  country. 

We  perceive  no  error  in  the  judgments  below,  and  each  is 

Jffirmed.^ 


re 


Section  II.  —  The  Executive  Department. 

MISSISSIPPI  V.   JOHNSON". 
4  Wallace,  475.     1866. 

Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  court. 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of 
Mississippi,  for  leave  to  file  a  bill  in  the  name  of  the  State,  praying 
this  court  perpetually  to  enjoin  and  restrain  Andrew  Johnson,  Presi- 
dent of  the  United  States,  and  E.  0.  C.  Ord,  general  commanding  in 
the  District  of  Mississippi  and  Arkansas,  from  executing,  or  in  any 
manner  carrying  out,  certain  acts  of  Congress  therein  named. 

The  acts  referred  to  are  those  of  March  2d  and  March  23d,  1867, 
commonly  known  as  the  Reconstruction  Acts. 

The  Attorney-General  objected  to  the  leave  asked  for,  upon  the 
ground  that  no  bill  which  makes  a  President  a  defendant,  and  seeks 
an  injunction  against  him  to  restrain  tiie  performance  of  his  duties  as 
President,  should  be  allowed  to  be  filed  in  this  court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the  objec- 
tion, without  expressing  any  opinion  on  the  broader  issues  discussed 
in  argument,  whether  in  any  case,  the  President  of  the  United 
States  may  be  required,  by  the  process  of  this  court,  to  perform  a 
purely  ministerial  act  under  a  positive  law,  or  may  be  held  amenable, 
in  any  case,  otherwise  than  by  impeachment  for  crime. 

1  Mr.  Justice  Lamar  delivered  a  disseutiug  opinion,  in  which  Mr.  Chief  Jus- 
tice Fuller  concurred. 


SECT.  II.] 


MISSISSIPPI    V.    JOHNSON. 


103 


^ 


The  single  point  which  requires  consideration   is  this :  Can  the 
President  be  restrained  by  injunction  from  carrying  into  effect  an  act  ^:> 
of  Congress  alleged  to  be  unconstitutional  ? 

It  is'assumed  by  the  counsel  for  the  State  of  Mississippi,  that  the 
President,  in  the  execution  of  the  Reconstruction  Acts,  is  required  to 
perform  a  mere  ministerial  duty.  In  this  assumption  there  is,  we 
think,  a  confounding  of  the  terms  ministerial  and  executive,  which 
are  by  no  means  equivalent  in  import. 

A  ministerial  duty,  the  performance  of  which  may,  in  proper  cases, 
be  required  of  the  head  of  a  department,  by  judicial  process,  is  one  in 
respect  to  which  nothing  is  left  t^  d|scj;etion.  It  is  a  simple,  definite 
duty,  arising  under  conditions  admitted  or  proved  to  exist,  and  im- 
posed by  law. 

The  case  of  Marbury  v.  Madison,  Secretary  of  State,  1  Cranch,  137, 
furnishes  an  illustration.  A  citizen  had  been  nominated,  confirmed, 
and  appointed  a  justice  of  the  peace  for  the  District  of  Columbia,  and 
his  commission  had  been  made  out,  signed,  and  sealed.  Nothing 
remained  to  be  done  except  delivery,  and  the  duty  of  delivery  was 
imposed  by  law  on  the  Secretary  of  State.  It  was  held  that  the  per- 
formance of  this  duty  might  be  enforced  by  mandamus  issuing  from 
a  court  having  jurisdiction. 

So  in  the  case  of  Kendall,  Postmaster-General  v.  Stockton  & 
Stokes,  12  Pet.  527,  an  act  of  Congress  had  directed  the  Postmaster- 
General  to  credit  Stockton  &  Stokes  witli  such  sums  as  the  Solicitor 
of  the  Treasury  should  find  due  to  them ;  and  that  ofiicer  refused  to 
credit  them  with  certain  sums,  so  found  due.  It  was  held  that  the ! 
crediting  of  this  money  was  a  mere  ministerial  duty,  the  performance; 
of  which  might  be  judicially  enforced. 

In  each  of  these  cases  nothing  was  left  to  discretion.  There  was 
no  room  for  the  exercise  of  judgment.  The  law  required  the  per- 
formance of  a  single  specific  act ;  and  that  performance,  it  was  held, 
might  be  required  by  mandamus. 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the  "^ 
power  to  see  that  the  laws  are  faithfully  executed,  and  among  these 
laws  the  acts  named  in  the  bill.  By  the  first  of  these  acts  he  is 
required  to  assign  generals  to  command  in  the  several  military  dis- 
tricts, and  to  detail  sufficient  military  force  to  enable  such  ofiicers  to 
discharge  their  duties  under  the  law.  By  the  supplementary  act, 
other  duties  are  imposed  on  the  several  commanding  generals,  and 
these  duties  must  necessarily  be  performed  under  the  supervision  of 
the  President  as  commander-in-chief.  The  duty  thus  imposed  on  the 
President  is  in  no  just  sense  ministerial.  It  is  purely  executive  and 
political.  ^ 

An  attempt  on  the  part  of  the  judicial  department  of  the  govern- 
ment to  enforce  the  performance  of  such  duties  by  the  President  might 
be  justly  characterized,  in  the  language  of  Chief  Justice  Marshall,  as 
"  an  absurd  and  excessive  extravagance." 


(( 


104  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

f  It  is  true  that  in  the  instance  before  us  the  interposition  of  the 
court  is  not  sought  to  enforce  action  by  the  Executive  under  con- 
stitutional legislation,  but  to  restrain  such  action  under  legislation 
alleged  to  be  unconstitutional.  But  we  are  unable  to  perceive  that 
this  circumstance  takes  the  case  out  of  the  general  principles  which 
forbid  judicial  interference  with  the  exercise  of  Executive  discretion. 
It  was  admitted  in  the  argument  that  the  application  now  made 
to  us  is  without  a  precedent ;  and  this  is  of  much  weight  against  it. 
/  Had  it  been  supposed  at  the  bar  that  this  court  would,  in  any  case, 
'interpose  by  injunction,  to  prevent  the  execution  of  an  unconstitu- 
tional act  of  Congress,  it  can  hardly  be  doubted  that  applications  with 
that  object  would  have  been  heretofore  addressed  to  it. 
Occasions  have  not  been  wanting. 

The  constitutionality  of  the  act  for  the  annexation  of  Texas  was 
vehemently  denied.  It  made  important  and  permanent  changes  in 
the  relative  importance  of  States  and  sections,  and  was  by  many 
supposed  to  be  pregnant  with  disastrous  results  to  large  interests  in 
particular  States.  But  no  one  seems  to  have  thought  of  an  applica- 
tion for  an  injunction  against  the  execution  of  the  act  by  the 
President. 

And  yet  it  is  difficult  to  perceive  upon  what  principle  the  applica- 
tion now  before  us  can  be  allowed  and  similar  applications  in  that  and 
other  cases  have  been  denied. 

The  fact  that  no  such  application  was  ever  before  made  in  any  case 
indicates  the  general  judgment  of  the  profession  that  no  such  appli- 
cation should  be  entertained. 

It  Avill  hardly  be  contended  that  Congress  can  interpose,  in  any 
case,  to  restrain  the  enactment  of  an  unconstitutional  law ;  and  yet 
how  can  the  right  to  judicial  interposition  to  prevent  such  an  enact- 
ment, when  the  purpose  is  evident  and  the  execution  of  that  purpose 
certain,  be  distinguished,  in  principle,  from  the  right  to  such  inter- 
position against  the  execution  of  such  a  law  by  the  President  ? 

The  Congress  is  the  legislative  department  of  the  government ;  the 
President  is  the  executive  department.  Neither  can  be  restrained  in 
its  action  by  the  judicial  department ;  though  the  acts  of  both,  when 
performed,  are,  in  proper  cases,  subject  to  its  cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon  con- 
sideration of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed.  If  the 
President  refuse  obedience,  it  is  needless  to  observe  that  the  court  is 
without  power  to  enforce  its  process.  If,  on  the  other  hand,  the 
President  complies  with  the  order  of  the  court  and  refuses  to  execute 
the  Acts  of  Congress,  is  it  not  clear  that  a  collision  may  occur  be- 
tween the  executive  and  legislative  departments  of  the  govern- 
ment ?  May  not  the  House  of  Eepresentatives  impeach  the  President 
I  for  such  refusal?  And  in  that  case  could  this  court  interfere,  in 
behalf  of  the  President,  thus  endangered  by  compliance  with   its 


J 


SECT.  II.]  STATE  V.    STONE.  105 

mandate  and  restrain  by  injunction  the  Senate  of  the  United  States 
from  sitting  as  a  court  of  impeachment  ?  Would  the  strange  spectacle 
be  offered  to  the  public  world  of  an  attempt  by  this  court  to  arrest 
proceedings  in  that  court  ? 

These  questions  answer  themselves. 

It  is  true  that  a  State  may  file  an  original  bill  in  this  court.  And 
it  may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against 
the  United  States.  But  we  are  fully  satisfied  that  this  court  has 
no  jurisdiction  of  a  bill  to  enjoin  the  President  in  the  performance 
of  his  official  duties;  and  that  no  such  bill  ought  to  be  received 
by  us. 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if 
the  relief  sought  cannot  be  had  against  Andrew  Johnson,  as  Presi- 
dent, it  may  be  granted  against  Andrew  Johnson  as  a  citizen  of 
Tennessee.  But  it  is  plain  that  relief  as  against  the  execution  of  an 
act  of  Congress  by  Andrew  Johnson,  is  relief  against  its  execution  by 
the  President.  A  bill  praying  an  injunction  against  the  execution  of 
an  act  of  Congress  by  the  incumbent  of  the  Presidential  office  cannot 
be  received,  whether  it  describes  him  as  President  or  as  a  citizen  of  a 
State. 

The  motion  for  leave  to  file  the  bill  is,  therefore,  Denied. 


STATE  EX  REL.  V.  STONE. 

120  Missouri,  428.     1894. 

Sheewood,  J.     The  relator  in  this  case,  Edward  J.  Eobb,  was  em- 
ployed by  David  R.  Francis,  then  Governor  of  the  State,  as  counsel 
on  behalf  of  the  State  in  the  case  of  The  State  of  Missouri  v.  Louis 
Ulrich,  at  that  time  pending  in  the  Supreme  Court  of  the  United 
States.     This  employment  had  its  origin  in  an  act  of  the  thirty-sixth 
General  Assembly,  approved  March  25,  1891,  which  authorized  and     J^ 
empowered  such  employment  to  be  made,  at  and  for  a  sura  not  ex-    t/^ 
ceeding  the  sura  of  $1500;    all  disbursements  out  of  the  fund  thus        '^ ^ 
created  to  be  made  upon  the  order  of  the  Governor.     By  an  act 
approved  March  31,  1893,  the  General  Assembly  reappropriated  said 
amount  for  the  purpose  aforesaid,  which  act  provided  that  all  dis- 
bursements under  this  section  should  be  made  by  order  of  the  Gov- 
ernor, and  that  counsel  fees  should  be  paid  only  on  determination  of 
suit. 

The  sum  which  David  R.  Francis,  then  Governor,  agreed  to  pay\ 
relator  for  his  services  as  counsel  in  that  cause  was  the  said  sum  of  \ 
$500,  in  consideration  of  which  sum  relator  agreed  to  represent  the  I 
State  as  counsel  in  said  cause  until  the  determination  thereof.    After 


106  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

thus  entering  into  such  contract,  relator  duly  performed  all  of  its 
conditions  on  his  part  and  discharged  his  duty  as  counsel  for  the 
State  thereunder,  until  the  final  determination  of  said  cause,  which 
resulted  in  Ulrich  dismissing  his  appeal  therein  on  the  fifteenth  of 
May,  1893. 

'  No  part  of  the  amount  appropriated  by  the  General  Assembly  for 
the  payment  of  counsel  fees  and  agreed  to  be  paid  relator,  has  ever 
been  paid  him.  On  the  twenty-second  of  August,  1893,  relator  pre- 
sented his  said  contract  with,  and  claim  against,  the  State  of  Missouri 
to  Governor  Wm.  J.  Stone,  exhibiting  to  him  at  the  same  time  all 
necessary  papers,  etc.,  and  asked  that  said  sum  of  $500  be  jjaid 
to  relator,  but  which  sum  said  Governor  neglected  and  refused  to 
order  to  be  paid  to  relator.  Upon  these  facts  thus  presented  to  the 
petition,  relator  prays  that  an  alternative  writ  of  mandamus  issue 
directed  to  the  Governor,  commanding  him,  etc.  Waiving  the 
issuance  of  the  alternative  writ,  the  Governor  has  entered  his  appear- 
ance herein,  and  by  his  counsel  has  filed  a  general  demurrer  to  re- 
lator's petition,  to  the  effect  that  the  petition  does  not  state  facts 
sufficient,  etc. 

As  the  petition  states  a  good  contract  with,  and  cause  of  action 
against,  the  State,  and  the  demurrer  admits  the  allegations  of  the 
petition  to  be  true,  the  only  question  for  determination  is,  whether 
the  respondent  is  amenable  to  the  process  of  this  court  in  a  case  of 
this  sort;  in  other  words,  whether  this  court  \\2i5  jurisdiction  to  en- 
tertain this  application  made  by  relator.  The  inquiry  thus  suggested 
brings  into  prominence  article  3  of  our  constitution  by  which  it  is 
provided  that :  "  The  powers  of  government  shall  be  divided  into 
three  distinct  departments  —  the  legislative,  executive,  and  judicial 
—  each  of  which  shall  be  confided  to  a  separate  magistracy,  and  no 
person,  or  collection  of  persons,  charged  with  the  exercise  of  powers 
properly  belonging  to  one  of  those  departments,  shall  exercise  any 
power  properly  belonging  to  either  of  the  others,  except  in  the 
instances  in  this  constitution  expressly  directed  or  permitted." 

In  this  instance  we,  constituting  a  portion  of  the  judicial  depart- 
/ment  of  the  government,  are  called  upon  to  exercise,  or  what  amounts 
to  the  same  thing,  to  control  the  exercise  of  powers  belonging  exclu- 
sively to  the   executive  department  of  that  government.      To  such 
action  on  our  part  the  organic  law  interposes  an  insuperable  barrier. 
\\\  addition  to  the  provisions  of  the  organic  law  quoted,  that  instru- 
I  ment  also  declai-es  that :    "  The  supreme  executive  power  shall  be 
I  vested  in  a  chief  magistrate,  who  shall  be  styled  '  the  Governor  of 
the  State  of  Missouri.' "    Const.,  art.  5,  sec.  4.     Section  6  of  the  same 
article  requires  tliat  "the  Governor  shall  take  care  that  the  laws  are 
.  .  .  faithfully  executed."    Of  the  same  article,  section  1  provides  that 
the  Governor  ''  shall  perform  such  duties  as  may  be  prescribed  by 
law."     And  section  6  of  article  14  as  a  prerequisite  to  his  entering 
on  the  duties  of  his  office,  prescribes  that  he  "  take  and  subscribe  an 


SECT.  II.] 


STATE  V.    STONE. 


107 


oath  to  support  the  Constitution  of  the  United  States  and  of  this 
State,  and  to  demean  himself  faithfully  in  office." 

Under  these  plain  and  comprehensive  provisions,  it  must  be  appar- 
ent that  any  duty  " ^^rei-cni^etZ  bi/  law  "  for  the  Governor  to  perform,  i 
is  as  much  part  and  parcel  of  his  executive  duties  as  though  made  so; 
by  the  most  solemn  language  of  the  Constitution  itself. 

Conceding  the  validity  of  any  given  law,  the  fact  that  the  duties  * 
which  it  prescribes  are  merely  vilnisterial  cannot  take  tliem  out  of 
the  domain  of  executive  duties  nor  make  them  any  the  less  those 
which  "  properly  belong  "  to  the  executive  department  of  the  govern- 
ment. And  should  we  by  our  process  be  able  to  compel  the  perform- 
ance by  the  Governor  of  such  duties,  we  would  in  effect  and  to  all 
intents  and  purposes  he  perfonning  those  duties  ourselves;  for  there 
can  be  no  substantial  distinction  drawn  between  our  assumption  of 
duties  pertaining  to  another  department  of  the  government,  and  our 
intervention  resulting  in  the  compulsory  performance  of  such  duties  ; 
qui  faclt  per  aliuni,  etc. 

Kor  does  the  fact  that  any  duty  which  the  law  prescribes  for  the 
Governor  to  perform,  mirjht  have  been  assigned  to  some  other  officer 
who  would  have  been  amenable  to  the  process  of  this  court,  alter  the 
conclusion  to  be  reached  or  vary  the  result;  for  the  fact  would  still 
remain  that  the  act  required  to  be  done  was  nevertheless  an  official 
one,  assigned  by  the  legislative  department  of  the  government  to  be 
performed  by  the  executive  department,  eo  nomine  by  the  Governor 
and  by  him  alone,  and  therefore  if  he  is  not  bound  to  obey  the  law 
in  question  as  Governor,  he  is  not  bound  to  act  at  all,  since  he  only 
assumed  to  obey  the  laws  in  his  gubernatorial  capacity  and  not  other- 
wise or  elsewhere.  See  Rice  v.  Austin,  infra.  So  that  we  should 
manifestly  be  trenching  on  the  exclusive  powers  of  two  separate 
magistracies  of  the  government,  should  we  assume  to  exercise  juris- 
diction in  this  case. 

Abundant  authority  establishes  the  position  here  taken  that  man- 
damus will  not  issue  to  the  Governor  to  compel  the  performance  of 
any  duty  pertaining  to  his  office,  whether  political  or  merely  minis- 
terial ;  whether  commanded  by  the  constitution  or  by  some  law 
passed  on  the  subject.  People  ex  rel.  v.  Governor,  29  Mich.  320 ; 
Hawkins  v.  Governor,  1  Ark.  570  ;  State  ex  rel.  v.  Warmoth,  22  La. 
Ann.  1 ;  State  ex  rel.  v.  Warmoth,  24  La.  Ann.  351 ;  State  ex  rel.  v. 
Board,  42  La.  Ann.  647 ;  Mauran  v.  Governor,  8  R.  I.  192 ;  Rice  v. 
Austin,  19  Minn.  103;  Dennett,  Petitioner,  32  Me.  508;  Railroad 
V.  Lowry,  61  Miss.  102 ;  State  v.  Governor,  25  X.  J.  L.  331  ;  State 
ex  rel.  v.  Drew,  17  Fla.  67;  Hovey  v.  State  ex  rel,  127  Ind.  588 
(which  distinguishes  or  virtually  overrules  Gray  v.  State  ex  rel..  72 
Ind.  567);  People  ex  rel.  v.  Bissell,  19  111.  229;  People  ex  rel.  v. 
Yates,  40  111.  126;  People  ex  rel.  v.  Cullom,  100  111.  472;  Turnpike 
Co.  V.  Brown,  8  Baxt.  (Tenn.)  490;  Bates  v.  Taylor,  87  Tenn.  319; 
State  ex  rel.  v.  Towns,  8  Ga.  360;  Railroad  v.  Randolph,  24  Tex. 


h~^^ 


103  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

317;  Appeal  of  Hartranft,  Governor,  85  Penn,  St.  433;  Mississippi 
V.  Johnson,  4  Wall.  475.* 

There  are  many  respectable  authorities,  however,  which  maintain 
views  diametrically  opposed  to  those  here  advanced.  Most  of  them 
will  be  found  collated  in  the  brief  filed  for  relator.  Railroad  v. 
Moore,  36  Ala.  371;  Middleton  v.  Low,  30  Cal.  596;  Land  Co.  v. 
Routt,  17  Col.  156;  Gray  v.  State  ex  rel.,  72  Ind.  567;  IMagruder 
V.  Swann,  25  Md.  173 ;  Groome  v.  Gwinn,  43  Md.  572 ;  Chumasero  v. 
Potts,  2  Mont.  242 ;  State  ex  rel.  v.  Blasdel,  4  Nev.  241 ;  State  ex  rel. 
V.  Governor,  5  Ohio  St.  528  ;  State  ex  rel.  v.  Nicholls,  7  S.  Rep.  (La.) 
738.  In  addition  to  those  cited,  see  Martin  v.  Ingham,  38  Kan.  641 ; 
State  V.  Thayer,  47  N.  W.  Rep.  704.^ 

The  fact  that  the  Governor  has  voluntarily  submitted  himself  to 
the  jurisdiction  of  this  court  has  been  pressed  upon  our  attention  as  a 
reason  why  we  should  pass  on  or  adjudicate  the  question  submitted  ; 
and  cases  have  been  cited,  among  them  Railroad  v.  Governor,  23  Mo. 
360,  as  showing  that  where  the  Governor  does  not  claim  his  exemp- 
tion, then  this  court  may  adjudicate  the  matters  at  issue  and  leave 
the  Governor  to  claim  his  exemption   afterwards.      But  we  regard 
such  cases  as  wrong  in  theory  and  unsafe  and  unsound  in  practice. 
If  we  have  authority  to  render  a  judgment,  then  we  have  jurisdiction 
to  enforce  that  judgment  by  all  appropriate  process,  and  need  not  in- 
quire whether  any  exemption  from  that  process  will  be  pleaded.     If, 
\' however,  we  have  no  jurisdiction  over  the  chief  magistrate,  his  cbn- 
]ii,sent  will  not  confer  it  on  us.     We  will  not  "  assume  a  jurisdiction  if 
we  have  it  not;  "  we  will  not  sit  as  a  ytioot  court  and  pass  upon  ques- 
tions and  enter  a  judgment  thereon  which  we  are  powerless  to  enforce. 
/'  For  all  jurisdiction  implies  superiority  of  power  ;  authority  to  try 
//would  be  vain  and  idle,   without  an  authority  to  redress ;  and  the 
V  sentence  of  a  court  would  be  contemptible,  unless  that  court  had 
U  power  to  command  the  execution  of  it."     1  Cooley's  Blackstone,  242. 
As  we  do  not  possess  any  jurisdiction  over  the  Governor,  we  shall 
decline  any  further  discussion  of  this  cause,  hold  the  demurrer  well 
taken,  and  deny  the  issuance  of  the  peremptory  writ. 

All  concur. 

1  To  these  citations  may  now  be  added  People  ex  reJ.  v.  Morton,  156  N.  Y.  1.36 
(1898).— [Ed.]. 

2  Among  these  cases  should  be  cited  Harpendig  v.  Haight,  39  Cal.  189  (1870).— 
[Ed.]. 


1 


SECT.  II.]  UNITED    STATES    V.   BLACK. 

UNITED   STATES   ex   rel.    v.   BLACK. 
128  United  States,  40.     1888. 


[This  case  came  up  on  writ  of  error  to  the  Supreme  Court  of  the 
District  of  Columbia  to  review  a  judgment  of  that  court  refusing  an 
order  on  the  Commissioner  of  Pensions  to  show  cause  why  a  writ  of 
mandamus  should  not  issue,  requiring  him  to  increase  the  pension  of 
the  petitioner.  The  opinion  is  not  based  on  the  particular  facts  of 
the  case.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  amenability  of  an  executive  officer  to  the  writ  of  mandamus 
to  compel  him  to  perform  a  duty  required  of  him  by  law  was  dis- 
cussed by  Chief  Justice  Marshall  in  his  great  oi^inion  in  the  case  of 
Marbury  v.  Madison,  1  Crancli,  137;  and  the  radical  distinction  was  | 


there   pointed  out  between  acts  performed  by  such  officers  in  the  \ 
exercise  of  their  executive  functions,  which  the  Chief  Justice  calls  '; 
political  acts,  and  those  of  a  mere  ministerial  character;  and  the   , 
rule  was  distinctly  laid  down  that  the  writ  will  not  be  issued  in  / 
the  former  class  of  cases,  but  will  be  issued  in  the  latter.     In  that 
case,  President  Adams  had  nominated,  and  the  Senate  had  confirmed 
Marbury  as  a  justice  of  the  peace  of  the  District  of  Columbia;  and 
a  commission  in  due  form  was  signed  by  the  President  appointing 
him  such  justice,  and  the  seal  of  the  United  States  was  duly  affixed 
thereto  by  the  Secretary  of  State;  but  the  commission  had  not  been 
handed  to  Marbury  when  the  offices  of  the  government  were  trans- 
ferred to  the  administration  of  President  Jefferson.     Mr.  Madison, 
the  new  Secretary  of  State,  refused  to  deliver  the  commission,  and  a 
mandamus  was  applied  for  to  this  court  to  compel  him  to  do  so. 
The  court  held  that  the  appointment  had  been  made  and  completed, 
and  that  Marbury  was   entitled  to   his  commission,   and   that   the 
delivery  of  it  to  him  was  a  mere  ministerial  act,  which  involved  no 
further  official  discretion  on  the  part  of  the  Secretary,  and  could  be 
enforced  by  mandamus.     But  the  court  did  not  issue  the  writ,  be- 
cause it  would  have  been  an  exercise  of  original  jurisdiction  which  it , 
did  not  possess.     Whilst  this  opinion  will  always  be  read  by  the  . 
student  with  interest  and  profit,  it  has  not  been  considered  as  in- 
vested with  absolute  judicial  authority  except  on  the  question  of  the 
original  jurisdiction  of  this  court.     The  decision  on  this  point  has 
made  it  necessary  for  parties  desiring  to  compel  an  officer  of  the 
government  to  perform  an  act  in  which  they  are  interested  to  resort 
to  the  highest  court  of  the  District  of  Columbia  for  redress.     It  has 
been  held  in  numerous  cases,  and  was  held  after  special  discussion 
in  the  cases  of  Kendall   v.  The  United  States,  12  Pet.  524,  and 


t 


? 


110  DEPARTMENTS    OF    GOVERNMENT.  [CHAP.  III. 

United  States  v.  Schurz,  102  U.  S.  378,  that  the  former  Circuit 
Couvt  of  the  District,  and  the  present  Supreme  Court  of  the  District 
respectively,  were  invested  with  plenary  jurisdiction  on  the  subject. 
On  this  point  there  is  no  further  question. 

The  two  leading  cases  which  authoritatively  show  when  the 
Supreme  Court  of  the  District  may,  and  when  it  may  not,  grant  a 
mandamus  against  an  executive  officer,  are  the  above  cited  cases  of 
Kendall  v.  United  States  on  the  Relation  of  Stokes,  12  Pet.  524,  and 
Decatur  v.  Paulding,  14  Pet.  497.  The  subsequent  cases  have  fol- 
lowed the  principles  laid  down  in  these,  and  do  little  more  than 
illustrate  and  apply  them.  In  the  former  case  the  mandamus  was 
granted,  and  the  decision  was  affirmed  by  this  court.  The  case  was 
shortly  this:  Stockton  &  Stokes,  as  contractors  for  carrying  the 
.Emails,  had  certain  claims  against  the  government  for  extra  services, 
which  they  insisted  should  be  credited  in  their  accounts,  and  a  con- 
troversy rose  between  them  and  the  Post  Office  Department  on  the 
subject.  Congress  passed  an  act  for  their  relief,  by  which  the 
Solicitor  of  the  Treasury  was  authorized  and  directed  to  settle  and 
adjust  their  claims,  and  make  them  such  allowances  as  upon  a  full 
examination  of  all  the  evidence  might  seem  to  be  equitable  and 
right;  and  the  Postmaster  General  was  directed  to  credit  them  with 
<J  whatever  sums  the  Solicitor  should  decide  to  be  due  them.  The 
-'  Solicitor,  after  due  investigation,  made  his  report,  and  stated  the 
sums  due  to  Stockton  &  Stokes  on  the  claims  made  by  them ;  but  the 
Postmaster  General,  Mr.  Kendall,  refused  to  give  them  credit  as 
directed  by  the  law.  This  the  court  held  he  could  be  compelled  to 
do  by  mandamus,  because  it  was  simply  a  ministerial  duty  to  be 
performed,  and  not  an  official  act  requiring  any  exercise  of  judg- 
ment or  discretion.  This  court,  through  Mr.  Justice  Thompson, 
said:  "The  act  required  by  the  law  to  be  done  by  the  Postmaster 
General  is  simply  to  credit  the  relators  with  the  full  amount  of  the 
j  award  of  the  Solicitor.  This  is  a  precise,  definite  act,  purely  minis- 
\  terial;  and  about  which  the  Postmaster  General  had  no  discretion 
y  whatever.  The  law  upon  its  face  shows  the  existence  of  accounts 
between  the  relators  and  the  Post  Office  Department.  'So  money 
was  required  to  be  paid;  and  none  could  be  drawn  from  the  Treasury 
without  further  legislative  provision,  if  this  credit  should  over- 
balance the  debit  standing  against  the  relators.  But  this  was  a 
matter  with  which  the  Postmaster  General  had  no  concern.  He 
was  not  called  upon  to  furnish  the  means  of  paying  such  balance, 
if  any  should  be  found.  He  was  simply  required  to  give  the  credit. 
This  was  not  an  official  act  in  any  other  sense  than  being  a  transac- 
tion in  the  department  where  the  books  and  accounts  were  kept;  and 
was  an  official  act  in  the  same  sense  that  an  entry  in  the  minutes  of 
a  court,  pursuant  to  an  order  of  the  court,  is  an  official  act.  There 
is  no  room  for  the  exercise  of  any  discretion,  official  or  otherwise; 
all  that  is  shut  out  by  the  direct  and  positive  command  of  the  law, 


SECT.  II.] 


UNITED    STATES   V,    BLACK. 


Ill 


and  the  act  required  to  be  done  is,  in  every  just  sense,  a  mere  min- 
isterial act." 

In  the  other  case,  Decatur  v.  Paukling,  the  mandamus  was  refused 
by  the  Circuit  Court,  and  that  decision  was  also  affirmed  by  this 
court.  The  case  was  this:  On  the  3d  of  March,  1837,  Congress 
passed  an  act  giving  to  the  widow  of  any  officer  who  had  died  in  the 
naval  service  a  pension  equal  to  half  of  his  monthly  pay  from  the 
time  of  his  death  until  her  death  or  marriage.  On  the  same  day 
Congress  passed  a  resolution  granting  a  pension  to  Mrs.  Decatur, 
widow  of  Stephen  Decatur,  for  five  years,  commencing  June  30, 
1834,  and  the  arrearages  of  the  half  pay  of  a  post  captain  from 
Commodore  Decatur's  death  to  the  30th  of  June,  1834.  IMrs.  Decatur 
applied  for  and  received  her  pension  under  the  general  law,  with  a 
reservation  of  her  rights  under  the  resolution,  claiming  the  pension 
granted  by  that  also.  The  Secretary  of  the  Navy,  acting  under  the 
opinion  of  the  Attorney  General,  decided  that  she  could  not  have 
both.  Thereupon  she  applied  for  a  mandamus  to  compel  the  Secre- 
tary to  comply  with  the  resolution  in  her  favor.  Chief  Justice 
Taney- delivered  the  opinion  of  the  court,  and  laid  down  the  law  in 
terms  that  have  never  been  departed  from.  We  can  only  quote  a 
single  passage  from  this  opinion.  The  Chief  Justice  says:  "The 
duty  required  by  the  resolution  was  to  be  performed  by  him  [the 
Secretary  of  the  Navy]  as  the  head  of  one  of  the  executive  depart- 
ments of  the  government,  in  the  ordinary  discharge  of  his  official 
duties.  In  general,  such  duties,  whether  imposed  by  act  of  Con- 
gress or  by  resolution,  are  not  mere  ministerial  duties.  The  head  of 
an  executive  department  of  the  government,  in  the  administration 
of  the  various  and  important  concerns  of  his  office,  is  continually 
required  to  exercise  judgment  and  discretion.  He  must  exercise 
his  judgment  in  expounding  the  laws  and  resolutions  of  Congress, 
under  which  he  is  from  time  to  time  required  to  act.  If  he  doubts, 
he  has  a  right  to  call  on  the  Attorney  General  to  assist  him  with 
his  counsel;  and  it  would  be  difficult  to  imagine  why  a  legal  adviser 
was  provided  by  law  for  the  heads  of  the  departments,  as  well  as  for 
the  President,  unless  their  duties  were  regarded  as  executive,  in 
which  judgment  and  discretion  were  to  be  exercised. 

"If  a  suit  should  come  before  this  court,  which  involved  the 
construction  of  any  of  these  laws,  the  court  certainly  would  not  be 
bound  to  adopt  the  construction  given  by  the  head  of  a  department. 
And  if  they  supposed  his  decision  to  be  wrong,  they  would,  of 
course,  so  pronounce  their  judgment.  But  their  judgment  upon 
the  construction  of  a  law  must  be  given  in  a  case  in  which  they  have 
jurisdiction,  and  in  which  it  is  their  duty  to  interpret  the  act  of 
Congress,  in  order  to  ascertain  the  rights  of  the  parties  in  the  cause 
before  them.  The  court  could  not  entertain  an  appeal  from  the 
decision  of  one  of  the  secretaries,  nor  revise  his  judgment  in  any 
case  where  the  law  authorized  him  to  exercise  discretion  or  judg- 


> 


r 


V 


<:i_ 


^"- 


-1 


-,\ 


112  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  IIL 

(  ment.  Nor  can  it  by  mandamus  act  directly  upon  the  officer,  and 
/  guide  and  control  his  judgment  or  discretion  in  the  matters  com- 
mitted to  his  care,  in  the  ordinary  discharge  of  his  official  duties. 
The  case  before  us  illustrates  these  principles  and  shows  the  differ- 
Ve^nce  between  executive  and  ministerial  acts."  The  Chief  Justice 
then  goes  on  to  show  that  the  decision  of  the  Secretary  of  the  Navy 
in  that  case  was  entirely  executive  and  official  in  its  character,  and 
that,  in  this  respect,  the  case  differed  entirely  from  that  of  Kendall 
V.  Stokes. 

The  principle  of  law  deducible  from  these  two  cases  is  not  difficult 
to  enounce.  The  court  will  not  interfere  by  mandamus  with  the 
executive  officers  of  the  government  in  the  exercise  of  their  ordinary 
official  duties,  even  where  those  duties  require  an  interpretation  of 
the  law,  the  court  having  no  appellate  power  for  that  purpose ;  but 
when  they  refuse  to  act  in  a  case  at  all,  or  when  by  special  statute, 
or  otherwise,  a  mere  ministerial  duty  is  imposed  upon  them,  that  is, 
a  service  which  they  aie  bound  to  perform  without  further  question, 
then,  if  they  refuse,  a  mandamus  may  be  issued  to  compel  them. 
)  Judged  by  this  rule  the  present  case  presents  no  difficulty.  The 
Commissioner  of  Pensions  did  not  refuse  to  act  or  decide.  He  did 
act  and  decide.  He  adopted  an  interpretation  of  the  law  adverse 
to  the  relator,  and  his  decision  was  confirmed  by  the  Secretary  of  the 
Interior,  as  evidenced  by  his  signature  of  the  certificate.  Whether 
if  the  law  were  properly  before  us  for  consideration,  we  should  be 
of  the  same  opinion,  or  of  a  different  opinion,  is  of  no  consequence 
in  the  decision  of  this  case.  We  have  no  appellate  power  over  the 
Commissioner,  and  no  right  to  review  his  decision.  That  decision 
and  his  action  taken  thereon  were  made  and  done  in  the  exercise  of 
his  official  functions.  They  were  by  no  means  merely  ministerial 
acts. 

The  decisions  of  this  court,  which  have  been  rendered  since  the 
cases  referred  to,  corroborate  and  confirm  all  that  has  been  said. 
The  following  are  the  most  important,  to  wit:  Brashear  v.  Mason, 
6  How.  92;  United  States  ex  rel.  Goodrich  v.  Guthrie,  17  How.  284; 
Commissioner  of  Patents  v.  Whiteley,  4  Wall.  522;  Georgia  v. 
Stanton,  6  Wall.  50;  Gaines  v.  Thompson,  7  Wall.  347;  United 
States  ex  rel.  McBride  v.  Schurz,  102  U.  S.  378;  Butterworth  v. 
Hoe,  112  U.  S.  50. 

In  the  two  last  cases  cited,  the  mandamus  was  granted ;  and  they 
were  cases  in  which  it  was  held  that  a  mere  ministerial  duty  was  to 
be  performed  by  the  officer.  In  United  States  ex  rel.  McBride  v. 
Schurz,  the  question  related  to  a  patent  for  land  claimed  by  a  pre- 
emptor.  All  the  proceedings  had  been  gone  through,  the  right  of 
the  applicant  had  been  affirmed,  the  patent  had  been  made  out  in  the 
Land  Office,  signed  by  the  President,  sealed  with  the  Land  Office 
seal,  countersigned  by  the  recorder  of  the  Land  Office,  recorded  in 
the  proper  book,  and  transmitted  to  the  local  land  officers  for  deliv- 


SECT.  III.]  CASE   OF   SUPERVISORS   OF   ELECTIONS. 


113 


ery;  but  delivery  was  refused  because  instructions  had  been  received 
from  the  Commissioner  to  return  the  patent.  The  plea  was,  that 
it  had  been  discovered  that  the  lands  belonged  to  a  town  site.  The 
court  held  that  this  was  an  insufficient  plea;  that  the  title  had 
passed  to  the  applicant,  and  he  was  entitled  to  his  patent,  subject 
to  any  equity  which  other  parties  might  have  to  the  land,  or  to  a 
proceeding  for  setting  the  patent  aside;  and  that  the  duty  of  the 
Commissioner,  or  Secretary  of  the  Interior,  had  become  a  mere  min- 
isterial duty  to  deliver  the  instrument  —  as  was  held  in  Marbury  v. 
Madison,  in  relation  to  the  commission  of  Marbury  as  justice  of  the 
peace.  Of  course,  this  case  is  entirely  different  from  the  case  now 
under  consideration. 

The  case  of  Butterworth  v.  Hoe  was  very  similar  in  principle  to 
that  of  United  States  v.  Schurz.  The  Commissioner  of  Patents  had 
decided  in  favor  of  the  right  of  one  Gill,  an  applicant  for  a  patent 
in  a  case  of  interference,  and  adjudged  that  a  patent  should  issue  to 
his  assigns  accordingly.  An  appeal  was  taken  to  the  Secretary  of 
the  Interior,  who  reversed  the  decision  of  the  Commissioner.  The 
latter  thereupon  and  for  that  reason,  refused  to  issue  a  patent.  It 
was  a  question  whether  an  appeal  lay  to  the  Secretary  of  the  Inte- 
rior, and  this  court  held  that  it  did  not,  and  that  he  had  no  juris- 
diction in  the  matter.  The  court,  therefore,  held  that  the  patent 
ought  to  be  issued  in  accordance  with  the  decision  of  the  Commis- 
sioner, and  that  the  mere  issue  of  the  patent  was  a  ministerial  matter 
for  which  a  mandamus  would  lie.  This  case,  like  that  of  United 
States  V.  Schurz,  is  unlike  the  present.  All  deliberation  had  ceased; 
the  right  of  Gill,  the  applicant,  was  adjudged;  there  was  nothing 
to  be  done  but  to  deliver  to  the  party  the  documentary  evidence  of 
his  title.  That  was  a  mere  ministerial  matter.  We  think  that  the 
mandamus  was  properly  refused  and  the  judgment  of  the  Supreme 
Court  of  the  District  is  Affirmed. 


Section  III.  —  The  Judicial  Department. 


CASE   OF   SUPERVISORS   OE  ELECTIONS. 

114  Massachusetts,  247.     1873. 

Gray,  G.  J.  This  application  [for  appointment  of  supervisors  of 
election]  is  made  under  the  St.  of  1873,  c.  376,  §  1,  which  provides 
as  follows :  "  Whenever,  prior  to  an  election,  five  legal  voters  of  any 
ward  of  a  city  shall  make  known  in  writing  to  a  justice  of  the 
Supreme  Judicial  Court,  in  term  time  or  vacation,  their  desire  to 


114  DEPARTMENTS   OF   GOVERNMENT,  [CHAP.  III. 

liave  such  election  guarded  and  scrutinized,  it  shall  be  the  duty  of 
such  justice,  upon  such  notice  as  he  shall  deem  meet,  or  without 
notice,  prior  to  such  election,  to  appoint  and  commission  two  legal 
voters  ot  sucli  ward,  who  shall  be  of  ditferent  political  parties,  and 
shall  be  known  and  designated  as  supervisors  of  election.  Before 
entering  upon  the  duties  of  their  ofhce,  the  said  supervisors  shall 
be  duly  sworn  to  the  faithful  and  impartial  discharge  of  the  same." 

As  the  application  appeared  to  involve  a  grave  question  of  consti- 
tutional law,  and  a  similar  application  might  according  to  the  terms 
of  the  statute  be  presented  to  a  justice  of  this  court  at  any  time, 
the  matter  has  been  argued  before  five  of  the  judges,  and  our  breth- 
ren who  could  not  attend  at  the  argument  have  taken  part  in  the 
consultation, 

/  The  intention  of  the  Legislature  is  clearly  expressed  that  super- 
"'visors  of  election  should  be  appointed  by  the  justices  of  this  court. 
,  The  question  is  whether  the  statute  is  constitutional. 

The  constitution,  being  the  fundamental  law  of  the  Common- 
wealth, established  by  the  people,  binds  and  controls  all  their  ser- 
vants, legislative,  executive  and  judicial.  Every  person  chosen  or 
appointed  to  any  office  is  expressly  required,  before  entering  upon 
the  discharge  of  its  duties,  to  take  an  oath  to  support  the  constitu- 
tion. And  by  the  eighteenth  article  of  the  Declaration  of  Eights  a 
frequent  recurrence  to  the  fundamental  principles  of  the  constitution 
is  declared  to  be  absolutely  necessary  to  preserve  the  advantages  of 
, liberty  and  to  maintain  a  free  government. 

The  Legislature  is  vested  by  the  constitution  with  full  power 
■and  authority  from  time  to  time  to  make,  ordain,  and  establish  all 
manner  of  wholesome  and  reasonable  orders,  laws,  statutes  and 
ordinances,  directions  and  instructions,  "so  as  the  same  be  not  repug- 
nant or  contrary  to  this  constitution,"  as  they  shall  judge  to  be  for 
the  good  and  welfare  of  this  Commonwealth,  and  for  the  governing 
and  ordering  thereof,  and  of  the  subjects  of  the  same.  Every  reas- 
onable inference  is  to  be  drawn  in  favor  of  the  validity  of  the  acts 
of  each  branch  of  the  government.  But  whenever  application  is 
made  to  the  judiciary  to  carry  into  effect  any  statute  in  a  particular 
case,  and  the  statute  in  question  appears  to  be  clearly  repugnant  to 
the  constitution,  it  is  the  duty  of  the  judges  to  obey  the  constitu- 
tion and  disregard  the  statute. 

The  people  of  Massachusetts,  warned  by  experience  of  the  incon- 
veniences and  dangers  arising  from  the  vesting  of  incompatible 
powers  in  the  same  persons  under  the  royal  government  while  this 
state  was  an  English  province,  have  made  most  careful  provision  for 
separating  the  three  great  departments  of  government,  and  for  remov- 
ing the  judiciary,  and  especially  this  court,  from  political  influences 
of  every  kind,  as  far  as  possible. 

The  final  article  of  the  Declaration  of  Rights  declares  that  "  in  the 
government  of  this  Commonwealth  the  legislative  department  shall 


SECT.  III. J      CASE  OF  SUPERVISORS  OF  ELECTIONS. 


115 


never  exercise  the  executive  and  judicial  powers  or  either  of  them; 
the  executive  shall  never  exercise  the  legislative  or  judicial  powers, 
or  either  of  them;  the  judicial  shall  never  exercise  the  executive  or 
legislative  powers,  or  either  of  them;  to  the  end  it  may  be  a  govern- 
.nient  of  laws  and  not  of  men."  The  constitution  further  expressly 
prohibits  the  judges  of  this  court  to  hold  a  seat  in  the  House  of 
Representatives,  Senate  or  Council,  or  any  other  office  or  place 
under  the  authority  of  this  Commonwealth,  except  that  of  justices  of 
the  peace  through  the  State;  and  requires  all  commissions  to  be 
signed  by  the  Governor,  and  attested  by  the  secretary  or  his  deputy, 
and  to  have  the  great  seal  of  the  Commonwealth  affixed  thereto. 

The  justices  of  this  court,  as  incidental  to  the  large  and  varied 
judicial  powers  and  jurisdiction  conferred  upon  them  by  the  consti- 
tution and  laws,  embracing  cases  criminal  and  civil,  in  common 
law,  equity,  probate,  and  divorce,  may  be  and  have  been  by  many 
statutes  authorized  to  appoint  subordinate  officers  of  various  kinds 
to  assist  in  the  performance  of  their  judicial  duties,  such  as  auditors, 
special  masters  in  chancery,  commissioners  to  take  depositions  in 
other  States  in  cases  pending  here,  commissioners  to  take  bail,  com- 
missioners for  the  partition  of  lands,  division  of  flats,  or  the  setting 
off  of  dower,  commissioners  of  sewers,  or  for  the  improvement  of 
meadows  and  low  lands,  and  commissioners  to  adjust  the  rights  of 
transportation  and  modes  of  connection  between  connecting  lines  of 
railroad,  or  to  assess  the  expenses,  as  between  different  counties, 
towns  and  other  corporations,  of  maintaining  roads  or  bridges. 
Parts  of  the  duties  performed  by  some  of  these  officers  in  carrying 
out  their  functions  are  executive  in  their  nature,  and  of  a  class 
which  might  be  imposed  by  law  upon  strictly  executive  officers. 
But  all  the  officers  above  enumerated,  when  appointed  by  the  court, 
are  by  express  requirement  or  necessary  implication  obliged  to  re- 
turn a  report  of  their  doings  to  the  court  for  its  judicial  action. 

The  judges  may  also  be  authorized  by  law,  except  so  far  as  other- 
wise expressly  provided  by  the  constitution,  to  appoint  clerks  of 
courts.  But  the  duties  of  such  clerks  are  in  no  sense  executive; 
they  are  merel}'  ministerial,  and  incident  to  the  administration  of 
justice.  On  like  grounds,  the  courts  are  authorized,  in  the  absence 
of  the  official  prosecutor,  to  appoint  a  suitable  person  to  perform  his 
duties;  and  to  appoint  all  officers  necessary  to  the  transaction  of 
their  business. 

The  courts  may  also  try  the  title  to  many  offices  by  mandamus, 
quo  warranto,  or  other  proper  process.  But  the  title  to  an  office  is  a 
right  that  has  always  been  held  to  be  a  proper  subject  of  judicial 
decision,  except  when  the  constitution  has  committed  it  to  other 
hands.  Analogous  to  this  is  the  power  conferred  on  this  court  by 
statute  to  remove  certain  officers,  and  thus  to  declare  a  forfeiture  of 
their  rights  and  a  determination  of  their  offices. 

The  power  of  naturalization  may  perhaps  be  considered  as  one  of 


116  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

the  powers  that  may  be  entrusted  by  the  Legislature  in  its  discretion 
to  one  or  another  department  of  the  government.  Before  the  adop- 
tion of  the  federal  Constitution,  it  was  habitually  exercised  by  the 
General  Court  of  Massachusetts.  Since  the  adoption  of  that  Consti- 
tution, it  has  been  vested  by  the  Congress  of  the  United  States,  with 
the  assent  of  the  State  legislatures,  in  the  judicial  tribunals  of  the 
States,  as  well  as  in  those  of  the  nation.  As  it  requires  a  final  deter- 
mination of  all  matters  of  law  and  fact  involved  in  the  admission  of 
the  applicant  to  citizenship,  it  may  appropriately  be  made  a  subject 
of  judicial  investigation  and  decision. 

The  St.  of  1873,  c.  376,  §§  2,  3,  declares  that  it  shall  be  the  duty 
of  the  supervisors  of  election  to  attend  the  ward  meetings,  to  chal- 
lenge the  vote  of  any  person  whose  qualihcations  they  doubt;  to 
remain  where  the  ballot  boxes  are  kept,  from  the  opening  of  the 
polls  until  all  the  votes  are  cast,  counted,  canvassed  and  sealed  up, 
and  the  certificates  and  returns  made  out;  to  inspect  and  scrutinize 
the  manner  of  voting  and  the  method  of  keeping  and  marking  the 
check  list;  to  count  and  canvass  every  ballot  cast,  and,  in  the  event 
of  a  disagreement  between  their  count  and  canvass  and  those  of  the 
ward  officers,  to  make  a  return  of  their  count  and  canvass  to  the 
mayor  and  aldermen. 

These  supervisors,  although  entrusted  with  a  certain  discretion  in 
the  performance  of  their  duties,  are  strictly  executive  officers.  They 
make  no  report  or  return  to  the  court  or  to  any  judge  thereof.  Their 
duties  relate  to  no  judicial  suit  or  proceeding,  but  solely  to  the  ex- 
ercise by  the  citizens  of  political  rights  and  privileges. 

We  are  unanimously  of  opinion  that  the  power  of  appointing  such 
/officers  cannot  be  conferred  upon  the  justices  of  this  court  without 
/   violating  the  constitution  of  the  Commonwealth.     We  cannot  exer- 
/    cise  this  power  as  judges,  because  it  is  not  a  judicial  function;  nor 
{/  as  commissioners,  because  the  constitution  does  not  allow  us  to  hold 
\I  any  such  office. 
.      The  statute  in  question  can  find  no  support  in  the  act  of  Congress 
of  1S71,  c.  99,  conferring  power  to  appoint  similar  officers  upon  the 
judges  of  the  Circuit  Court  of  the  United  States,  or  in  the  action  of 
those   judges   pursuant   thereto;    because   the   Constitution   of   the 
i  United  States  does  not  so  explicitly  restrain  the  judges  from  exer- 
cising executive  or  political  functions  as  does  the  constitution  of  this 
Commonwealth;  and  because  the  circuit  judges  acted  individually 
and  without  opportunity  of   conference,  and,  so  far  as  we  are  in- 
formed, without  any  question  of  constitutional  power  being  raised 
or  argued.  J^etifion  denied.^ 

1  Under  the  provisions  of  U.  S.  Const.,  Art.  II.,  Sec.  2,  IT  2,  Congress  may  author- 
ize appointment  of  supervisors  of  elections  by  circuit  courts.  Ex  parte  Siebold,  100 
U.  S.  371,  397. 


SECT.  III.]  STATE   V.   SIMONS.  /  IIT 


STATE   EX  REL.  V.  SIMONS. 

32  Minnesota,  540.     18S4. 

Mitchell,  J.  This  is  an  application  for  a  writ  of  prohibition  to 
restrain  the  respondent,  a  judge  of  the  District  Court,  from  further 
action  in  proceedings  now  pending  before  him  for  the  incorporation 
of  certain  territory  as  a  village  under  the  provisions  of  chapter  73, 
Gen.  Laws  1883.  The  contention  of  the  relator  is  that  the  act 
referred  to  is  unconstitutional,  because  it  assumes  to  delegate  purely 
legislative  powers  to  the  District  Courts  or  the  judges  thereof.  Sec- 
tion 3  of  this  act  provides  that  any  district,  sections,  or  parts  of 
sections  which  have  been  duly  surveyed  and  platted  into  lots  and 
blocks,  and  lands  adjacent  thereto,  which  said  plat  has  been  duly 
and  legally  certiiied  and  filed,  may  become  incorporated  as  a  village 
in  the  following  manner,  upon  application  to  the  judge  of  the  District 
Court  of  the  county  in  which  such  lands  are  situated.  Section  4 
provides  that  this  application  shall  be  by  petition  of  at  least  25 
electors,  —  residents  upon  the  lands  to  be  incorporated,  —  setting 
forth  the  boundaries  of  such  territory,  tlie  quantity  of  land  embraced 
therein,  the  name  of  such  village,  and  the  resident  population,  as 
near  as  may  be.  Section  5  provides  for  the  posting  of  copies  of 
such  petition ,  and  of  notices  of  the  time  and  place  when  and  where 
it  will  be  presented  to  the  court.  Section  6  provides  that  "at  the 
time  and  place  fixed  in  said  notice,  upon  the  filing  of  the  petition  and 
proof  of  posting  as  aforesaid,  and  the  map  or  plat  of  said  premises, 
the  court  may  proceed  to  hear  proof s  for  or  against  the  incorporation 
of  said  village,  and  upon  such  hearing  may  take  such  evidence  as  he 
shall  deem  necessary."  Section  7  provides:  "If  the  court,  after  such 
hearing,  shall  be  satisfied  of  the  correctness  of  such  survey  and  of 
the  legality  of  said  plat,  and  that  all  of  the  requirements  of  the  \ 
statute  have  been  complied  with ;  that  the  lands  embraced  in  such  \ 
petition  .  .  .  ought  jicstly  to  be  included  in  said  proposed  village  ;  that 
the  interests  of  the  inhabitants  will  be  promoted  thereby, — it  shall 
make  an  order  declaring  that  such  territory,  the  boundaries  of  which 
shall  be  therein  set  forth  by  metes  and  bounds,  a7id  tvJiich  may  be 
enlarged  or  diminished  by  such  court  from  the  boundaries  specified  in 
said  application  as  justice  may  require,  shall  be  an  incorporated  vil- 
lage by  the  name  specified  in  said  application ;  and  in  such  order  it 
shall  designate  three  persons,  —  electors  residing  on  said  territory, 
—  whose  duty  it  shall  be  to  give  notice  of  an  election  in  said  incor- 
porated village,  as  provided  by  section  10  of  this  act."  Section  8 
requires  that  such  petition  and  order  shall  be  filed  in  the  office  of  the 
clerk  of  the  court,  and  that  he  shall  forthwith  notify  the  persons 
designated  in  said  order  of  the  filing  thereof,  and  that  a  certified 
copy  thereof  shall  be  filed  in  the  office  of  the  register  of  deeds,  and 


118  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

/be  by  him  recorded,  ^' and  thereupon  said  villarje  shall  he  duhj  incor- 
1  porated  b/j  the  name  desijnafed  in  said  order.'"  Section  9  provides 
that  any  district  which  may  be  set  apart  by  an  order  of  the  district 
court,  and  shall  organize  as  si^cL  municipal  corporation  by  the  action 
of  the  inhabitants  thereof  in  the  manner  and  form  hereafter  pro- 
vided, shall  be  endowed  with  all  the  powers  incident  to  municipal 
corporations.  Section  10  requires  the  three  persons  designated  for 
that  purpose  in  the  order  of  the  court,  to  give  notice  to  the  electors 
to  meet  to  organize  under  the  provisions  of  the  act,  and  to  elect  ofla- 
cers  for  the  ensuing  year.  It  also  provides  for  the  manner  of  holding 
and  conducting  such  elections. 

/It  will  be  observed  that  under  the  provisions  of  this  act  the  legis- 
lature has  not,  except  as  to  certain  preliminaries,  determined  or 
t!  defined  the  facts  or  things  upon  the  existence  of  which  the  territory 
I  shall  be  incorporated  as  a  village.  It  will  also  be  observed  that  the 
I  duty  of  the  court  is  not  simply  to  inquire  and  ascertain  whether  cer- 
1  tain  specified  facts  exist,  or  whether  certain  specified  conditions  have 
been  complied  with,  but  to  proceed  and  determine  whether  the  in- 
terests of  the  inhabitants  will  be  promoted  by  the  incorporation  of 
the  village,  and,  if  so,  what  land  ought  in  justice  to  be  included 
within  its  limits.  In  short,  it  is  left  to  the  court  to  de^We  whetLer^ 
public  interests  will  be  subserved  by  creating  a  municipal  corpora- 
tion, and  the  determination  of  this  question  is  left  whollj^to  his 
views  of  expediency  and  public  policy. 

That  the  determination  of  such  questions  involves  the  exercise  of 
/purely  and  exclusively  legislative  powers  seems  to  us  too  clear  to 
/  admit  of  argument.     The  granting  of  all  charters  of  incorporation 
'  involves  the  exercise  of  legislative  functions.     The  proposition  (says 
Dillon)  which  lies  at  the  foundation  of  the  law  of  corporations  of 
the  country  is  that  they  all,  public  or  private,  exist  and  can  exist 
only  by  virtue  of  express  legislative  enactment,  creating  or  authoriz- 
ing^ the  creation  of  the  corporate  body.     All  municipal  corporations 
'are  mere  auxiliaries  to  the  State  government  in  the  business  of  muni- 
cipal rule.     The  act  of  deciding  when  and  under  what  circumstances 
the  public  interests  require  the  creation  of  these  auxiliaries  or  aids 
to  the  State  government  is  one  of  the  highest  and  most  important 
legislative  powers  and  duties. 

By  section  1,  article  4,  of  the  constitution  of  the  State,  the  legis- 
lative department  of  the  government  is  made  to  consist  of  a  Senate 
and  House  of   Representatives.     In  them  all   legislative  power   is 
exclusively  vested.     One  of  the  settled  maxims  of  constitutional  law 
is  that  legislative  powers  caunotjie^delegated.     Where  the  consti- 
tution has  located  the  law  maknig^ower  it  must  remain.     The  de- 
/partment  to  whose  judgment  and  wisdom  it  has  been  intrusted  cannot 
/  abdicate  this   power   and  relieve   itself   of  the   responsibility,    by 
>(__choosing  other  agencies  upon  whom  it  shall  be  devolved.     Cooley, 
Const.  Lim.  139.     As  said  by  this  court  in  State  v.  Young,  29  Minn. 


SECT.  III.]  STATE    V.    SIMONS.  119^ 

474,  551,  it  is  a  principle  not  questioned  that,  except  when  author' 
ized  by  the  constitution,  as  in  respect  to  municipal  corporations,  the  j 
legislature  cannot  delegate  legislative  power.  The  power  of  local 
legislation  commonly  bestowed  on  municipal  corporations  does  not 
trench  upon  the  maxim,  since  this  is  authorized,  impliedly  at  least, 
by  the  constitution  itself;  and  the  maxim  itself  is  to  be  understood 
in  the  light  of  an  immemorial  practice  which  has  always  recognized 
the  policy  and  propriety  of  vesting  in  such  corporations  these  powers. 
As  before  remarked,  municipal  corporations  are  created  for  this  pur- 
pose, as  aids  to  the  State  government  in  the  business  of  municipal 
rule.     Cooley,  Const.  Lim.  140. 

Had  the  legislature,  by  the  act  in  question,  fixed  and  specified  all 
the  conditions  and  facts  upon  which  the  incorporation  of  certain 
territory  should  depend,  we  do  not  question  their  right  to  refer  to 
some  tribunal  or  body  the  question  of  ascertaining  and  determining^ 
the  existence  of  these  facts  and  conditions.  Neither  do  we  decide 
that  they  might  not  delegate  certain  legislative  powers  regarding 
the  organization  and  incorporation  of  villages  to  some  appropriate 
municipal  body  which  might  constitutionally  exercise  local  legisla- 
tive powers.  The  delegation  of  certain  powers  of  local  legislation 
to  municipal  bodies,  for  reasons  already  suggested,  is  permissible. 
Boards  of  county  commissioners  are  already,  under  certain  limita- 
tions, invested  with  somewhat  similar  powers  in  the  organization 
and  change  of  boundaries  of  towns  and  school-districts.  But  the 
present  act  assumes  to  delegate  these  legislative  powers  to  the  Dis- 
trict Court,  —  a  tribunal  not  authorized  to  exercise  them,  its  juris- 
diction under  the  constitution  being  purely  judicial.  Cases  may  be 
found  where  it  has  been  held  that  powers  similar  to  those  conferred 
by  this  act  were  properly  delegated  to  certain  so-called  courts,  but 
we  think  it  will  be  found  in  almost  every  instance  that  these  courts 
were  not  exclusively  judicial,  but  also  qttasi  municipal  bodies,  in- 
vested with  certain  powers  of  local  legislation.  Such  are  the  county 
courts  in  some  States,  which  take  the  place  of  our  boards  of  county 
commissioners  in  the  municipal  government  of  the  county.  As  bear- 
ing upon  the  question  here  considered,  see  City  of  Galesburg  v. 
Hawkinson,  75  111.  152;  Shumway  v.  Bennett,  29  Mich.  451. 

The  only  remaining  question  is  whether  a  writ  of  prohibition  is  ' 
the  appropriate  remedy.  Although  the  powers  attempted  to  be 
conferred  by  this  act  are  not  judicial  in  the  strict  sense  of  the  term, 
yet  they  are,  in  many  of  their  features  and  results,  qxiasi  judicial, 
and  are  conducted  under  judicial  forms.  The  exercise  of  these 
powers  is  unlawful.  Their  exercise  will  result  in  injury  for  which 
there  seems  to  be  no  other  adequate  remedy.  Under  this  state  of 
facts  the  writ  will  lie.     State  v.  Young,  29  Minn.  474. 

Let  the  writ  issue. 


7^ 


^'^^f  ^n^i  Ujl^  t^^jL^^XsL.  I 


^. 


120  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

CITY  OF  WAHOO   v.   DICKINSON. 

23  Nebraska,  426.     1888. 

Maxwell,  J.  In  October,  1886,  the  proper  authorities  of  the  city 
of  Wahoo  passed  a  resolution  that,  "We  favor  and  demand  as  a 
matter  of  right  the  annexation  of  the  territory  contiguous  to  the  city 
of  "Wahoo,"  etc.,  and  described  the  territory  sought  to  be  annexed. 
The  city  thereupon  filed  a  petition  in  the  District  Court  of  Saunders 
county,  setting  forth  the  facts  required  by  the  statute,  and  attached 
an  accurate  map  of  the  territory  sought  to  be  annexed  to  the 
said  petition,  and  prayed  for  a  decree  of  the  court  annexing  the 
territory  set  forth  in  the  petition  to  the  city  of  "Wahoo.  There 
were  nearly  one  hundred  persons  who  owned  the  land  sought  to  be 
annexed,  all  of  whom  were  made  defendants,  and  service  duly  had 
upon  them.  The  appellants  answered  the  petition,  and  upon  a 
decree  being  rendered  against  them,  appealed  to  this  court.  There 
/is  no  bill  of  exceptions,  and  the  only  question  before  this  court  is, 
l.whether  or  not  the  district  court  had  jurisdiction. 

This   question   is  to  be  determined  from  the  construction  to  be 
placed  upon  section  99,  chap.  14  of  the  Comp.  Stat. 

The  court  in  its  decree  found  "  that  the  city  council  of  the  plaintiff 

•has  heretofore  adopted  a  resolution  to  annex  the  territory  described 

in  the  petition  herein  by  a  two-thirds  vote  of  all  the  members  of  said 

council,  and  the  court  further  finds  that  such  of  said  territory  as  is 

f  hereinafter  described  will  receive  material  benefit  by  its  annexation 

to  the  said  city  of  Wahoo,  and  that  justice  aud  equity  require  the 

annexation  of  said  portion  of  said  territory  hereinafter  described  " 

[describing  the  territory]. 

rj,-^^  The  appellants  contend  that  the  power  to  annex   territory  to  a 

^'^*'^ul^    /city  is  legislative  and  not  judicial,  and  if  delegated  must  be  given 

I  to  some  body  possessing  legislative  powers  and  not  to  a  court,  citing 

Shumway  t-.^Bennett,  29  Mich.  452.     People  v.  Carpenter,  24  N.  Y. 

86.     Galesburg  v.  Hawkinson,  75   111.  152.     Turner  v.   Althaus,    6 

Neb.  69.     The  case  of  Shumway  v.  Bennett  arose  under  a  statute 

very  different  from  ours,  and  need  not  be  considered.     The  case  of 

Galesburg  v.  Hawkinson  is  under  a  similar  statute  to  our  own,  but' 

we  are  unable  to  give  our  assent  to  the  reasoning  of  the  court  in 

•   that  case. 

/  It  will  be  conceded  that  an  arbitrary  annexation  of  territory  to  a 
/city  or  town,  where  the  benefits  to  be  received  by  the  territory 
I  annexed  are  not  considered,  can  only  be  accomplished  by  legislation, 
either  by  the  legislature  itself,  or  by  a  tribunal  clothed  with  power 
for  that  purpose,  and  that  a  court  under  our  constitution  could  not  be 
invested  with  such  legislative  power.     We  do  not  understand  the 


SECT.  III.]  CITY   OF   WAHOO   V.   DICKINSON.  121 

statute,  however,  as  clothing  the  courts  with  the  power  to  legislate  1 
in  the  premises  —  that   is,  to  determine  in  the  first  instance  what  / 
territory  should  be  annexed.     This  power  is  bestowed  upon  the  city  l^ 
council.     The    evident   purpose    is   to   protect   the    owners    of    the 
property  from  being  forcibly  brought  within  the  corporation,  unless 
one  of  two  facts  is  made  to  appear.     First,  that  the  territory,  or  a 
part  of  it,  will  receive  material  benefit  from  its  annexation  to  such 
corporation  — that  is,  if  all  the  territory  sought  to  be  annexed  will 
receive  material  benefits,  then  a  decree  will  be  entered  accordingly  ; 
if  but  part  receives  material  benefit,  then  a  decree  will  be  entered      ^ 
only  for  such  part.     Second,  where  justice  and  equity  require  such 
annexation  of  said  territory,  or  a  part  thereof,  then  a  decree  will  be 
entered  according  to  the  facts  as  found. 

The  determination  of  these  questions  is  a  judicial  act,  and  the 
courts  are  duly  empowered  and  the  question  is  proper  for  the  courts 
to  consider.     The  statute  makes  the  right  depend  upon  one  of  the 
two  conditions  named.     If  neither  condition  exists,  then  there  is  no  j    Y 
right  to  annex.     The  court,  therefore,  hears  the  allegations  of  th^ 
parties    interested  in  the  property  sought   to  be  annexed,  and  de-/ 
termines  from  the  testimony  what  their  rights  are  in  the  premises.! 
Thus  in  one  action,  before  any  complications  have  arisen  in  regard 
to  the  annexation  of  the  territory,  the  court  determines  the  rights  of 
the  parties,  with  the  right  of  either  party  to  appeal  from  the  decree. 
Such  powers  are  judicial  and  not  legislative.     The  same  powers  are  , 
conferred  upon  the  courts  to  change  the  names  of  persons,  cities,  and  | 
towns,    and   like   cases    which   have   been   treated   as   a   legitimate/ 
exercise  of  judicial  power.     This  question  was  very  fully  considered 
by  the  Supreme  Court  of  Iowa  in  Burlington  v.  Leebrick,  43  Iowa, 
252,  where  a  statute  very  similar  to  that  under  consideration  was 
sustained,  and  the  power  of  the  court  to  determine  the  conditions  f 
upon  which  contiguous  territory  should  be  annexed  to  a  city  was 
held  to  be  judicial  and  not  legislative.     See  also  Kayser  v.  Trustees, 
16  Mo.  88.     Blanchard  v.  Bissell,  11  0.  S.  96.     Borough  of  Little 
Meadows,  35  Penn.  St.  335. 

Our  constitution   prohibits   special  legislation  as  applied  to  any  I  W[Jl/\ 
particular  municipal  corporation.     The  legislature,  therefore,  cannot, 
by  special  act,  extend  the  boundaries  of   any  city  or  town.     This, 
therefore,  must  be  done  by  general  law,  and  the  most  practical  way 
of  accomplishing  this  purpose  is  to  provide  by  general  statute  the 
conditions  under  which  contiguous  territory  may  be  attached  to  such 
city  or  town,  and  to  clothe  some  local  tribunal  with  power  to  de-> 
termine,  in   the  first  instance,  whether  such  conditions  exist.     If 
such  local  tribunal  is  convinced  of  the  existence  of  one  or  both  of  I 
the  conditions  named,  and  pass  a  resolution  annexing  such  territory, 
it  must  still  convince  the  court  of  the  existence  of  at  least  one  of  i 
said  conditions  and  obtain  a  decree  of  the  existence  of  the  same.' 
These  questions  are  so  far  of   a  judicial  character  that  they  may 


\^ 


122  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

properly  be  vested  in  the  judicial  department  of  the  State.  As  there 
is  no  bill  of  exceptions,  and  ao  question  as  to  the  sufficiency  of 
the  evidence  to  sustain  the  decree,  we  hold  that  the  court  below  had 
jurisdiction,  and  the  decree  is  affirmed. 


aJl^. 


Decree  affirmed. 


^lA     — L  Ex  PARTE  GRIFFITHS.  -p^^i^csu^  ^ 

^0CX^^  (I 

118  Indiana,  83.     1889. 

Elliott,  C.  J.  The  reporter  of  the  decisions  of  this  court  files 
this  petition  invoking  judgment  upon  the  validity  of  the  act  of 
IVfarch,  1889.  Among  other  provisions  that  act  contains  the  follow- 
ing: "Opinions  involving  no  disputed  principles  of  law  or  equity 
or  rule  of  practice,  and  no  question  except  as  to  whether  the  ver- 
dict or  decision  is  sustained  by  sufficient  evidence  or  is  contrary  to 
the  evidence,  shall  be  printed  in  brevier  type,  without  analysis  or 
syllabus.  .  .  .  The  index  and  tables  of  cases  shall  be  subject  to  the 
supervision  and  direction  of  the  Supreme  Court.  ...  It  shall  be 
the  duty  of  the  Supreme  Court  to  make  a  syllabus  of  each  opinion 
recorded  by  said  court,  except  as  hereinbefore  otherwise  provided." 
Acts  of  1889,  p.  87. 

,  If  the  act  assumed  to  require  the  judges  of  the  Supreme  Court  to 
perform  the  duties  of  the  clerk  by  preparing  entries,  or  to  discharge 
the  duties  of  the  sheriff  by  preparing  returns  for  him,  we  suppose 
no  one  would  hesitate  to  declare  it  void.  The  fact  that  the  officer 
whose  duties  the  act  assumes  to  direct  the  judges  to  perform  is  the 
reporter,  and  not  the  clerk  or  the  sheriff,  can  make  no  difference. 
iSTeither  shade  nor  semblance  of  difference  can  be  discerned  by  the 
keenest  vision  between  the  cases  instanced  by  way  of  illustration 
and  the  real  case.  The  principle  which  rules  is  this:_Judges  can- 
not be  required  to  perform  any  other  than  judicial  duties.  This  is  a^ 
rudimental  principle  of  constitutional  law.  To  the  science  of  juris- 
prudence, it  is  as  the  axiom  that  the  whole  is  equal  to  all  its  jjarts 
is  to  the  science  of  mathematics.  There  is  no  contrariety  of 
opinion  upon  this  subject.  There  is  no  tinge  of  reason  for  asserting 
a  different  doctrine.  We  quote  Judge  Cooley's  statement  of  the 
principle,  although  it  is  found  in  a  book  intended  for  beginners, 
because  it  expresses  the  rule  clearly  and  tersely.  This  is  his  state- 
ment :  "  Upon  judges,  as  such,  no  functions  can  be  imposed  except 
those  of  a  judicial  nature."  Principles  of  Const.  Law,  53.  The 
authorities  upon  this  point  are  many  and  harmonious.  Hayburn's 
Case,  2  Dall.  409,  n. ;  United  States  v.  Ferreira,  13  How.  40,  n. ; 
Auditor  v.  Atchison,  etc.,  R.  R.  Co.,  6  Kan.  500 j  Supervisors  of 


SECT.  III.]  EX   PARTE   GRIFFITHS.  123 

Election,  114  Mass.  247;  Rees  v.  City  of  Watertown,  19  Wall.  107; 
Heine  u.  Levee  Commrs.,  19  Wall.  655;  Smith  v.  Strother,  68  Cal. 
194;  Burgoyne  v.  Supervisors,  5  Cal.  9;  People  v.  Town  of 
Nevada,  6  Cal.  143;  Hardeuburgh  v.  Kidd,  10  Cal.  402;  McLean 
County  Precinct  v.  Deposit  Bank,  81  Ky.  2.54;  State  v.  Young,  29 
Minn.  474;  Shepherd  v.  City  of  Wheeling,  4  S.  E.  Rep.  35. 

The  preparation  of  the  syllabi  is  an  essential  part  of  the  reporter's 
work.  Head-notes  may  be  copyrighted,  but  the  opinions  of  the 
court  cannot  be.  The  syllabi,  or  head-notes,  may  be  copyrighted 
because  they  are  the  work  of  the  reporter  and  not  of  the  judges. 
The  work  is  essentially  and  intrinsically  ministerial,  and,  therefore, 
cannot  be  performed  by  the  judges  or  the  court. 

The  soundness  of  the  rule  stated  by  Judge  Cooley  is  beyond  con- 
troversy, and  it  is  hardly  necessary  to  go  further,  since  it  is  con- 
clusive here,  but  the  provisions  of  our  Constitution  are  so  clear  and 
decisive  that  we  cannot  forbear  referring  to  them.  These  pro- 
visions are  found  in  article  7,  and  read  thus : 

"Section  5.  The  Supreme  Court  shall,  upon  the  decision  of  every 
case,  -give  a  statement  in  writing  of  each  question  arising  in  the 
record  of  such  case  and  the  decision  of  the  court  thereon. 

"  Section  6.  The  General  Assembly  shall  provide,  by  law,  for  the 
speedy  publication  of  the  decisions  of  the  Supreme  Court  made  under 
this  Constitution;  but  no  judge  shall  be  allowed  to  report  such 
decisions." 

These  provisions,  when  read  in  connection  with  section  1  of 
article  3,  distributing  the  powers  of  government,  and  section  1  of 
article  7,  lodging  the  whole  judicial  power  of  the  State  in  the 
courts,  make  it  perfectly  clear  that  the  Legislature  cannot  impose 
any  of  the  duties  of  the  reporter  upon  the  jndges  of  the  Supreme 
Court,  Section  5  defines  the  duties  of  the  court,  and  to  these 
duties  the  Legislature  can  make  no  additions.  The  last  clause  of  ' 
section  6  is  a  positive  prohibition,  and  no  judge  can,  without  an 
open  defiance  of  the  Constitution  he  has  sworn  to  support,  take 
upon  himself  the  duties  of  the  reporter. 

The  principle  which  controls  here  has  been  asserted  and  applied 
by  this  court.  By  force  of  this  principle  the  act  of  1875,  concerning 
the  office  of  reporter,  was  overthrown.  Judge  Buskirk,  in  speaking 
of  the  decision,  says  it  was  the  unanimous  judgment  of  the  court. 
Buskirk,  Practice,  12.  That  learned  judge  discusses  the  question  at 
Icingth  and  very  clearly  proves  that  the  Legislature  has  no  power  to 
require  the  judges  to  exercise  any  of  the  functions  of  the  office  of 
reporter.  There  are  many  decisions  asserting  and  enforcing  the 
general  principle  involved  here.  It  is,  indeed,  everywhere  agreed 
that  constitutional  courts  are  not  subject  to  the  will  of  the  Legisla- 
ture, for,  as  said  in  Wright  v.  Defrees,  8  Ind.  298,  "The  powers  of 
the  three  departments  are  not  merely  equal,  —  they  are  exclusive, 
in  respect  to  the  duties  assigned  to  each.     They  are  absolutely  inde- 


i- 


124  DEPARTMENTS    OF   GOVERNMENT.  [CHAP.  III. 

pendent  of  each  other."  In  the  case  of  Houston  v.  Williams,  13 
Cal.  24,  the  conrt,  speaking  by  Field,  J.  (now  one  of  the  justices 
of  the  Supreme  Court  of  the  United  States),  said:  "The  trutli  is, 
no  such  power  can  exist  in  the  legislative  department,  or  be  sanc- 
tioned by  any  court  which  has  the  least  respect  for  its  own  dignity 
and  independence.  In  its  own  sphere  of  duties,  this  court  cannot 
be  trammelled  by  any  legislative  restrictions.  Its  constitutional 
duty  is  discharged  by  the  rendition  of  decisions."  The  Supreme 
Court  of  Arkansas,  discussing  the  general  subject,  cites  with 
approval  the  case  of  Houston  v.  Williams,  supra,  and  says,  of  the 
constitutional  right  of  the  court,  that:  "The  legislative  department 
is  incompetent  to  touch  it."  Vaughan  v.  Harp,  49  Ark.  160.  In  a 
recent  decision  of  our  own  it  was  said :  "  It  is  true  that  the  judiciary 
is  an  independent  department  of  the  government,  exclusively 
invested  by  the  Constitution  with  one  element  of  sovereignty,  and 
that  this  court  receives  its  essential  and  inherent  powers,  rights, 
and  jurisdiction  from  the  Constitution  and  not  from  the  Legisla- 
ture." Smythe  v.  Boswell,  117  Ind.  365.  Of  the  many  other  cases 
sustaining  this  doctrine,  we  cite  Little  v.  State,  90  Ind.  338  (46  Am. 
Eep.  224),  and  authorities  cited;  Sanders  v.  State,  85  Ind.  318; 
Shoultz  V.  McPheeters,  79  Ind.  373;  Nealis  v.  Dicks,  72  Ind.  374; 
Greenough  v.  Greenough,  11  Pa.  St.  489;  Chandler  v.  Kash,  5  Mich. 
410;  Hawkins  v.  Governor,  1  Ark.  570;  In  re  Janitor  of  Supreme 
Court,  35  Wis.  410;  Speight  v.  People,  87  111.  595;  Ex  Parte 
Eandolph,  2  Brock.  447. 

It  is  our  judgment  that  the  petition  brings  before  us  these  three 
.  /  questions :    (1st)    Can    the   Legislature   impose   ministerial    duties 
I  upon   the  court?     (2d)   Can   the   Legislature   add   duties   to   those 
j  devolved  upon  the  judges  by  the  Constitution?     (3d)  Can  the  Legis- 
lature,  in  violation  of  the  constitutional  inhibition,  authorize   the 
judges  to  discharge  the  essential  duties  of  a  reporter?     Upon  these 
questions  we  express  our  judgment  and  sustain  the  petitioner's  con- 
tention, but  we  neither  express  nor  intimate  an  opinion  upon  any 
others,  although  others  are  discussed. 

We  have  no  doubt  that  it  is  our  right  and  our  duty  to  give  judg- 
ment upon  the  questions  we  have  stated,  because  they  directly  con- 
cern the  rights,  powers,  and  functions  of  the  court,  and  no  other 
tribunal  can  determine  for  us  what  our  rights,  duties  and  functions 
are  under  the  Constitution.^ 

1  On  account  of  these  unconstitutional  provisions,  the  whole  statute  providing  for 
reporting  the  opinions  of  the  Supreme  Court  was  held  to  be  invalid.  Griflin  v.  State, 
ex  rcl.,  119  Ind.  520  (1889). 


SECT.  III.l  UNITED   STATES   V.    DCELL.  125 

UNITED   STATES  ex  rel.    v.   DUELL.  /< 


172  United  States,  576.     1898. 


7a 


Ix  an  interference  proceeding  in  the  Patent  Office  between  Ber- 
nardin  and  Northall,  the  Commissioner,  Seymour,  decided  in  favor 
of  Bernardin,  whereupon  Northall  prosecuted  an  appeal  to  the 
Cxmrt^f  Appeals  of  the  District  of  Columbia.  That  court  awarded 
Northall  priority  and  reversed  the  Commissioner's  decision.  7  App.  ».  >i  \ 
D.  C.  452.  Bernardin,  notwithstanding,  applied  to  the  Commis-  /S 
sioner  to  issue  the  patent  to  him  and  tendered  the  final  fee,  but  the 
Commissioner  refused  to  do  this  in  view  of  the  decision  of  the  Court  ^ 

of  Appeals,  which  had  been  duly  certified  to  him.     Bernardin  then  '^ 

applied  to  the  Supreme  Court  of  the  District  of  Columbia  for  a  man- 
damus to  compel  the  Commissioner  to  issue  the  patent  in  accordance 
with  his  prior  decision  on  the  ground  that  the  statute  providing  for 
an  appeal  was  unconstitutional  and  the  judgment  of  the  Court  of 
Appeals  void  for  want  of  jurisdiction.  The  application  was  denied, 
and  Bernardin  appealed  to  the  Court  of  Appeals,  which  affirmed  the 
judgment.     10  App.  D.  C.  294. 

Seymour  resigned  as  Commissioner  and  was  succeeded  by  Butter- 
worth,  and  Bernardin  recommenced  his  proceeding,  which  again  went 
to  judgment  in  the  Supreme  Court,  and  the  Court  of  Appeals.  11 
App.  D.  C.  91.  The  case  was  brought  to  this  court,  but  abated  in 
consequence  of  the  death  of  Butterworth.  United  States  v.  Butter- 
worth,  169  U.  S.  600.  Bernardin  thereupon  brought  his  action 
against  Duell,  Butterworth's  successor,  and  judgment  against  him 
was  again  rendered  in  the  District  Supreme  Court,  that  judgment 
affirmed  by  the  Court  of  Appeals,  and  the  cause  brought  here  on  writ 
of  error. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  coiirt. 

The  Court  of  Appeals  for  the  District  of  Columbia  adjudged  that 
Northall  was  entitled  to  the  patent.  By  section  8  of  the  act  estab- 
lishing that  court,  27  Stat.  434  c.  74,  it  is  provided  that  any  final 
judgment  or  decree  thereof  may  be  revised  by  this  court  on  appeal 
or  error  in  cases  wherein  the  validity  of  a  statute  of  the  United 
States  is  drawn  in  question.  The  validity  of  the  act  of  Congress 
allowing  an  appeal  to  the  Court  of  Appeals  in  interference  cases  was 
necessarily  determined  when  that  court  went  to  judgment,  yet  no 
attempt  was  made  to  bring  the  case  directly  to  this  court,  but  the 
relator  applied  to  the  District  Supreme  Court  to  compel  the  Com- 
missioner to  issue  the  patent  in  disregard  of  the  judgment  of  the 
Court  of  Appeals  to  the  contrary,  and,  the  application  having  been 
denied,  the  Court  of  Appeals  was  called  on  to  readjudicate  the 
question  of  its  own  jurisdiction. 


126  DEPARTMENTS  OF  GOVERNMENT.        [CHAP.  III. 

The  ground  of  this  unusual  proceeding,  by  which  the  lower  court 
was  requested  to  compel  action  to  be  taken  in  defiance  of  the  court 
above,  and  the  latter  court  was  called  on  to  rejudge  its  own  judg- 
ment, was  that  the  decree  of  the  Court  of  Appeals  was  utterly  void 
j  because  of  the  unconstitutionality  of  the  statute  by  which  it  was 
\  empowered  to  exercise  jurisdiction. 

Nothing  is  better  settled  than  that  the  writ  of  mandamus  will 
not  ordinarily  be  granted  if  there  is  another  legal  remedy,  ,nor 
unless  the  duty  sought  to  be  enforced  is  clear  and  indisputable;  and 
we  think  that,  under  the  circumstances,  the  remedy  by  appeal 
existed;  and  that  it  is  not  to  be  conceded  that  it  was  the  duty  of  the 
Commissioner  to  disobey  the  decree  because  in  his  judgment  the 
statute  authorizing  it  was  unconstitutional,  or  that  it  would  have 
been  consistent  with  the  orderly  and  decorous  administration  of 
justice  for  the  District  Supreme  Court  to  hold  that  the  Court  of  Ap- 
peals was  absolutely  destitute  of  the  jurisdiction  which  it  had  deter- 
mined it  possessed.  Even  if  we  were  of  opinion  that  the  act  of  Con- 
gress was  not  in  harmony  with  the  Constitution,  every  presumption 
was  in  favor  of  its  validity,  and  we  cannot  assent  to  the  proposition 
that  it  would  have  been  competent  for  the  Commissioner  to  treat  the 
original  decree  as  absolutely  void,  and  without  force  and  effect  as  to 
all  persons  and  for  all  purposes. 

But  as,  in  our  opinion,  the  Court  of  Appeals  had  jurisdiction,  we 
prefer  to  aifirm  the  judgment  on  that  ground. 

/    The  contention  is  that  Congress  had  no  power  to  authorize  the 
/Court  of  Appeals  to  review  the  action  of  the  Commissioner  in  an  in- 
'    terference  case,  on  the  theory  that  the  Commissioner  is  an  executive 
officer;  that   his  action  in  determining  which  of  two  claimants  is 
entitled  to  a  patent  is  purely  executive;  and  that,  therefore,  such 
\    action  cannot  be  subjected  to  the  revision  of  a  judicial  tribunal. 
"^       Doubtless,  as  was  said  in  Murray  v.  Hoboken  Land  &  Improve- 
ment Co.,  18  How.  272,  284,  Congress  cannot  bring  under  the  judi- 
cial power  a  matter  which,  from  its   nature,  is  not  a  subject   for 
judicial  determination,  but  at  the  same  time,  as  Mr.  Justice  Curtis, 
delivering  the  opinion  of  the  court,   further   observed,   "there   are 
matters  involving  public  rights,  which  may  be  presented   in   such 
form  that  the  judicial  power  is  capable  of  acting  on  them,  and  which 
are  susceptible  of  judicial  determination,  but  which  Congress  may 
or  may  not  bring  within  the  cognizance  of  the  courts  of  the  United 
States,  as  it  may  deem  proper."     The  instances  in  which  this  has 
been  done  are  numerous,  and  many  of  them  are  referred  to  in  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698,  714,  715,  728. 

Since,  under  the  Constitution,  Congress  has  power  "to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for  limited  times 
to  authors  and  inventors  the  exclusive  right  to  their  respective  writ- 
ings and  discoveries,"  and  to  make  all  laws  which  shall  be  necessary 
and    proper   for   carrying  that   expressed  power  into  execution,   it 


SECT.  III.]  UNITED   STATES   V.    DUELL.  127 

follows  that  Congress  may  provide  such  instrumentalities  in  respect 
of  securing  to  inventors  the  exclusive  right  to  their  discoveries 
as  in  its  judgment  will  be  best  calculated  to  effect  that  object. 

And  by  reference  to  the  legislation  on  the  subject,  a  comprehen- 
sive sketch  of  which  was  given  by  Mr.  Justice  ISIatthews  in  Butter- 
worth  V.  Hoe,  112  U.  S.  50,  it  will  be  seen  that  from  1790  Congress 
has  selected  such  instrumentalities,  varying  them  from  time  to  time, 
and,  since  1870,  has  asserted  the  power  to  avail  itself  of  the  courts 
of  the  District  of  Columbia  in  that  connection. 

[The  provisions  of  successive  acts  of  Congress  on  the  subject  are 
briefly  stated.] 

As  one  of  the  instrumentalities  designated  by  Congress  in  execu- 
tion of  the  power  granted,  the  office  of  Commissioner  of  Patents  was  ; 
created,  and  though  he  is  an  executive  officer,  generally  speaking,  \ 
matters  in  the  disposal  of  which  he  exercises  functions  judicial  in  j 
their  nature  may  properly  be  brought  within  the  cognizance  of  the  ! 
courts. 

Now,  in  deciding  whether  a  patent  shall  issue  or  not,  the  Com-,' 
missioner  acts   on   evidence,  finds   the   facts,  applies  the  law  and; 
decides  questions  affecting  not  only  public  but  private  interests;  and 
^yV  so  as  to  reissue,  o4  extension,  or  on  interference  between  contesting 
claimants;  and  in  all  this  he  exercises  judicial  functions. 

In  Butterworth  v.  Hoe,  siijn-a,  Mr.  Justice  IVIatthews,  referring 
to  the  constitutional  provision,  well  said : 

"The  legislation  based  on  this  provision  regards  the  right  of  prop- 
erty in  the  inventor  as  the  medium  of  the  public  advantage  derived 
from  his  invention;  so  that  in  every  grant  of  the  limited  monopoly 
two  interests  are  involved,  that  of  the  public,  who  are  the  grantors, 
and  that  of  the  patentee.  There  are  thus  two  parties  to  every  appli- 
cation for  a  patent,  and  more,  when,  as  in  case  of  interfering  claims 
or  patents,  other  private  interests  compete  for  preference.  The 
questions  of  fact  arising  in  this  field  find  their  answers  in  every 
department  of  physical  science,  in  every  branch  of  mechanical  art; 
the  questions  of  law,  necessary  to  be  applied  in  the  settlement  of 
this  class  of  public  and  private  rights,  have  founded  a  special  branch 
of  technical  jurisprudence.  The  investigation  of  every  claim  pre- 
sented involves  the  adjudication  of  disputed  questions  of  fact,  upon 
scientific  or  legal  principles,  and  is,  therefore,  essentially  judicial 
in  its  character,  and  requires  the  intelligent  judgment  of  a  trained  ■ 
body  of  skilled  officials,  expert  in  the  various  branches  of  science 
and  art,  learned  in  the  history  of  invention,  and  proceeding  by  fixed 
rules  to  systematic  conclusions." 

That  case  is  directly  in  point  and  the  ratio  decidendi  strictly 
applicable  to  that  before  us.  The  case  was  a  suit  in  mandamus 
brought  by  the  claimant  of  a  patent  in  whose  favor  the  Commis- 
sioner had  found  in  an  interference  case,  to  compel  the  Commissioner 
to  issue  the  patent  to  him.     The  Commissioner  had  refused  to  do 


128  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

f  this  on  the  ground  that  the  defeated  party  had  appealed  to  the  Secre- 

,    tary  of  the  Interior,  who  had  reversed  the  Commissioner's  action, 

—  and  found  in  appellant's  favor.      This  court  held   that  while   the 

\_,(l_r>       '    Commissioner  of  Patents  was  an  executive  officer  and  subject  in  ad- 

v^         I   ministrative  or  executive  matters  to  the  supervision  of  the  head  of 

/^        j   the  department,  yet  that  his   action  in  deciding  patent  cases  was 

I  essentially  judicial  in  its  nature  and  not  subject  to  review  by  the 

\  executive  head,  an  appeal  to  the  courts.  hayJPg.  been  jgrovided^for. 

And  among  other  things  it  was  further  said : 

"It  is  evident  that  the  appeal  thus  given  to  the  Supreme  Court  of 
the  District  of  Columbia  from  the  decision  of  the  Commissioner,  is 
not  the  exercise  of  ordinary  jurisdiction  at  law  or  in  equity  on  the 
part  of  that  court,  but  is  one  in  the  statutory  proceeding  under  the 
patent  laws  whereby  that  tribunal  is  interposed  in  aid  of  the  Patent 
Office,  though  not  subject  to  it.     Its  adjudication,  though  not  bind- 
ing upon  any  who  choose  by  litigation  in  courts  of  general  jurisdic- 
tion to  question  the  validity  of  any  patent  thus  awarded,  is,  never- 
theless, conclusive  upon  the  Patent  Office  itself,  for,  as  the  statute 
declares,  Eev.  Stat.  §  4914,  it  '  shall  govern  the  further  proceedings 
in  the  case.'     The  Commissioner  cannot  question  it.     He  is  bound 
to  record  and  obey  it.     His  failure  or  refusal  to  execute  it  by  appro- 
priate   action   would    undoubtedly   be   corrected    and    supplied   by 
suitable  judicial  process.     The  decree  of  the  court  is  the  final  adju- 
dication upon  the  question  of  right;  everything  after  that  depend- 
ent upon  it  is  merely  in  execution  of  it;  it  is  no  longer  matter  of 
'  discretion,  but  has  become  imperative  and  enforceable.      It  binds 
the  whole  Department,  the  Secretary  as  well  as  the  Commissioner, 
for   it  has  settled  the  question  of  title,  so  that  a  demand  for  the 
signatures   necessary   to   authenticate   the   formal   instrument  and 
evidence  of   grant  may  be  enforced.      It   binds  the   Secretary  by 
acting  directly  upon  the  Commissioner,  for  it  makes  the  action  of 
the  latter  final,  by  requiring  it  to  conform  to  the  decree. 
/   "  Congress  has  thus  provided  four  tribunals  for  hearing  applica- 
/tions  for  patents,  with  three  successive  appeals,  in  which  the  Secre- 
tary of  the  Interior  is  not  included,  giving  jurisdiction  in  appeals 
\  from  the  Commissioner  to  a  judicial  body,  independent  of  the  De- 
partment, as  though  he  were  tlie  highest  authority  on  the  subject 
y  ^      jwithin  it.     And  to  say  that  under  the  name  of  direction  and  super- 
/  intendence,  the  Secretary  may  annul  the  decision  of  the  Supreme 
/  Court  of  the  District,  sitting  on  appeal  from  the  Commissioner,  by 
/  directing  the  latter  to  disregard  it,  is  to  construe  a  statute  so  as  to 
i    make  one  part  repeal  another,  when  it  is  evident  both  were  intended 
^  to  coexist  without  conflict." 

"Xo  reason  can  be  assigned  for  allowing  an  appeal  from  the  Com- 

.  missioner  to  the  Secretary  in  cases  in  which  he  is  by  law  required  to 

exercise  his  judgment  on  disputed  questions  of  law  and  fact,  and  in 


SECT.  III.]  UNITED    STATES    V.   DUELL.  129 

which  no  appeal  is  allowed  to  the  courts  that  would  not  equally 
extend  it  to  those  in  which  such  appeals  are  provided,  for  all  are  \ 
equally  embraced  in  the  general  authority  of  direction  and  superin- 
tendence.    That  includes  all  or  does  not  extend  to  any.     The  true(  s 
conclusion,  therefore,    is,  that   in   matters   of   this   description,  i^u)^ 
which  the  action  of  the  Commissioner  is  quasi-judicial,  the  fact  that  I 
no  appeal  is   expressly  given  to  the    Secretary  is   conclusive   that  r 
none  is  to  be  implied." 

We  perceive  no  ground  for  overruling  that  case  or  dissenting  from 
the  reasoning  of  the  opinion;  and  as  the  proceeding  in  the  Court 
of  Appeals  on  an  appeal  in  an  interference  controversy  presents  all 
the  features  of  a  civil  case,  a  plaintiff,  a  defendant  and  a  judge,  and 
deals  with  a  question  judicial  in  its  nature  in  respect  of  which  the 
judgment  of  the  court  is  final  so  far  as  the  particular  action  of 
the  Patent  Office  is  concerned,  such  judgment  is  none  the  less  a 
judgment  "because  its  effect  may  be  to  aid  an  administrative  or 
executive  body  in  the  performance  of  duties  legally  imposed  upon 
it  by  Congress  in  execution  of  a  power  granted  by  the  Constitution." 
Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.  447. 

It  will  have  been  seen  that  in  the  gradual  development  of  the 
policy  of  Congress  in  dealing  with  the  subject  of  patents,  the  recog- 
nition of  the  judicial  character  of  the  questions  involved  became  more 
and  more  pronounced. 

By  the  acts  of  1839  and  1852  an  appeal  was  given,  not  to  the  Cir- 
cuit Court  of  the  District  of  Columbia,  but  to  the  chief  judge  or  one 
of  the  assistant  judges  thereof,  who  was  thus  called  on  to  act  as  a 
special  judicial  tribunal.  The  competency  of  Congress  to  make  use 
of  such  an  instrumentality  or  to  create  such  a  tribunal  in  the  attain- 
ment of  the  ends  of  the  Patent  Office  seems  never  to  have  been 
questioned,  and  we  think  could  not  have  been  successfully.  The  ' 
nature  of  the  thing  to  be  done  being  judicial,  Congress  had  power 
to  provide  for  judicial  interference  through  a  special  tribunal, 
United  States  v.  Coe,  155  U.  S.  76;  and  a  fortiori  existing  courts 
of  competent  jurisdiction  might  be  availed  of. 

We  agree  that  it  is  of  vital  importance  that  the  line  of  demarca- 
tion between  the  three  great  departments  of  government  should  be 
observed,  and  that  each  should  be  limited  to  the  exercise  of  its 
appropriate  powers,  but  in  the  matter  of  this  appeal  we  find  no  such 
encroachment  of  one  department  on  the  domain  of  another  as  to  jus- 
tify us  in  holding  the  act  in  question  unconstitutional. 

Judgment  affirmed. 


/ 


130    /  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  IIL 


y    HARW00D  V.  WENTW0RTH. 
162  United  States,  547.     1896. 

[This  was  an  appeal  from  the  judgment  of  the  Supreme  Court  of 
the  territory  of  Arizona  in  a  proceeding  to  determine  a  right  to  an 
office,  which  was  claimed  under  an  act  of  the  territorial  legislature.] 

Mr.  Justice  Harlan,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

That  which  purports  to  be  an  act  of  the  legislature  of  the  Terri- 
tory of  Arizona,  entitled  "An  act  classifying  the  counties  of  the 
Territory  and  fixing  the  compensation  of  officers  therein,"  and  to 
have  been  approved  by  the  Governor  on  the  21st  day  of  May,  1895, 
not  only  appears  in  the  published  laws  of  the  Territory,  but  is  filed 
with  and  in  the  custody  of  the  secretary  of  the  Territory,  and  is 
signed,  the  parties  agree,  by  the  Governor,  the  President  of  the  terri- 
torial Legislative  Council,  and  the  Speaker  of  the  territorial  House  of 
Eepresentatives. 

Is  it  competent  to  show,  by  evidence  derived  from  the  journals  of 
the  Council  and  House  of  Representatives,  as  kept  by  their  respec- 
tive chief  clerks,  from  the  indorsements  or  minutes  made  by  those 
clerks  on  the  original  bill  while  it  was  in  the  possession  of  the  two 
branches  of  the  legislature,  and  from  the  recollection  of  the  officers 
of  each  body,  that  this  act,  thus  in  the  custody  of  the  territorial 
Secretary,  and  authenticated  by  the  signatures  of  the  Governor, 
President  of  the  Council,  and  the  Speaker  of  the  House  of  Eepresen- 
tatives, contained,  at  the  time  of  its  final  passage,  provisions  that 
were  omitted  from  it  without  authority  of  the  Council  or  the  House, 
before  it  was  presented  to  the  Governor  for  his  approval  ? 

Upon  the  authority  of  Field  v.  Clark,  143  U.  S.  649,  671  et  seq., 
this  question  must  be  answered  in  the  negative.  That  case  in  its 
essential  features,  does  not  differ  from  the  one  now  before  the  court. 
It  was  claimed  in  that  case  that  a  certain  provision  or  section  was  in 
the  act  of  Congress  of  October  1,  1890,  c.  1244,  26  Stat.  567,  as  it 
passed,  but  was  omitted  without  authority  from  the  bill  or  act 
authenticated  by  the  signatures  of  the  presiding  officers  of  the  two 
houses  of  Congress  and  approved  by  the  President.  What  was  said 
in  that  case  is  directly  applicable  in  principle  to  the  present  case. 
After  observing  that  the  Constitution  expressly  required  certain 
matters  to  be  entered  on  the  journal,  and,  waiving  any  expression 
of  opinion  as  to  the  validity  of  a  legislative  enactment  passed  in  dis- 
regard of  that  requirement,  the  court  said :  "  But  it  is  clear  that,  in 
respect  to  the  particular  mode  in  which,  or  with  what  fulness,  shall 
be  kept  the  proceedings  of  either  house  relating  to  matters  not 
expressly  required  to  be  entered  on  the  journals ;  whether  bills, 
orders,  resolutions,  reports  and  amendments  shall  be  entered  at  large 


-^r  ^'.-^ 


SECT.  III.]  HARWOOD   V.   WENTWORTH.  131 

on  the  journal,  or  only  referred  to  and  designated  by  their  titles  or 
by  numbers ;  these  and  like  matters  were  left  to  the  discretion  vi  the 
respective  liouses  of  Congress.  Nor  does  any  clause  of  that  instru- 
ment, either  expressly  or  by  necessary  implication,  prescribe  the 
mode  in  which  the  fact  of  the  original  passage  of  a  bill  by  the  House 
of  Representatives  and  the  Senate  shall  be  authenticated,  or  preclude 
Congress  from  adopting  any  mode  to  that  end  which  its  wisdom  sug- 
gests. Although  the  Constitution  does  not  expressly  require  bills 
that  have  passed  Congress  to  be  attested  by  the  signature  of  the  pre- 
siding officers  of  the  two  houses,  usage,  the  orderly  conduct  of  legis- 
lative proceedings  and  the  rules  under  which  the  two  bodies  have 
acted  since  the  organization  of  the  government,  require  that  mode  of 
authentication."  Again  :  *'  The  signing  by  the  Speaker  of  the  House 
of  Representatives  and  by  the  President  of  the  Senate  in  open  session, 
of  an  enrolled  bill  is  an  official  attestation  by  the  two  houses  of  such 
bill  as  one  that  has  passed  Congress.  It  is  a  declaration  by  the  two 
houses  through  their  presiding  officers  to  the  President,  that  a  bill, 
thus  attested,  has  received,  in  due  form,  the  sanction  of  the  legisla- 
tive branch  of  the  government,  and  that  it  is  delivered  to  him  in 
obedience  to  the  constitutional  requirement  that  all  bills  which  pass 
Congress  shall  be  presented  to  him.  And  when  a  bill,  thus  attested, 
receives  his  approval  and  is  deposited  in  the  public  archives,  its 
authentication  as  a  bill  that  has  passed  Congress  should  be  deemed 
complete  and  unimpeachable.  As  the  President  has  no  authority  to 
approve  a  bill  not  passed  by  Congress,  an  enrolled  act  in  the  cus- 
tody of  the  Secretary  of  State  and  having  the  official  attestations  of 
the  Speaker  of  the  House  of  Representatives,  of  the  President  of  the 
Senate  and  of  the  President  of  the  United  States,  carries,  on  its  face, 
a  solemn  assurance  by  the  legislative  and  executive  departments  of 
the  government,  charged,  respectively,  with  the  duty  of  enacting  and 
executing  the  laws,  that  it  was  passed  by  Congress.  The  respect  due 
to  coequal  and  independent  departments  requires  the  judicial  depart- 
ment to  act  upon  that  assurance  and  to  accept,  as  having  passed  Con- 
gress, all  bills  authenticated  in  the  manner  stated,  leaving  the  courts 
to  determine,  when  the  question  properly  arises,  whether  the  act,  so 
authenticated,  is  in  conformity  with  the  Constitution." 

It  is  said  that,  although  an  enrolled  act  properly  authenticated  is 
sufficient,  nothing  to  the  contrary  appearing  on  its  face,  to  show  that 
it  was  passed  by  the  territorial  Legislature,  it  cannot  possibly  be  — 
that  public  policy  forbids  — that  the  judiciary  should  be  required  to 
accept  as  a  statute  of  the  Territory  that  which  may  be  shown  not  to 
have  been  passed  in  the  form  in  which  it  was  when  authenticated  by 
the  signatures  of  the  presiding  officers  of  the  territorial  Legislature, 
and  of  the  Governor.  This,  it  is  contended,  makes  it  possible  for 
these  officers  to  impose  upon  the  people,  as  a  law,  something  that 
never,  in  fact,  received  legislative  sanction.  Considering  a  similar 
contention  in  Field  v.  Clark,  the  court  said :  "  But  this  possibility  is  too 


V  KA-^j^  /\3'^  <^<^ 


132  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

remote  to  be  seriously  considered  in  the  present  inquiry.  It  suggests 
a  deliberate  conspiracy  to  which  the  presiding  officers,  the  committees 
on  enrolled  bills  and  the  clerks  of  the  two  houses  must  necessarily  be 
parties,  all  acting  with  a  common  purpose  to  defeat  an  expression  of 
the  popular  will  iu  the  mode  prescribed  by  the  Constitution.  Judicial 
action  based  upon  such  a  suggestion  is  forbidden  by  the  respect  due 
to  a  coordinate  branch  of  the  government.  The  evils  that  may  result 
from  the  recognition  of  the  principle  that  an  enrolled  act,  in  the  cus- 
tody of  the  Secretary  of  State,  attested  by  the  signatures  of  the  pre- 
siding officers  of  the  two  houses  of  Congress,  and  the  approval  of  the 
President,  is  conclusive  evidence  that  it  was  passed  by  Congress, 
according  to  the  forms  of  the  Constitution,  would  be  far  less  than 
those  that  would  certainly  result  from  a  rule  making  the  validity  of 
Congressional  enactments  depend  upon  the  manner  in  which  the  jour- 
nals of  the  respective  houses  are  kept  by  the  subordinate  officers 
charged  with  the  duty  of  keeping  them."  These  observations  are 
entirely  applicable  to  the  present  case. 

But  it  may  be  added  that,  if  the  principle  announced  in  Field  v. 
Clark  involves  any  element  of  danger  to  the  public,  it  is  competent 
for  Congress  to  meet  that  danger  by  declaring  under  what  circum- 
stances, or  by  what  kind  of  evidence,  an  enrolled  act  of  Congress  or 
of  a  territorial  Legislature,  authenticated  as  required  by  law,  and  in 
the  hands  of  the  officer  or  department  to  whose  custody  it  is  com- 
mitted by  statute,  may  be  shown  not  to  be  in  the  form  in  which  it 
was  when  passed  by  Congress  or  by  the  territorial  Legislature. 

It  is  difficult  to  imagine  a  case  that  would  more  clearly  demonstrate 
the  soundness  of  the  rule  recognized  in  Field  v.  Clark  than  the  case 
now  under  examination.  The  President  of  the  Council  and  the 
Speaker  of  the  House  of  Representatives  state  that  it  was  not  "the 
custom,"  when  an  enrolled  bill  was  presented  for  signature,  to  call 
the  attention  of  their  respective  bodies  to  the  fact  that  such  bill  was 
about  to  be  signed;  that  the  bill  was  simply  handed  up,  when  it 
would  be  signed  and  handed  back,  without  formality  and  without 
interrupting  legislative  proceedings.  The  Speaker  of  the  House 
of  Representatives,  in  addition,  stated  that  he  was  certain  that 
the  original  bill  when  it  passed  that  body  contained  a  clause  that  it 
should  go  into  effect  on  the  1st  day  of  January,  1897.  But  what 
made  him  so  certain  of,  or  how  he  was  able  to  recall,  that  fact,  is  not 
stated. 

Equally  unsatisfactory,  as  proof  of  what  occurred  in  the  territorial 
Legislature,  are  the  indorsements  made  by  the  chief  clerks  of  the 
council  and  the  house  upon  the  original  bill.  .  .  .  These  indorse- 
ments, in  themselves,  throw  no  light  upon  the  inquiry  as  to  whether 
the  particular  clause,  alleged  to  have  been  omitted,  was,  in  fact, 
stricken  out  by  the  direction  of  the  Council  and  House.  They  show, 
it  is  true,  that  amendments  of  the  original  bill  were  made,  but  not  what 
were  the  nature  of  those  amendments.     If  it  be  said  that  certain 


SECT.  III.]  TURNBULL   V.   GIDDINGS.  133 

amendments  are  attached  to  the  original  bill,  and  are  attested  by  one 
of  the  clerks,  the  answer  is,  that  other  amendments  may  have  been 
made  that  were  not  thus  preserved.  It  was  not  required  that  each 
amendment  should  be  entered  at  large  on  the  journal. 

If  there  be  danger,  under  the  principles  announced  in  Field  i\ 
Clark,  that  the  Governor  and  the  presiding  officers  of  the  two  houses 
of  a  territorial  Legislature  may  impose  upon  the  people  an  act  that 
was  never  passed  in  the  form  in  which  it  is  preserved  by  the  Secre- 
tary of  the  Territory,  and  as  it  appears  in  the  published  statutes,  how 
much  greater  is  the  danger  of  permitting  the  validity  of  a  legisla- 
tive enactment  to  be  questioned  by  evidence  furnished  by  the  general 
indorsements  made  by  clerks  upon  bills  previous  to  their  final  passage 
and  enrolment  —  indorsements  usually  so  expressed  as  not  to  be 
intelligible  to  any  one  except  those  who  made  them,  and  the  scope 
and  effect  of  which  cannot  in  many  cases  be  understood  unless  sup- 
plemented by  the  recollection  of  clerks  as  to  what  occurred  in  the 
hurry  and  confusion  often  attendant  upon  legislative  proceedings. 

We  see  no  reason  to  modify  the  principles  announced  in  Field  v. 
Clark,  and,  therefore,  hold  that,  having  been  officially  attested  by  the 
presiding  officers  of  the  territorial  Council  and  House  of  Representa- 
tives, having  been  approved  by  the  Governor,  and  having  been  com- 
mitted to  the  custody  of  the  Secretary  of  the  territory,  as  an  act 
passed  by  the  territorial  Legislature,  the  act  of  March  21,  1895,  is  to 
be  taken  to  have  been  enacted  in  the  mode  required  by  law,  and  to 
be  unimpeachable  by  the  recitals,  or  omission  of  recitals,  in  the  jour- 
nals of  legislative  proceedings  which  are  not  required  by  the  funda- 
mental law  of  the  territory  to  be  so  kept  as  to  show  everything  done 
in  both  branches  of  the  legislature  while  engaged  in  the  consideration 
of  bills  presented  for  their  action. 

The  judgment  of  the  Supreme  Court  of  the  Territory  is 

Affirmed. 


/^      ( 

TURNBULL  v.    GIDDINGS.  '      "^'^^'sJ 


95  Michigan,  314.     1893. 

R.ELAT0RS  applied  for  m,a7}darnus  to  compel  respondents  to  receive 
certain  protests  and  enter  the  same  on  the  journals  of  their  respec- 
tive bodies.     The  facts  are  stated  in  the  opinion. 

McGrath,  J.  These  cases  may  be  considered  together.  The  re- 
lator in  the  fi.rst  case  is  a  member  of  the  Senate.  Respondent  Gid- 
dings  is  Lieutenant  Governor  and  ex  officio  president  of  the  Senate, 
and  respondent  Alward  is  the  secretary  of  the  Senate.  The  relator 
in  the  other  case  is  a  member  of   the  House   of   Representatives. 


134  DEPARTMENTS   OF   GOVERNMENT.  [CHAP.  III. 

Respondent  Tateum  is  also  a  member  of  the  House  and  Speaker 
thereof,  and  respondent  Miller  is  clerk  of  that  body.  Senator  Turn- 
bull,  on  the  loth  day  of  February,  1893,  asked  leave  to  present  a 
protest  against  certain  proceedings  of  the  Senate,  and  to  have  the 
same  spread  upon  the  journal;  but  the  president  of  the  Senate,  re- 
spondent Giddings,  ruled  that  the  protest  offered  was  out  of  order, 
as  reflecting  on  the  honor  of  the  Senate.  The  decision  of  the 
president  was  appealed  from  on  the  ground  that  the  ruling  was 
"contrary  to  the  constitutional  guaranty."  Upon  vote  taken,  the 
ruling  of  the  president  was  sustained. 

On  February  9,  1893,  during  a  session  of  the  House  of  Represen- 
tatives, the  relator  in  the  second  case.  Representative  Barkworth, 
presented  his  protest  against  the  passage  of  a  certain  resolution;  but 
the  speaker,  respondent  Tateum,  declared  the  protest  to  be  out  of 
order,  as  reflecting  on  the  House,  and  refused  to  receive  the  same 
or  print  it  in  the  journal.  Mr,  Barkworth  appealed  from  the  deci- 
sion of  the  speaker  on  the  ground  that  the  ruling  was  "  contrary  to 
the  constitutional  guaranty."  Upon  a  vote  had  by  yeas  and  nays, 
the  decision  of  the  speaker  was  sustained.  On  the  3d  day  of  March 
following,  Mr.  Barkworth  reoffered  his  protest,  but  the  speaker  re- 
peated his  ruling,  and  the  same  was  not  received;  and  thereupon 
Mr.  Barkworth  requested  respondent  Miller  to  receive  said  protest, 
and  print  the  same  as  a  part  of  the  journal,  but  said  Miller,  "relying 
upon  the  decision  of  the  said  speaker  of  the  House,  refused  and 
neglected  to  receive  the  protest." 

Orders  to  show  cause  were  issued,  and  respondents  appear  without 
answer,  and  move  to  dismiss  the  proceedings. 

The  motion  to  dismiss  must  be  granted.  Section  10,  art.  4,  of  the 
constitution  provides  that  — 

"  Each  house  shall  keep  a  journal  of  its  proceedings,  and  publish  the  same, 
except  such  parts  as  may  require  secrecy.  The  yeas  and  nays  of  the  members 
of  either  house,  on  any  question,  shall  be  entered  on  the  journal  at  the  request 
of  one  fifth  of  the  members  elected.  Any  member  of  either  house  may  dis- 
sent from  and  protest  against  any  act,  proceeding,  or  resolution  which  he  may 
deem  injurious  to  any  person  or  the  public,  and  have  the  reason  of  his  dissent 
entered  on  the  journal." 

It  will  be  observed  that  the  constitution  imposes  the  duty  of 
keeping  the  journal  upon  the  house,  and  not  upon  president  or 
speaker,  secretary  or  clerk.  In  both  cases  an  appeal  to  the  house 
was  taken,  and  each  house  adopted  the  ruling  of  its  presiding  officer, 
/  refusing  to  receive  the  protest,  or  to  print  it  in  the  journal.  It  is 
true  that  the  rules  make  it  the  duty  of  the  secretary  and  clerk  to 
keep  the  journal,  but  this  is  not  a  delegation  of  the  control  of  the 
journal  to  either  officer.  The  rules  also  provide  for  the  reading  of 
each  day's  journal,  and  the  correction  thereof.  The  corrections  are 
made  at  the  instance  and  direction  of  the  body  to  which  the  journal 


SECT.  III.]  TURNBULL   V.   GIDDINGS.  135 

is  read.  The  duty  imposed  by  the  rules  is  the  mere  clerical  duty  of 
placing  upon  the  journal  such  matter  as  each  house  may  determine 
shall  be  placed  thereon.  The  secretary  and  clerk  are  therefore  the 
mere  creatures  of  the  respective  bodies. 

It  is  not  sought  by  this  proceeding  to  reach  something  which  is 
in  the  possession  of  the  agent,  who  defends  his  possession  by  set- 
ting up  title  in  his  principal,  nor  is  it  a  proceeding  to  restrain  an 
agent  from  doing  an  unlawful  act  under  an  order  from  his  principal, 
and  who  sets  up  the  immunity  of  his  superior.     It  is  not  the  exist- 
ence in  another  of  mere  interest  that  is  here  pleaded.     It  is  affirma- 
tive action  that  is  sought  to  be  enforced  and  it  is  want  of  power 
to  comply  with  or  give  effect  to  an  order,  if  made,  that  is  pleaded,     i 
It  is  sought  to  compel  persons,  whose  duties  are  purely  clerical  toy 
perform  duties  which  are  imposed  upon  their   superiors.     We  are 
asked  to  compel  the  secretary  of  the  Senate  and  clerk  of  the  House 
to  insert  in  the  journals  matter  which  the  Senate  and  House  have 
not  only  refused  to  allow  to  be  printed  therein,  but  have  refused    / 
to  consider  or  receive.  ' 

The"  writ  of  viandamus  neither  creates  nor  confers  authority  upon 
the  officer  to  whom  it  is  directed.  It  merely'directs  the  exercise  of 
existing  powers.  It  should  be  directed  to  those  who  are  to  execute 
it,  or  whose  duty  it  is  to  do  the  thing  required.  It  must  also 
clearly  appear  that  the  person  to  whom  it  is  directed  has  the  abso- 
lute power  to  execute  it;  otherwise,  it  will  not  be  issued.  Mos. 
Maud.  199;  High,  Extr.  Rem.  §  32;  Merrill,  Mand.  §§  57,  58,  60, 
and  cases  cited. 

The  duty  sought  to  be  enforced  is  imposed  by  the  constitution 
upon  the  Senate  and  House,  and,  those  bodies  having  refused  to 
receive  or  enter  the  protests,  neither  the  president  of  the  Senate 
nor  the  speaker, of  the  House  has  the  power,  without  the  concur- 
rence of  the  body  over  which  he  presides,  to  execute  the  order  if 
made. 

It  is  unnecessary  to  discuss  the  other  questions  raised. 

Inasmuch  as  the  proper  parties  are  not  before  the  Court,  the  pro- 
ceedings must  be  dismissed,  and  the  writs  denied,  but  without  costs. 


^7 


136  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  lY. 

CHAPTER  ly. 
THE  LEGISLATIVE  DEPARTMENT. 


I 


a/ 


Section  I.  —  Taxation.  ^ 

^^ 


a.  Subjects  of  Taxation. 

STATE  TAX   ON  FOEEIGN   HELD  BONDS 

[Railroad  Co.  v.  Pennsylvania.] 

15  Wallace,  300.     1872. 


■■%' 


[The  State  of  Pennsylvania  sought  to  collect  from  the  Railroad 
Company,  incorporated  in  the  State,  a  tax  on  interest  payable  by  the 
Railroad  Company  to  bondholders  who  were  not  citizens  or  residents 
of  the  State.  Judgment  was  rendered  against  the  Company,  and 
affirmed  by  the  Supreme  Court  of  the  State,  and  the  Company  brought 
the  case  to  this  court  for  review.] 

Mr.  Justice  Field,  after  stating  the  facts  of  the  case,  delivered 
the  opinion  of  the  court  as  follows  : 

The  question  presented  in  this  case  for  our  determination  is 
/whether  the  eleventh  section  of  the  act  of  Pennsylvania  of  May, 
1868,  so  far  as  it  applies  to  the  interest  on  bonds  of  the  railroad 
company,  made  and  payable  out  of  the  State,  issued  to  and  held  by 
non-residents  of  the  State,  citizens  of  other  states,  is  a  valid  and  con- 
stitutional exercise  of  the  taxing  power  of  the  State,  or  whether  it  is 
an  interference,  under  the  name  of  a  tax,  with  the  obligation  of  the 
contracts  between  the  non-resident  bondholders  and  the  corporation. 
If  it  be  the  former,  this  court  cannot  arrest  the  judgment  of  the  State 
court ;  if  it  be  the  latter,  the  alleged  tax  is  illegal,  and  its  enforce- 
ment can  be  restrained. 

The  case  before  us  is  similar  in  its  essential  particulars  to  that 
of  The  Railroad  Company  v.  Jackson,  reported  in  7  Wallace,  262. 
There,  as  here,  the  company  was  incorporated  by  the  legislatures  of 
two  States,  Pennsylvania  and  Maryland,  under  the  same  name,  and 
its  road  extended  in  a  continuous  line  from  Baltimore  in  one  State  to 
Sunbury  in  the  other.  And  the  company  had  issued  bonds  for  a 
large  amount,  drawing  interest,  and  executed  a  mortgage  for  their 


i 


SECT.  I.  a.]  RAILROAD    CO.    V.   PENNSYLVANIA.  137 

security  upon  its  entire  road,  its  franchises  and  fixtures,  including 
the  portion  lying  in  both  States.  Coupons  for  the  different  instal- 
ments of  interest  were  attached  to  each  bond.  There  was  no  appor- 
tionment of  the  bonds  to  any  part  of  the  road  lying  in  either  State. 
The  whole  road  was  bound  for  each  bond.  The  law  of  Pennsylvania, 
as  it  then  existed,  imposed  a  tax  on  money  owing  by  solvent  debtors 
of  three  mills  on  the  dollar  of  the  principal,  payable  out  of  the  inter- 
est.     An  alien  resident  in  Ireland  was  the  holder  of  some  of  the  ^ 

bonds  of  the  railroad  company,  and  when  he  presented  his  coupons 
for  the  interest  due  thereon,  the  company  claimed  the  right  to  deduct 
the  tax  imposed  by  the  law  of  Pennsylvania,  and  also  an  alleged  tax 
to  the  United  States.  The  non-resident  refused  to  accept  the  interest 
with  these  deductions,  and  brought  suit  for  the  whole  amount  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Maryland. 
That  court,  the  chief  justice  presiding,  instructed  the  jury  that  if  the 
plaintiff,  when  he  purchased  the  bonds,  was  a  British  subject,  resi- 
dent in  Ireland,  and  still  resided  there,  he  was  entitled  to  recover  the 
amount  of  the  coupons  without  deduction.  The  verdict  and  judgment 
were  iur  accordance  with  this  instruction,  and  th5  case  was  brought 
here  for  review. 

This  court  held  that  the  tax  under  the  law  of  Pennsylvania  could 
not  be  sustained,  as  to  permit  its  deduction  from  the  coupons  held  by 
the  plaintiff  would  be  giving  effect  to  the  acts  of  her  legislature  upon 
property  and  effects  lying  beyond  her  jurisdiction.  The  reasoning 
by  which  the  learned  justice,  who  delivered  the  opinion  of  the  court, 
reached  this  conclusion,  may  be  open,  perhaps,  to  some  criticism.  It 
is  not  perceived  how  the  fact  that  the  mortgage  given  for  the  security 
of  the  bonds  in  that  case  covered  that  portion  of  the  road  which  ex- 
tended into  Maryland  could  affect  the  liability  of  the  bonds  to  taxa- 
tion. If  the  entire  road  upon  which  the  mortgage  was  given  had\ 
been  in  another  State,  and  the  bonds  had  been  held  by  a  resident  of  N^ 
Pennsylvania,  they  would  have  been  taxable  under  her  laws  in  that 
State.  It  was  the  fact  that  the  bonds  were  held  by  a  non-resident 
which  justified  the  language  used,  that  to  permit  a  deduction  of  the 
tax  from  the  interest  would  be  giving  effect  to  the  laws  of  Pennsyl-  , 
vania  upon  property  beyond  her  jurisdiction,  and  not  the  fact  assigned^ 
by  the  learned  justice.  The  decision  is,  nevertheless,  authority  for 
the  doctrine  that  property  lying  beyond  the  jurisdiction  of  the  State 
is  not  a  subject  upon  which  her  taxing  power  can  be  legitimately 
exercised.  Indeed,  it  would  seem  that  no  adjudication  should  be 
necessary  to  establish  so  obvious  a  proposition. 

The  power  of  taxation,  however  vast  in  its  character  and  searching 
in  its  extent,  is  necessarily  limited  to  subjects  within  the  jurisdiction 
of  the  State.  These  subjects  are  persons,  property,  and  business. 
Whatever  form  taxation  may  assume,  whether  as  duties,  imposts, 
excises,  or  licenses,  it  must  relate  to  one  of  these  subjects.  It  is  not 
possible  to  conceive  of  any  other,  though  as  applied  to  them,  the 


/ 


138  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

taxation  may  be  exercised  in  a  great  variety  of  ways.  It  may  toucli 
property  in  every  shape,  in  its  natural  condition,  in  its  manufactured 
form,  and  in  its  various  transmutations.  And  the  amount  of  the 
taxation  may  be  determined  by  the  value  of  the  property,  or  its  use, 
or  its  capacity,  or  its  productiveness.  It  may  toucli  business  in  the 
almost  intinite  forms  in  which  it  is  conducted,  in  professions,  in  com- 
merce, in  manufactures,  and  in  transportation.  Unless  restrained  by 
provisions  of  the  Federal  Constitution,  the  power  of  the  State  as  to 
the  mode,  form,  and  extent  of  taxation  is  unlimited,  where  the  sub- 
jects to  which  it  applies  are  within  her  jurisdiction. 

Corporations  may  be  taxed,  like  natural  persons,  upon  their  prop- 
erty and  business.    But  debts  owing  by  corporations,  like  debts  owing 
by  individuals,  are  not  property  of  the  debtors   in  any  sense  ;  they 
are  obligations  of  the  debtors,  and  only  possess  value  in  the  hands  of 
the  creditors.     With  them  they  are  property,  and  in  their  hands  they 
may  be  taxed.     To  call  debts  property  of  the  debtors  is  simply  to 
misuse  terms.     All  the  property  there  can  be  in  the  nature  of  things 
in  debts  of  corporations,  belongs  to  the  creditors,  to  whom  they  are 
I  payable,  and  follows  their  domicile,  wherever  that  may  be.     Their 
j   debts  can  have  no  locality  separate  from  the  parties  to  whom   they 
Vare  due.     This  principle  might  be  stated  in  many  different  ways,  and 
supported  by  citations  from  numerous  adjudications,  but  no  number 
of  authorities,  and  no  forms  of  expression  could  add  anything  to  its 
obvious  trutli,  which  is  recognized  upon  its  simple  statement. 

The  bonds  issued  by  the  railroad  company  in  this  case  are  un- 
doubtedly property,  but  property  in  the  hands  of  the  holders,  not 
property  of  the  obligors.  So  far  as  they  are  held  by  non-residents  of 
the  State,  they  are  property  beyond  the  jurisdiction  of  the  State. 
The  law  which  requires  the  treasurer  of  the  company  to  retain  five 
per  cent  of  the  interest  due  to  the  non-resident  bondholder  is  not, 
therefore,  a  legitimate  exercise  of  the  taxing  power.  It  is  a  law 
which  interferes  between  the  company  and  the  bondholder,  and  under 
the  pretence  of  levying  a  tax  commands  the  company  to  witlihold  a 
portion  of  the  stipulated  interest  and  pay  it  over  to  the  State.  It  is 
a  law  which  thus  impairs  the  obligation  of  the  contract  between  the 
\  parties.  The  obligation  of  a  contract  depends  upon  its  terms  and  the 
\  means  which  the  law  in  existence  at  the  time  affords  for  its  enforce- 
Iment.  A  law  which  alters  the  terms  of  a  contract  by  imposing  new 
conditions,  or  dispensing  with  those  expressed,  is  a  law  which  im- 
pairs its  obligation,  for,  as  stated  on  another  occasion,  such  a  law 
relieves  the  parties  from  the  moral  duty  of  performing  the  original 
stipulations  of  the  contract,  and  it  prevents  their  legal  enforcement. 
The  Act  of  Pennsylvania  of  May  1st,  1868,  falls  within  this  descrip- 
tion. It  directs  the  treasurer  of  every  incorporated  company  to 
retain  from  the  interest  stipulated  to  its  bondholders  five  per  cent, 
upon  every  dollar  and  pa}^  it  into  the  treasury  of  the  Commonwealth. 
It  thus  sanctions  and  commands  a  disregard  of  the  express  provisions 


SECT.  I.  a.]  RAILROAD   CO.    V.   PENNSYLVANIA.  139 

of  the  contracts  between  the  company  and  its  creditors.  It  is  only  / / 
one  of  many  cases  where,  under  the  name  of  taxation,  an  oppressive 
exaction  is  made  without  constitutional  warrant,  amounting  to  little 
less  than  an  arbitrary  seizure  of  private  property.  It  is,  in  fact,  a 
forced  contribution  levied  upon  property  held  in  other  States,  where 
it  is  subjected,  or  may  be  subjected,  to  taxation  upon  an  estimate  of 

its  full  value. 

The  case  of  Maltby  v.  The  Reading  and  Columbia  Railroad  Com- 
pany, decided  by  the  Supreme  Court  of  Pennsylvania  in  1866,  was 
referred  to  by  the  Common  Pleas  in  support  of  its  ruling,  and  is 
relied  upon  by  counsel  in  support  of  the  tax  in  question.     The  de- 
cision in  that  case  does  go  to  the  full  extent  claimed,  and  holds  that 
bonds  of  corporations  held  by  non-residents  are  taxable  in  that  State. 
But  it  is  evident  from  a  perusal  of  the  opinion  of  the  court  that  the 
decision  proceeded  upon  the  idea  that  the  bond  of  the  non-resident 
was  itself  property  in  the  State  because  secured  by  a  mortgage  on 
property  there.     "  It  is  undoubtedly  true,"  said  the  court,  "  that  the 
legislature  of  Pennsylvania  cannot  impose  a  personal  tax  upon  the 
citizen  of  another  State,  but  the  constant  practice  is  to  tax  property 
within  our  jurisdiction  which  belongs  to  non-residents."     And  again: 
"There  must  be  jurisdiction  over  either  the  property  or  the  person 
of  the  owner,  else  the  power  cannot  be  exercised ;  but  when  the  prop-  \ 
erty  is  within  our  jurisdiction,  and  enjoys  the  protection  of  our  State  j 
government,  it  is  justly  taxable,  and  it  is  of  no  moment  that  the 
owner,  who  is  required  to  pay  the  tax,  resides  elsewhere."     There 
is  no  doubt  of  the  correctness  of  these  views.     But  the  court  then 
proceeds  to  state  that  the  principle  of  taxation  as  the  correlative  of/ 
protection  is  as  applicable  to  a  non-resident  as  to  a  resident;  that' 
the  loan  to  the  non-resident  is  made  valuable  by  the  franchises  which 
the  company  derived  from  the  Commonwealth,  and  as  an  investment 
rests  upon  State  authority,  and,  therefore,  ought  to  contribute  to  the 
support  of  the  State  government.     It  also  adds  that,  though  the  loan 
is  for  some  purposes  subject  to  the  law  of  the  domicile  of  the  holder, 
"yet,  in  a  very  high  sense,"  it  is  also  property  in  Pennsylvania, 
observing,  in  support  of  this  position,  that  the  holder  of  a  bond  of 
the  company  could  not  enforce  it  except  in  that  State,  and  that  the 
mortgage  given  for  its  security  was  upon  property  and  franchises 
within  her  jurisdiction.     The  amount  of  all  which  is  this:  that  the 
State  which  creates  and  protects  a  corporation  ought  to  have  the 
right  to  tax  the  loans  negotiated  by  it,  though  taken  and  held  by 
non-residents,   a  proposition  which  it  is  unnecessary  to  controvert. 
The  legality  of  a  tax  of  that  kind  would  not  be  questioned  if  in  the 
charter  of  the  company  the  imposition  of  the  tax  were  authorized, 
and  in  the  bonds  of  the  company,  or  its  certificates  of  loan,  the  lia- 
bility of  the  loan   to  taxation  were  stated.     The  tax  in  that  case 
would  be  in  the  nature  of  a  license  tax  for  negotiating  the  loan,  for 
in  whatever  manner  made  payable  it  would  ultimately  fall  on  the 


140  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

company  as  a  condition  of  effecting  the  loan,  and  parties  contracting 
with  the  company  would  provide  for  it  by  proper  stipulations.  But 
there  is  nothing  in  the  observations  of  the  court,  nor  is  there  any- 
thing in  the  opinion,  which  shows  that  the  bond  of  the  non-resident 
was  property  in  the  State,  or  that  the  non-resident  had  any  property 
in  the  State  which  was  subject  to  taxation  within  the  principles  laid 
down  by  the  court  itself,  which  we  have  cited. 

/  The  property  mortgaged  belonged  entirely  to  the  company,  and  so 
/far  as  it  was  situated  in  Pennsylvania  was  taxable  there.     If  taxation 
(is  the  correlative  of  protection,  the  taxes  which  it  there  paid  were 
jthe   correlative  for   the    protection   which  it  there  received.     And 
/neither  the  taxation  of  the  property,  nor  its  protection,  was  aug- 
mented or  diminished  by  the  fact  that  the  corporation  was  in  debt  or 
free  from  debt.     The  property  in  no  sense  belonged  to  the  non-resi- 
dent bondholder  or  to  the  mortgagee  of  the  company.     The  mortgage 
transferred   no   title ;    it   created   only   a   lien   upon    the   property. 
Though  in  form  a  conveyance,  it  was  both  at  law  and  in  equity  a 
mere  security  for  the  debt.     That  such  is  the  nature  of  a  mortgage 
in  Pennsylvania  has  been  frequently  ruled  by  her  highest  court.     In 
Witmer's  Appeal,  45  Penn.  St.,  463,  the  court  said :  "  The  mortgagee 
has  no  estate  in  the  land,  any  more  than  the  judgment  creditor. 
Both  have  liens  upon  it,  and  no  more  than  liens."     And  in  that  State 
all  possible  interests  in  lands,  whether  vested  or  contingent,  are  sub- 
ject to  levy  and  sale  on  execution,  yet  it  has  been  held,  on  the  ground 
that  a  mortgagee   has  no  estate  in  the  lands,  that  the  mortgaged 
premises  cannot  be  taken  in  execution  for  his  debt.     In  Eickert  v. 
Madeira,  1  Rawle,  329,  the  court  said :  "  A  mortgage  must  be  consid- 
ered either  as  a  chose  in  action  or  as  giving  title  to  the  land  and 
vesting  a  real  interest  in  the  mortgagee.     In  the  latter  case  it  would 
be  liable  to  execution ;  in  the  former  it  would  not,  as  it  would  fall 
within  the  same  reason  as  a  judgment  bond  or  simple  contract.     If 
we  should  consider  the  interest  of  the  mortgagee  as  a  real  interest, 
we  must  carry  the  principle  out  and  subject  it  to  a  dower  and  to  the 
lien  of  a  judgment ;  and  that  it  is  but  a  chose  in  action,  a  mere  evi- 
dence of  debt,  is  apparent  from  the  whole  current  of  decisions." 
Wilson  V.  Shoenberger's  Executors,  31  Penn.  St.,  295. 
I     Such  being  the  character  of  a  mortgage  in  Pennsylvania,  it  cannot 
/be  said,  as  was  justly  observed  by   counsel,  that  the  non-resident 
{   holder  and  owner  of  a  bond  secured  by  a  mortgage  in  that  State  owns 
)  any  real  estate  there.    A  mortgage  being  there  a  mere  chose  in  action, 
it  only  confers  upon  the  holder,  or  the  party  for  whose  benefit  the 
/mortgage  is  given,  aright  to  proceed -against  the  property  mortgaged, 
[  upon  a  given  contingency,  to  enforce,  by  its  sale,  the  payment  of  his 
demand.    This  right  has  no  locality  independent  of  the  party  in  whom 
it  resides.     It  may  undoubtedly  be  taxed  by  the  State  when  held  by 
a  resident  therein,  but  when  held  by  a  non-resident  it  is  as  much 
beyond  the  jurisdiction  of  the  State  as  the  person  of  the  owner. 


SECT.  I.  a.]  RAILROAD    CO.    V.    PENNSYLVANIA.  141 

It  is  undoubtedly  true  that  the  actual  situs  of  personal  property 
which  has  a  visible  aud  tangible  existence,  and  not  the  domicile  of 
its  owner,  will,  in  many  cases,  determine  the  State  in  which  it  may 
be  taxed.  The  same  thing  is  true  of  public  securities  consisting  of 
State  bonds  and  bonds  of  municipal  bodies,  and  circulating  notes  of 
banking  institutions;  the  former,  by  general  usage,  have  acquired 
the  character  of,  and  are  treated  as,  property  in  the  place  where  they 
are  found,  though  removed  from  the  domicile  of  the  owner ;  the 
latter  are  treated  and  pass  as  money  wherever  they  are.  But  other 
personal  property,  consisting  of  bonds,  mortgages,  and  debts  gener- 
ally, has  no  situs  independent  of  the  domicile  of  the  owner,  and  cer- 
tainly can  have  none  where  the  instruments,  as  in  the  present  case, 
constituting  the  evidences  of  debt,  are  not  separated  from  the  posses- 
sion of  the  owners. 

Cases  were  cited  by  counsel  on  the  argument  from  the  decisions  of 
the  highest  courts  of  several  States,  which  accord  with  the  views  we 
have  expressed.  In  Davenport  v.  The  ^Mississippi  and  Missouri 
Railroad  Company,  12  Iowa,  539,  the  question  arose  before  the 
Supreme  Court  of  Iowa  whether  mortgages  on  property  in  that  State 
held  by  non-residents  could  be  taxed  under  a  law  which  provided 
that  all  property,  real  and  personal,  within  the  State,  with  certain 
exceptions  not  material  to  the  present  case,  should  be  subject  to  tax- 
ation, and  the  court  said  : 

"  Both  in  law  and  equity  the  mortgagee  has  only  a  chattel  interest. 
It  is  true  that  the  situs  of  the  property  mortgaged  is  within  the  juris- 
diction of  the  State,  but,  the  mortgage  itself  being  personal  property, 
a  chose  in  action,  attaches  to  the  person  of  the  owner.  It  is  agreed 
by  the  parties  that  the  owners  and  holders  of  the  mortgages  are  non- 
residents of  the  State.  If  so,  and  the  property  of  the  mortgage 
attaches  to  the  person  of  the  owner,  it  follows  that  these  mortgages 
are  not  property  within  the  State,  and  if  not  they  are  not  the  subject 
of  taxation." 

In  People  v.  Eastman,  25  Cal.,  603,  the  question  arose  before  the 
Supreme  Court  of  California  whether  a  judgment  of  record  in  Mari- 
posa County  upon  the  foreclosure  of  a  mortgage  upon  property  situ- 
ated in  that  county  could  be  taxed  there,  the  owner  of  the  judgment 
being  a  resident  of  San  Francisco,  and  the  law  of  California  requiring 
all  property  to  be  taxed  in  the  county  where  situated ;  and  it  was 
held  that  it  was  not  taxabie  there.  "  The  mortgage,"  said  the  court, 
"has  no  existence  independent  of  the  thing  secured  by  it;  a  payment 
of  the  debt  discharges  the  mortgage.  The  thing  secured  is  intangible, 
and  has  no  situs  distinct  and  apart  from  the  residence  of  the  holder. 
It  pertains  to  and  follows  the  person.  The  same  debt  may,  at  the 
same  time,  be  secured  by  a  mortgage  upon  land  in  every  county  in 
the  State ;  and  if  the  mere  fact  that  the  mortgage  exists  in  a  particu- 
lar county  gives  the  property  in  the  mortgage  a  sitics  subjecting  it  to 
taxation  in  that  county,  a  party,  without  further  legislation,  might 


142  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

be  called  upon  to  pay  the  tax  several  times,  for  the  lien  for  taxes 
attaches  at  tlie  same  time  in  every  county  in  the  State,  and  the  mort- 
gage in  one  county  may  be  a  different  one  from  that  in  another,  al- 
though the  debt  secured  is  the  same." 

Some  adjudications  in  the  Supreme  Court  of  Pennsylvania  were 
also  cited  on  the  argument,  which  appear  to  recognize  doctrines 
inconsistent  with  that  announced  in  Maltby  v.  Reading  and  Columbia 
Kiiilroad  Company,  particularly  the  case  of  McKeen  v.  The  County 
of  Northampton,  49  Penn.  St.,  519,  and  the  case  of  Short's  Estate, 
16  Id.  63,  but  we  do  not  deem  it  necessary  to  pursue  the  matter 
further.  We  are  clear  that  the  tax  cannot  be  sustained ;  that  the 
bonds,  being  held  by  non-residents  of  the  State,  are  only  property 
in  their  hands,  and  that  they  are  thus  beyond  the  jurisdiction  of  the 
taxing  power  of  the  State.  Even  where  the  bonds  are  held  by  resi- 
dents of  the  State  the  retention  by  the  company  of  a  portion  of  the 
stipulated  interest  can  only  be  sustained  as  a  mode  of  collecting  a  tax 
upon  that  species  of  property  in  the  State.  When  the  property 
is  out  of  the  State  there  can  then  be  no  tax  upon  it  for  which  the 
interest  can  be  retained.  The  tax  laws  of  Pennsylvania  can  have  no 
extra-territorial  operation ;  nor  can  any  law  of  that  State  inconsistent 
with  the  terms  of  a  contract,  made  with  or  payable  to  parties  out  of 
the  State,  have  any  effect  upon  the  contract  whilst  it  is  in  the  hands 
of  such  parties  or  other  non-residents.  The  extra-territorial  inva- 
lidity of  State  laws  discharging  a  debtor  from  his  contracts  with 
citizens  of  other  States,  even  though  made  and  payable  in  the  State 
after  the  passage  of  such  laws,  has  been  judicially  determined  by 
this  court.  Ogden  v.  Saunders,  12  Wheaton,  214 ;  Baldwin  v.  Hale, 
1  Wallace,  223.  A  like  invalidity  must,  on  similar  grounds,  attend 
State  legislation  which  seeks  to  change  the  obligation  of  such  con- 
tracts in  any  particular,  and  on  stronger  grounds  where  the  contracts 
are  made  and  payable  out  of  the  State. 

Judgment  reversed,  and  the  cause  remanded  for  further  proceed- 
ings, In  conformity  with  this  ojnnion.^ 


^ 


KIRTLAND  V.   HOTCHKISS. 
100  United  States,  491.     1879. 


Error  to  the  Supreme  Court  of  Errors,  Litchfield  County,  State 
of  Connecticut. 

The  plaintiff  in  error,  a  citizen  of  Connecticut,  instituted  this 
action  for  the  purpose  of  restraining  the  enforcement  of  certain 
tax-warrants  levied  upon  his  real  estate  in  the  town  in  which  he 

^  Mr.  .IiTSTiCE  Davis  delivered  a  dissenting  opinion  in  whicli  Mr.  Justice  Clif- 
ford, Mr.  Justice  Miller  and  Mr.  Justice  Hunt  concurred. 


SECT.  I.  a.]  KIRTLAND    V.    HOTCHKISS.  143 

resided,  in  satisfaction  of  certain  State  taxes,  assessed  against  him 
for  the  years  1869  and  1870.  The  assessment  was  by  reason  of  his 
ownership,  during  those  years,  of  certain  bonds  executed  in  Chicago, 
and  made  payable  to  him,  his  executors,  administrators,  or  assigns 
in  that  city,  at  such  place  as  he  or  they  should  by  writing  appoint, 
and,  in  default  of  such  appointment,  at  the  Manufacturers'  National 
Bank  of  Chicago.  Each  bond  declared  that  "  it  is  made  under,  and 
is,  in  all  respects,  to  be  construed  by  the  laws  of  Illinois,  and  is 
given  for  an  actual  loan  of  money,  made  at  the  city  of  Chicago,  by 
the  said  Charles  W.  Kirtland  to  the  said  Edwin  A.  Cummins,  on 
the  day  of  the  date  hereof."  They  were  secured  by  deeds  of  trust, 
executed  by  the  obligor  to  one  Perkins,  of  that  city,  upon  real  estate 
there  situated,  the  trustee  having  power  by  the  terms  of  the  deed 
to  sell  and  convey  the  property  and  apply  the  proceeds  in  payment 
of  the  loan,  in  case  of  default  on  the  part  of  the  obligor  to  perform 
the  stipulations  of  the  bond. 

The  statute  of  Connecticut,  under  which  the  assessment  was 
made,  declares,  among  other  things,  that  personal  property  in  that 
State  "or  elsewhere"  should  be  deemed,  for  purposes  of  taxation,  to 
include  all  moneys,  credits,  choses  in  action,  bonds,  notes,  stocks 
(except  United  States  stocks),  chattels,  or  effects,  or  any  interest 
thereon ;  and  that  such  personal  property  or  interest  thereon,  being 
the  property  of  any  person  resident  in  the  State,  should  be  valued, 
anoassessed  at  its  just  and  true  value  in  the  tax-list  of  the  townl 
where  the  owner  resides.  The  statute  expressly  exempts  from  its 
operation  money  or  property  actually  invested  in  the  business  of 
merchandizing  or  manufactiiring,  when  located  out  of  the  State. 
Conn.  Revision  of  3866,  p.  709,  tit.  64,  c.  1,  sect.  8. 

The  highest  court  of  the  State  held  that  the  assessments  complained 
of  were  in  conformity  to  the  State  law,  and  tliat  the  law  itself  did 
not  infringe  any  constitutional  right  of  the  plaintiff. 

This  writ  of  error  is  prosecuted  upon  the  ground,  as  asserted  by 
plaintiff,  that  the  statute  of  Connecticut  thus  interpreted  and  sus- 
tained by  its  highest  court  is  repugnant  to  the  Constitution  of  the 
United  States. 

Mr.  Justice  Harlan,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

In  McCulloch  v.  State  of  Maryland,  4  Wheat.  428,  this  court  con- 
sidered very  fully  the  nature  and  extent  of  the  original  right  of 
taxation  which  remained  with  the  States  after  the  adoption  of  the 
Federal  Constitution.  It  was  there  said  "  that  the  power  of  taxing 
the  people  and  their  property  is  essential  to  the  very  existence  of 
government,  and  may  be  legitimately  exercised  on  the  objects  to 
which  it  is  applicable  to  the  utmost  extent  to  which  the  govern- 
ment may  choose  to  carry  it."  Tracing  the  right  of  taxation  to  the 
source  from  which  it  was  derived,  the  court  further  said :  "  It  is  7 
obvious  that  it  is  an  incident  of  sovereignty,  and  is  coextensive  with 


144  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

that  to  which  it  is  an  incident.  All  subjects  over  which  the  sover- 
eign power  of  a  State  extends  are  objects  of  taxation,  but  those  over 
which  it  does  not  extend  are,  upon  the  soundest  principles,  exempt 
from  taxation." 

*'  This  vital  power,"  said  this  court  in  Providence  Bank  v.  Billings, 
4  Pet.  563,  "  may  be  abused ;  but  the  Constitution  of  the  United 
States  was  not  intended  to  furnish  the  corrective  for  every  abuse  of 
ipower  which  may  be  committed  by  the  State  governments.  The 
interest,  wisdom,  and  justice  of  the  representative  body,  and  its 
relations  with  its  constituents,  furnish  the  only  security,  when  there 
is  no  express  contract,  against  unjust  and  excessive  taxation,  as  well 
as  against  unwise  legislation." 

In  St.  Louis  V.  The  Ferry  Company,  11  Wall.  423,  and  in  State  Tax 
on  Foreign-held  Bonds,  15  Id.  300,  319,  the  language  of  the  court  was 
equally  emphatic. 

In  the  last-named  case  we  said  that,  "  unless  restrained  by  provi- 
sions of  the  Federal  Constitution,  the  power  of  the  State  as  to  the 
mode,  form,  and  extent  of  taxation  is  unlimited,  where  the  subjects 
to  which  it  applies  are  within  her  jurisdiction." 

We  perceive  no  reason  to  modify  the  principles  announced  in 
these  cases  or  to  question  their  soundness.  They  are  fundamental 
and  vital  in  the  relations  which,  under  the  Constitution,  exist  be- 
tween the  United  States  and  the  several  States.  Upon  their  strict 
observance  depends,  in  no  small  degree,  the  harmonious  and  suc- 
cessful working  of  our  complex  system  of  government,  Fedei"al  and 
State.  It  may,  therefore,  be  regarded  as  the  established  doctrine  of 
this  court,  that  so  long  as  the  State,  by  its  laws,  prescribing  the 
mode  and  subjects  of  taxation,  does  not  entrench  upon  the  legitimate 
authority  of  the  Union,  or  violate  any  right  recognized,  or  secured, 
by  the  Constitution  of  the  United  States,  this  court,  as  between  the 
State  and  its  citizen,  can  afford  him  no  relief  against  State  taxation, 
jhowever  unjust,  oppressive,  or  onerous. 

Plainly,  therefore,  our  only  duty  is  to  inquire  whether  the  Consti- 
tution prohibits  a  State  from  taxing,  in  the  hands  of  one  of  its 
resident  citizens,  a  debt  held  by  him  upon  a  resident  of  another 
State,  and  evidenced  by  the  bond  of  the  debtor,  secured  by  deed  of 
trust  or  mortgage  upon  real  estate  situated  in  the  State  in  which  the 
debtor  resides. 

The  question  does  not  seem  to  us  to  be  very  difficult  of  solution. 
The  creditor,  it  is  conceded,  is  a  permanent  resident  within  the  juris- 
diction of  the  State  imposing  the  tax.  The  debt  which  he  holds 
\against  the  resident  of  Illinois  is  property  in  his  hands.  15  Wall.  320. 
It  constitutes  a  portion  of  his  wealth,  and  from  that  wealth  he  is 
under  the  very  highest  obligation,  in  common  with  his  fellow-citizens 
of  the  same  State,  to  contribute  for  the  support  of  the  government 
whose  protection  he  enjoys. 
I    That  debt,  although  a  species  of  intangible  property,  may,  for  pur- 


BECT.  I.  a.]  KIRTLAND   V.    HOTCHKISS.  145 

poses  of  taxation,  if  not  for  all  others,  be  regarded  as  situated  at  tlie 
domicile  of  the  creditor.  It  is  none  the  less  property  because  its  ' 
amount  and  maturity  are  set  forth  in  a  bond.  I[hat  bond,  wherever 
actually  held  or  deposited^  is  only  evidence  of  the  debt,  not  the  debt, 
itselfT^^^The  b6h"d^  may  be  destroyed,  the  debt  —  the  right  to  demand' 
payment  of  the  money  loaned,  with  the  stipulated  interest  —  remains. 
Nor  is  the  locality  of  the  debt,  for  the  purposes  of  taxation,  affected 
by  the  fact  that  it  is  secured  by  mortgage  upon  real  estate  situated  in 
Illinois.  The  mortgage  is  but  a  security  for  the  debt,  and,  as  held 
by  this  court  in  15  Wall.  320,  already  cited,  the  right  of  the  creditor 
"to  proceed  against  the  property  mortgaged,  upon  a  given  contin- 
gency, to  enforce  by  its  sale  the  payment  of  his  demand,  .  .  .  has  no 
locality  independent  of  the  party  in  whom  it  resides.  It  may  un- 
doubtedly be  taxed  by  the  State  when  held  by  a  resident  therein,"  &c. 
Cooley  on  Taxation,  15,  63,  134,  270.  The  debt  in  question,  then, 
having  its  situs  at  the  creditor's  residence,  and  constituting  a  portion  • 
of  his  estate  there,  both  he  and  the  debt  are,  for  the  purposes  of  tax- 
ation, within  the  jurisdiction  of  the  State.  It  is,  consequently,  for 
the  State  to  determine,  consistently  with  its  own  fundamental  law, 
whether  such  property  owned  by  one  of  its  residents  shall  contribute, 
by  way  of  taxation,  to  maintain  its  government.  Its  discretion  in 
that  regard  is  beyond  the  power  of  the  Federal  government  or  any  of 
its  departments  to  supervise  or  control,  for  the  reason,  too  obvious  to 
require  argument  in  its  support,  that  such  taxation  violates  no  pro- 
vision of  the  Federal  Constitution.;:  Manifestly  it  does  not,  as  is  sup- 
posed by  counsel,  interfere  in  any  true  sense  with  the  exercise  by 
Congress  of  the  power  to  regulate  commerce  among  the  several  States. 
Nathan  v.  Louisiana,  8  How.  73,  80 ;  Cooley  on  Taxation,  G2.  Nor 
does  it,  as  is  further  supposed,  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States,  or  deprive  the  citizen  of  life,  liberty, 
or  property,  without  due  process  of  law,  or  violate  the  constitutional 
guaranty  that  the  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges of  citizens  in  the  several  States. 

Whether  the  State  of  Connecticut  shall  measure  the  contribution 
which  persons  resident  within  its  jurisdiction  shall  make  by  way  of 
taxes  in  return  for  the  protection  it  affords  them,  by  the  value  of 
the  credits,  choses  in  action,  bonds,  or  stocks  which  they  may  own 
(other  than  such  as  are  exempted  or  protected  from  taxation  under 
the  Constitution  and  laws  of  the  United  States),  is  a  matter  which 
concerns  only  the  people  of  that  State,  and  with  which  the  Federal 
government  cannot  rightfully  interfere.  Judgment  affirmed. 


^<:- 


( 


146  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

A 

SAVINGS  AND  LOAN  SOCIETY  v.  MULTNOMAH  COUNTY. 

169  United  States,  421.     1898. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  was  a  bill  in  equity,  filed  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Oregon,  by  the  Savings  and  Loan  Society, 
a  corporation  and  citizen  of  the  State  of  California,  against  Multno- 
mah County,  a  public  corporation  in  the  State  of  Oregon,  and  one 
Kelly,  the  sheriff  and  ex  officio  the  tax  collector  of  that  county,  and 
a  citizen  of  that  State,  showing  that  in  1891  and  1892  various  per- 
sons, all  citizens  of  Oregon,  severally  made  their  promissory  notes 
to  secure  the  payment  of  various  sums  of  money,  with  interest,  to 
the  plaintiff  at  its  office  in  the  city  of  San  Francisco  and  State  of 
California,  amounting  in  all  to  the  sum  of  $531,000  ;  and,  to  further 
secure  the  same  debts,  executed  to  the  plaintiff  mortgages  of  divers 
parcels  of  land  owned  by  them  in  Multnomah  County ;  that  the 
mortgages  were  duly  recorded  in  the  office  of  the  recorder  of  convey- 
ances of  that  county ;  that  the  notes  and  mortgages  were  immedi- 
ately delivered  to  the  plaintiff,  and  had  ever  since  been  without  the 
State  of  Oregon,  and  in  the  possession  of  the  plaintiff  at  San  Fran- 
cisco ;  that  afterwards,  in  accordance  with  the  statute  of  Oregon  of 
October  26,  1882,  taxes  were  imposed  upon  all  the  taxable  property 
in  Multnomah  County,  including  the  debts  and  mortgages  aforesaid  ; 
that,  the  taxes  upon  these  debts  and  mortgages  not  having  been 
paid,  a  list  thereof  was  placed  in  the  hands  of  the  sheriff,  with  a 
warrant  directing  him  to  collect  the  same  as  upon  execution,  and  he 
advertised  for  sale  all  the  debts  and  mortgages  aforesaid ;  and  that 
the  statute  was  in  violation  of  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States,  as  depriving  the  plaintiff  of  its 
property  without  due  process  of  law,  and  denying  to  it  the  equal 
protection  of  the  laws.  The  bill  prayed  for  an  injunction  against 
the  sale ;  and  for  a  decree  declaring  that  the  statute  was  contrary  to 
the  provisions  of  the  Constitution  of  the  United  States  and  there- 
fore of  no  effect,  and  that  all  the  proceedings  before  set  out  were 
null  and  void  ;  and  for  further  relief. 

The  defendants  demurred  generally ;  and  the  court  sustained  the 
demurrer,  and  dismissed  the  bill.  60  Fed.  Rep.  31.  The  plaintiff 
appealed  to  this  court. 

The  ground  upon  which  the  plaintiff  seeks  to  maintain  this  suit 
is  that  the  tax  act  of  the  State  of  Oregon  of  1882,  as  applied  to  the 
mortgages,  owned  and  held  by  the  plaintiff  in  California,  of  lands 
in  Oregon,  is  contrary  to  the  Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States,  as  depriving  the  plaintiff  of  its  property 


SECT.  I.  a.]    SAVINGS    AND   LOAN   SOCIETY   V.   MULTNOMAH    CO.  147 

without  due  process  of  law,  and  denying  to  it  the  equal  protection 
of  the  laws. 

The  statute  in  question  makes  the  following  provisions  for  the 
taxation  of  mortgages  :  By  §  1,  "  a  mortgage,  deed  of  trust,  contract 
or  other  obligation  whereby  laud  or  real  property,  situated  in  no 
more  than  one  county  in  this  State,  is  made  security  for  the  pay- 
ment of  a  debt,  together  with  such  debt,  shall,  for  the  purposes  of 
assessment  and  taxation,  be  deemed  and  treated  as  land  or  real 
property."  By  §  2,  the  mortgage,  "  together  with  such  debt,  shall 
be  assessed  and  taxed  to  the  owner  of  such  security  and  debt  in  the 
county,  city  or  district  in  which  the  land  or  real  property  affected  by 
such  security  is  situated ; "  and  may  be  sold,  like  other  real  prop- 
erty, for  the  payment  of  taxes  due  thereon.  By  §  3,  that  person  is 
to  be  deemed  the  owner,  who  appears  to  be  such  on  the  record  of 
the  mortgage,  either  as  the  original  mortgagee,  or  as  an  assignee  by 
transfer  made  in  writing  upon  the  margin  of  the  record.  By  §  4, 
no  payment  on  the  debt  so  secured  is  to  be  taken  into  consideration 
in  assessing  the  tax,  unless  likewise  stated  upon  the  record ;  and  the 
debt  and  mortgage  are  to  be  assessed  for  the  full  amount  appearing 
by  the  record  to  be  owing,  unless  in  the  judgment  of  the  assessor 
the  land  is  not  worth  so  much,  in  which  case  they  are  to  be  assessed 
at  their  real  cash  value.  By  §§5,  6,  7,  it  is  made  the  duty  of  each 
county  clerk  to  record,  in  the  margin  of  the  record  of  any  mortgage, 
when  requested  so  to  do  by  the  mortgagee  or  owner  of  the  mortgage, 
all  assignments  thereof  and  payments  thereon  ;  and  to  deliver  annu- 
ally to  the  assessor  abstracts  containing  the  requisite  information  as 
to  unsatisfied  mortgages  recorded  in  his  office.  By  §  8,  a  debt 
secured  by  mortgage  of  land  in  a  county  of  this  State  "shall,  for 
the  purposes  of  taxation,  be  deemed  and  considered  as  indebtedness 
within  this  State,  and  the  person  or  persons  owing  such  debt  shall 
be  entitled  to  deduct  the  same  from  his  or  their  assessments  in  the 
same  mtinner  that  other  indebtedness  within  the  State  is  deducted." 
And  by  §  9,  "  no  promissory  note,  or  other  instrument  of  writing, 
which  is  the  evidence  of  a  debt  that  is  wholly  or  partly  secured  by 
land  or  real  property  situated  in  no  more  than  one  county  in  this 
State,  shall  be  taxed  for  any  purpose  in  this  State ;  but  the  debt 
evidenced  thereby,  and  the  instrument  by  which  it  is  secured  shall, 
for  the  purpose  of  assessment  and  taxation,  be  deemed  and  consid- 
ered as  land  or  real  property,  and  together  be  assessed  and  taxed  as 
hereinbefore  provided."  Oregon  Laws  of  1882,  p.  64.  All  these 
sections  are  embodied  in  Hill's  Annotated  Code  of  Oregon,  §§  2730, 
2735-2738,  2753-2756. 

The  statute  applies  only  to  mortgages  of  land  in  not  more  than 
one  county.  By  the  last  clause  of  §  3,  all  mortgages,  "  hereafter 
executed,  whereby  land  situated  in  more  than  one  county  in  this 
State  is  made  security  for  the  payment  of  a  debt,  shall  be  void." 
The  mortgages  now  in  question  were  all  made  since  the  statute,  and 


148  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

were  of  land  in  a  single  county;  and  it  is  not  suggested  in  the  bill 
that  there  existed  any  untaxed  mortgage  of  lands  in  more  than  one 
county. 

The  statute,  in  terms,  provides  that  "  no  promissory  note  or  other 
instrument  in  writing,  which  is  the  evidence  of  "  the  debt  secured 
by  the  mortgage,  "  shall  be  taxed  for  any  purpose  within  this  State  ; " 
but  that  the  debt  and  mortgage  "  shall,  for  the  purposes  of  assess- 
ment and  taxation,  be  deemed  and  treated  as  land  or  real  property  " 
in  the  county  in  which  the  land  is  situated,  and  be  there  taxed,  not 
beyond  their  real  cash  value,  to  the  person  appearing  of  record  to  be 
the  owner  of  the  mortgage. 

The  statute  authorizes  the  amount  of  the  mortgage  debt  to  be 
deducted  from  any  assessment  upon  the  mortgagor ;  and  does  not 
provide  for  both  taxing  to  the  mortgagee  the  money  secured  by  the 
mortgage,  and  also  taxing  to  the  mortgagor  the  whole  mortgaged 
property,  as  did  the  statutes  of  other  States,  the  validity  of  which 
was  affirmed  in  Augusta  Bank  v.  Augusta,  36  Maine,  255,  259 ;  Ala- 
bama Ins.  Co.  V.  Lott,  54  Alabama,  499 ;  Appeal  Tax  Court  v.  Rice, 
50  Maryland,  302 ;  and  Goldgart  v.  People,  106  Illinois,  25. 

The  right  to  deduct  froui  his  assessment  any  debts  due  from  him 
within  the  State  is  secured  as  well  to  the  mortgagee,  as  to  the  mort- 
gagor, by  a  provision  of  the  statute  of  Oregon  of  October  25,  1880, 
(unrepealed  by  the  statute  of  1882,  and  evidently  assumed  by  §  8  of 
this  statute  to  be  in  force,)  by  which  "it  shall  be  the  duty  of  the 
assessor  to  deduct  the  amount  of  indebtedness,  within  the  State,  of 
any  person  assessed,  from  the  amount  of  his  or  her  taxable  prop- 
erty."    Oregon  Laws  of  1880,  p.  52 ;  Hill's  Code,  §  2752. 

Taking  all  the  provisions  of  the  statute  into  consideration,  its 
clear  intent  and  effect  are  as  follows  :  The  personal  obligation  of 
the  mortgagor  to  the  mortgagee  is  not  taxed  at  all.  The  mortgage 
and  the  debt  secured  thereby  are  taxed,  as  real  estate,  to  the  mort- 
gagee, not  beyond  their  real  cash  value,  and  only  so  far  as  they 
represent  an  interest  in  the  real  estate  mortgaged.  The  debt  is  not 
taxed  separately,  but  only  together  with  the  mortgage  ;  and  is  con- 
sidered as  indebtedness  within  the  State  for  no  other  purpose  than 
to  enable  the  mortgagor  to  deduct  the  amount  thereof  from  the 
assessment  upon  him,  in  the  same  manner  as  other  indebtedness 
within  the  State  is  deducted.  And  the  mortgagee,  as  well  as  the 
mortgagor,  is  entitled  to  have  deducted  from  his  own  assessment 
the  amount  of  his  indebtedness  within  the  State. 

The  result  is  that  nothing  is  taxed  but  the  real  estate  mortgaged, 
the  interest  of  the  mortgagee  therein  being  taxed  to  him,  and  the 
rest  to  the  mortgagor.  There  is  no  double  taxation.  Nor  is  any 
such  discrimination  made  between  mortgagors  and  mortgagees,  or 
between  resident  and  non-resident  mortgagees,  as  to  deny  to  the 
latter  the  equal  protection  of  the  laws. 

Xo  question  between  the  mortgagee  and  the  mortgagor,  arising 


SECT.  I.  a.]    SAVINGS    AND    LOAN    SOCIETY    V.    MULTNOMAH   CO.  149 

out  of  the  contract  between  them,  in  regard  to  the  payment  of  taxes, 
or  otherwise,  is  presented  or  can  be  decided  upon  this  record. 

The  case,  then,  reduces  itself  to  the  question  whether  this  tax  act, 
as  applied  to  mortgages  owned  by  citizens  of  other  States  and  iu 
their  possession  outside  of  the  State  of  Oregon,  deprives  them  of 
their  property  without  due  process  of  law. 

By  the  law  of  Oregon,  indeed,  as  of  some  other  States  of  the 
Union,  a  mortgage  of  real  property  does  not  convey  the  legal  title 
to  the  mortgagee,  but  creates  only  a  lien  or  incumbrance  as  security 
for  the  mortgage  debt ;  and  the  right  of  possession,  as  well  as  the 
legal  title,  remains  in  the  mortgagor,  both  before  and  after  condition 
broken,  until  foreclosure.  Oregon  General  Laws  of  1843-1872, 
§  323 ;  Hill's  Code,  §  326 ;  Anderson  v.  Baxter,  4  Oregon,  10.5,  110 ; 
Scrapie  V.  Bank  of  British  Columbia,  5  Sawyer,  88,  394;  Teal  v. 
Walker,  111  U.  S.  242 ;  Sellwood  v.  Gray,  11  Oregon,  534  ;  Watson 
V.  Dundee  Mortgage  Co.,  12  Oregon,  474  ;  Thompson  v.  Marshall,  21 
Oregon,  171 ;  Adair  v.  Adair,  22  Oregon,  115. 

Notwithstanding  this,  it  has  been  held,  both  by  the  Supreme  Court 
of  the  State,  and  by  the  Circuit  Court  of  the  United  States  for  the 
District  of  Oregon,  that  the  State  has  the  power  to  tax  mortgages, 
though  owned  and  held  by  citizens  and  residents  of  other  States, 
of  lands  in  Oregon.  Mumford  u.  Sewell,  11  Oregon,  67  ;  Dundee 
Mortgage  Co.  v.  School  District,  10  Sawyer,  52 ;  Crawford  v.  Linn 
County,  11  Oregon,  482  ;  Dundee  Mortgage  Co.  v.  Parrish,  11  Sawyer, 
92 ;  Poppleton  v.  Yamhill  County,  18  Oregon,  377,  383 ;  Savings 
&  Loan  Society  v.  Multnomah  County,  60  Fed.  Rep.  31. 

In  Mumford  v.  Sewell,  Judge  Waldo,  delivering  the  opinion  of  the 
court,  said  :  "  All  subjects,  things  as  well  as  persons,  over  which 
the  power  of  the  State  extends,  may  be  taxed."  "A  mortgage,  as 
such,  is  incorporeal  property.  It  may  be  the  subject  of  taxation." 
"  Concede  that  the  debt  accompanies  the  respondent's  person  and  is 
without  the  jurisdiction  of  the  State.  But  the  security  she  holds  is 
Oregon  security.  It  cannot  be  enforced  in  any  other  jurisdiction. 
It  is  local  in  Oregon  absolutely  as  the  land  which  it  binds."  "  Since 
the  power  of  the  State  over  the  mortgage  is  as  exclusive  and  com- 
plete as  over  the  land  mortgaged,  the  mortgage  is  subject  to  taxation 
by  the  State,  unless  there  is  constitutional  limitation  to  the  contrary." 
11  Oregon,  68,  69. 

"In  Mumford  v.  Sewell,"  said  Judge  Deady,  in  Dundee  INIortgage 
Co.  V.  School  District,  "  the  court  held  that  a  mortgage  upon  real 
property  in  this  State  is  taxable  by  the  State,  without  reference  to 
the  domicil  of  the  owner,  or  the  situs  of  the  debt  or  note  secured 
thereby.  And  this  conclusion  is  accepted  by  this  court  as  the  law 
of  this  case.  Nor  do  I  wish  to  be  understood  as  having  any  doubt 
about  the  soundness  of  the  decision.  A  mortgage  upon  real  prop- 
erty in  this  State,  whether  considered  as  a  conveyance  of  the  same, 
giving  the  creditor  an  interest  in  or  right  to  the  same,  or  merely  a 


160  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

contract  giving  him  a  lien  thereon  for  his  debt  and  the  power  to 
enforce  the  payment  thereof  by  the  sale  of  the  premises,  is  a  contract 
affecting  real  property  in  the  State,  and  dependent  for  its  existence, 
maintenance  and  eutorcement  npon  the  laws  and  tribunals  thereof, 
and  may  be  taxed  here  as  any  other  interest  in,  right  to,  or  power 
over  land.  And  the  mere  fact  that  the  instrument  has  been  sent  out 
of  the  State  for  the  time  being,  for  the  purpose  of  avoiding  taxation 
thereon  or  otherwise,  is  immaterial."     10  Sawyer,  63,  64. 

The  authority  of  every  State  to  tax  all  property,  real  and  personal, 
within  its  jurisdiction,  is  unquestionable.  IMcCulloch  v.  Maryland, 
4  Wheat.  316,  429.  Personal  property,  as  this  court  has  declared 
again  and  again,  may  be  taxed,  either  at  the  domicil  of  its  owner,  or 
at  the  place  where  the  property  is  situated,  even  if  the  owner  is 
neither  a  citizen  nor  a  resident  of  the  State  which  imposes  the  tax. 
Tappau  V.  Merchants'  Bank,  19  Wall.  490,  499 ;  State  Railroad  Tax 
cases,  92  U.  S.  575,  607 ;  Coe  v.  Errol,  116  U.  S.  517,  524 ;  Pullman's 
Car  Co.  V.  Pennsylvania,  141  U.  S.  18,  22,  27.  The  State  may  tax 
real  estate  mortgaged,  as  it  may  all  other  property  within  its  juris- 
diction, at  its  full  value.  It  may  do  this,  either  by  taxing  the  whole 
to  the  mortgagor,  or  by  taxing  to  the  mortgagee  the  interest  therein 
represented  by  the  mortgage,  and  to  the  mortgagor  the  remaining 
interest  in  the  land.  And  it  may,  for  the  purposes  of  taxation, 
either  treat  the  mortgage  debt  as  personal  property,  to  be  taxed,  like 
other  choses  in  action,  to  the  creditor  at  his  domicil;  or  treat  the 
mortgagee's  interest  in  the  land  as  real  estate,  to  be  taxed  to  him, 
like  other  real  property,  at  its  situs.  Firemen's  Ins.  Co.  v.  Common- 
wealth, 137  Mass.  80,  81;  State  v.  Eunyon,  12  Vroom,  (41  N.  J. 
Law,)  98,  105 ;  Darcy  v.  Darcy,  22  Vroom,  (51  N.  J.  Law,)  140,  145 ; 
People  V.  Smith,  88  N.  Y.  576,  585;  Common  Council  v.  Assessors, 
91  INIichigan,  78,  92. 

The  plaintiff  much  relied  on  the  opinion  delivered  by  Mr.  Justice 
Field  in  Cleveland,  Paiuesville  &  Ashtabula  Railroad  v.  Pennsyl- 
vania, reported  under  the  name  of  Case  of  the  State  Tax  on  Foreign- 
held  Bonds,  15  Wall.  300,  323.  It  becomes  important  therefore  to 
notice  exactly  what  was  there  decided.  In  that  case,  a  railroad  com- 
pany, incorporated  both  in  Ohio  and  in  Pennyslvania,  had  issued 
bonds  secured  by  a  mortgage  of  its  entire  road  in  both  States  ;  and 
the  tax  imposed  by  the  State  of  Pennsylvania,  which  was  held  by  a 
majority  of  this  court  to  be  invalid,  was  a  tax  upon  the  interest  due 
to  the  bondholders  upon  the  bonds,  and  was  not  a  tax  upon  the  rail- 
road, or  upon  the  mortgage  thereof,  or  upon  the  bondholders  solely 
by  reason  of  their  interest  in  that  mortgage.  The  remarks  in  the 
opinion,  supported  by  quotations  from  opinions  of  the  Supreme 
Court  of  Pennsylvania,  that  a  mortgage,  being  a  mere  security  for 
the  debt,  confers  upon  the  holder  of  the  mortgage  no  interest  in  the 
land,  and  when  held  by  a  non-resident  is  as  much  beyond  the  juris- 
diction of  the  State  as  the  person  of  the  owner,  went  beyond  what 


SECT.  I.  a.]    SAVINGS   AND   LOAN   SOCIETY   V.   MULTNOMAH   CO.  151 

was  required  for  the  decision  of  the  case,  and  cannot  be  reconciled 
with  other  decisions  of  this  court  and  of  the  Supreme  Court  of 
Pennsylvania. 

This  court  has  always  held  that  a  mortgage  of  real  estate,  made  in 
good  faith  by  a  debtor  to  secure  a  private  debt,  is  a  conveyance  of 
such  an  interest  in  the  land,  as  will  defeat  the  priority  given  to  the 
United  States  by  act  of  Congress  in  the  distribution  of  the  debtor's 
estate.  United  States  v.  Hooe,  3  Cranch,  73 ;  Thelusson  v.  Smith,  2 
Wheat.  396,  426 ;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  386,  441. 

In  Hutchins  v.  King,  1  Wall.  53,  58,  Mr.  Justice  Field,  delivering 
the  opinion  of  the  court,  said  that  "  the  interest  of  the  mortgagee  is 
now  generally  treated  by  the  courts  of  law  as  real  estate,  only  so  far 
as  it  may  be  necessary  for  the  protection  of  the  mortgagee  and  to 
give  him  the  full  benefit  of  his  security."  See  also  Waterman  v. 
Mackenzie,  138  U.  S.  252,  258.  If  the  law  treats  the  mortgagee's 
interest  in  the  land  as  real  estate  for  his  protection,  it  is  not  easy  to 
see  why  the  law  should  forbid  it  to  be  treated  as  real  estate  for  the 
purpose  of  taxation. 

The- leading  quotation,  in  15  Wall.  323,  from  the  Pennsylvania 
Reports,  is  this  general  statement  of  Mr.  Justice  Woodward :  "  The 
mortgagee  has  no  estate  in  the  land,  more  than  the  judgment  creditor. 
Both  have  liens  upon  it,  and  no  more  than  liens."  Witmer's  Appeal, 
45  Penn.  St.  455,  463.  Yet  the  same  judge,  three  years  later,  treated 
ix;  as  unquestionable  that  a  mortgage  of  real  estate  in  Pennsylvania 
was  taxable  there,  without  regard  to  the  domicil  of  the  mortgagee. 
Maltby  v.  Reading  &  Columbia  Railroad,  52  Penn.  St.  140,  147. 

The  effect  of  a  mortgage  as  a  conveyance  of  an  interest  in  real 
estate  in  Pennsylvania  has  been  clearly  brought  out  in  two  judg- 
ments delivered  by  Mr.  Justice  Strong,  the  one  in  the  Supreme 
Court  of  Pennsylvania,  and  the  other  in  this  court. 

Speaking  for  the  same  judges  who  decided  Witmer's  Appeal,  above 
cited,  and  in  a  case  decided  less  than  two  months  previously,  reported 
in  the  same  volume,  and  directly  presenting  the  question  for  adjudi- 
cation, Mr.  Justice  Strong  said,  of  mortgages  of  real  estate:  "They 
are  in  form  defeasible  sales,  and  in  substance  grants  of  specific 
security,  or  interests  in  land  for  the  purpose  of  security.  Ejectment 
may  be  maintained  by  a  mortgagee,  or  he  may  hold  possession  on 
the  footing  of  ownership,  and  with  all  its  incidents.  And  though  it 
is  often  decided  to  be  a  security  or  lien,  yet,  so  far  as  it  is  necessary 
to  render  it  effective  as  a  security,  there  is  always  a  recognition  of 
the  fact  that  it  is  a  transfer  of  the  title."  Britton's  Appeal,  45 
Penn.  St.  172,  177,  178.  It  should  be  remembered  that  in  the  courts 
of  the  State  of  Pennsylvania,  for  want  of  a  court  of  chancery,  an 
equitable  title  was  always  held  sufficient  to  sustain  an  action  of  eject- 
ment. Simpson  v.  Ammons,  1  Binney,  175  ;  Youngman  v.  Elmira  & 
Williamsport  Railroad,  65  Penn.  St.  278,  285,  and  cases  there  cited. 
Again,  in  an  action  of  ejectment,  commenced  in  the  Circuit  Court 


152  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IT. 

of  the  United  States  for  the  District  of  Pennsylvania,  Mr.  Justice 
Strong,  delivering  the  unanimous  opinion  of  this  court,  said :  "  It  is 
true  that  a  mortgage  is  in  substance  but  a  security  for  a  debt,  or  an 
obligation,  to  which  it  is  collateral.  As  between  the  mortgagor  and 
all  others  than  the  mortgagee,  it  is  a  lien,  a  security,  and  not  an 
estate.  But  as  between  the  parties  to  the  instrument,  or  their 
privies,  it  is  a  grant  which  operates  to  transmit  the  legal  title  to 
the  mortgagee,  and  leaves  the  mortgagor  only  a  right  to  redeem.'' 
"Courts  of  equity,"  he  went  on  to  say,  "as  fully  as  courts  of  law, 
have  always  regarded  the  legal  title  to  be  in  the  mortgagee  until 
redemption,  and  bills  to  redeem  are  entertained  upon  the  principle 
that  the  mortgagee  holds  for  the  mortgagor  when  the  debt  secured 
by  the  mortgage  has  been  paid  or  tendered.  And  such  is  the  law 
of  Pennsylvania.  There,  as  elsewhere,  the  mortgagee,  after  breach 
of  the  condition,  may  enter  or  maintain  ejectment  for  the  land." 
Applying  these  principles,  it  was  held  that  one  claiming  under  the 
mortgagor,  having  only  an  equitable  title,  could  not  maintain  an 
action  of  ejectment  against  one  in  possession  under  the  mortgagee, 
while  the  mortgage  remained  in  existence,  or  until  there  had  been  a 
redemption ;  because  an  equitable  title  would  not  sustain  an  action 
of  ejectment  in  the  courts  of  the  United  States.  Brobst  v.  Brock, 
10  Wall.  519,  529,  530. 

In  a  later  case  in  Pennsylvania,  Chief  Justice  Agnew,  upon  a  full 
review  of  the  authorities  in  that  State,  said:  "Ownership  of  the 
debt  carries  with  it  that  of  the  mortgage  ;  and  its  assignment,  or 
succession  in  the  event  of  death,  vests  the  right  to  the  mortgage  in 
the  assignee  or  the  personal  representative  of  the  deceased  owner. 
But  there  is  a  manifest  difference  between  the  debt,  which  is  a  mere 
chose  in  action,  and  the  land  which  secures  its  payment.  Of  the 
former  there  can  be  no  possession,  except  that  of  the  writing,  which 
evidences  the  obligation  to  pay  ;  but  of  the  latter,  the  land  or  pledge, 
there  may  be.  The  debt  is  intangible,  the  land  tangible.  The 
mortgage  passes  to  the  mortgagee  the  title  and  right  of  possession 
to  hold  till  payment  shall  be  made."  Tryon  v.  Munson,  77  Penn. 
St.  250,  262. 

In  Kirtland  v.  Hotchkiss,  42  Conn.  426,  affirmed  by  this  court  in 
100  U.  S.  491,  the  point  adjudged  was  that  debts  to  persons  residing 
in  one  State,  secured  by  mortgage  of  land  in  another  State,  might, 
for  the  purposes  of  taxation,  be  regarded  as  situated  at  the  domicil 
of  the  creditor.  But  the  question,  whether  the  mortgage  could  be 
taxed  there  only,  was  not  involved  in  the  case,  and  was  not  decided, 
either  by  the  Supreme  Court  of  Connecticut  or  by  this  Court. 

In  many  other  cases  cited  by  the  appellant,  there  was  no  statute 
expressly  taxing  mortgages  at  the  situs  of  the  land  ;  and,  although 
the  opinions  in  some  of  them  took  a  wider  range,  the  only  question 
in  judgment  in  any  of  them  was  one  of  the  construction,  not  of  the 
constitutionality,  of  a  statute  —  of  the  intention,  not  of  the  power, 


SECT.  I.  b.]  TdE   COLLECTOR   V.    DAY.  •       153 

of  the  legislature.  Such  were  :  Davenport  v.  Mississippi  &  Missouri 
Railroad,  12  Iowa,  539;  Latrobe  v.  Baltimore,  19  Maryland,  13; 
People  V.  Eastman,  25  California,  601 ;  State  v.  Earl,  1  Nevada,  394; 
Arapahoe  v.  Cutter,  3  Colorado,  349  ;  People  v.  Smith,  88  N.  Y.  576  ; 
Grant  v.  Jones,  39  Ohio  St.  506 ;  State  v.  Smith,  68  Mississippi,  79 ; 
Holland  v.  Silver  Bow  Commissioners,  15  Montana,  460. 

The  statute  of  Oregon,  the  constitutionality  of  which  is  now 
drawn  in  question,  expressly  forbids  any  taxation  of  the  promissory- 
note,  or  other  instrument  of  writing,  which  is  the  evidence  of  the 
debt  secured  by  the  mortgage  ;  and,  with  equal  distinctness,  provides 
for  the  taxation,  as  real  estate,  of  the  mortgage  interest  in  the  land. 
Although  the  right  which  the  mortgage  transfers  in  the  land  coveredX  -i^ 
thereby  is  not  the  legal  title,  but  only  an  equitable  interest  and  by  ^ 
way  of  security  for  the  debt,  it  appears  to  us  to  be  clear  upon  princi-  I  TV  i 

pie,  and  in  accordance  with  the  weight  of  authority,  that  this  inter-      K 
est,  like  any  other  interest  legal  ^_r_equitable,  may  be  taxed  to  its 
owner  (whether  resident  or  non-resident)  in  the  State  where  the  land 
is  situated,  without  contravening  any  provision  of  the  Constitution 
of  the  "United  States.  Decree  affirmed.^ 


1 


b.  Taxation  of  Government  Agencies, 

THE   COLLECTOR  v.   DAY. 
11  Wallace,  113.     1870. 

[Suit  was  brought  by  Day  in  the  Circuit  Court  of  the  United  States 
for  Massachusetts  to  recover  from  the  United  States  Revenue  Col- 
lector the  amount  of  income  tax  exacted  by  the  latter  from  plaintiff 
on  his  salary  as  a  judicial  officer  of  the  State.  Judgment  beijig 
rendered  for  plaintiff,  defendant  brings  the  case  to  this  Court  for 
review.] 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court.  >. 

The  case  presents  the  question  whether  or  not  it  is  competent  for  I    / 
Congress,  under  the  Constitution  of  the  United  States,  to  impose  a )  . 
tax  upon  the  salary  of  a  judicial  officer  of  a  State  ? 

In  Dobbins  v.  The  Commissioners  of  Erie  County,  16  Pet.  435,  it 
was  decided  that  it  was  not  competent  for  the  legislature  of  a  State  \ 
to  levy  a  tax  upon  the  salary  or  emoluments  of  an  officer  of  the) 
United  States.     The  decision  was  placed  mainly  upon  the  ground 
that  theofficer  was  a  means  or  instrumentality  employed  for  carry-  [ 
ing  into  effect  some  of  the  legitimate  powers  of  the  government, 
which  could  not  be  interfered  with  by,  taxation  or  otherwise  by  the  ; 

1  Mr.  Justice  Harlan  aud  Mr.  Justice  White  dissented. 


154  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

/  States,  and  that  the  salary  or  compensation  for  the  service  of  the 

I  ofiBcer  was  inseparably  connected  with  the  office ;  that  if  the  officer, 
as  such,  was  exempt,  the  salary  assigned  for  his  support  or 
maintenance  while  holding  the  office  was  also,  for  like  reasons, 
equally  exempt. 

The  cases  of  McCulloch  v.  Maryland,  4  Wheat.  316,  and  Weston 
V.  Charleston,  2  Pet.  449,  were  referred  to  as  settling  the  principle 
that  governed  the  case,  namely,  "  that  the  State  governments  cannot 

f^SLj  a  tax  upon  the  constitutional  means  employed  by  the  government 

\of  the  Union  to  execute  its  constitutional  powers." 

The  soundness  of  this  principle  is  happily  illustrated  by  the  Chief 
Justice  in  McCulloch  v.  Maryland,  4  Wheat.  432.  "  If  the  States," 
he  observes,  "  may  tax  one  instrument  employed  by  the  government 
in  the  execution  of  its  powers,  they  may  tax  any  and  every  other 
instrument.  They  may  tax  the  mail ;  they  may  tax  the  mint ;  they 
may  tax  patent-rights  ;  they  may  tax  judicial  process ;  they  may 
tax  all  the  means  employed  by  the  government  to  an  excess  which 
would  defeat  all  the  ends  of  government."  "This,"  he  observes, 
"was  not  intended  by  the  American  people.  They  did  not  design  to 
make  their  government  dependent  on  the  States."  Again,  (lb.  427,) 
"That  the  power  of  taxing  it  (the  bank)  by  the  States  may  be 
exercised  so  far  as  to  destroy  it,  is  too  obvious  to  be  denied."  And, 
in  Weston  v.  The  City  of  Charleston,  2  Pet.  466,  he  observes :  "  If 
the  right  to  impose  the  tax  exists,  it  is  a  right  which,  in  its  nature, 
acknowledges  no  limits.  It  may  be  carried  to  any  extent  within  the 
jurisdiction  of  the  State  or  corporation  which  imposes  it  which  the 
will  of  each  State  and  corporation  may  prescribe." 

It  is  conceded  in  the  case  of  McCulloch  v.  Maryland,  that  the 
power  of  taxation  by  the  States  was  not  abridged  by  the  grant  of  a 
similar  power  to  the  government  of  the  Union  ;  that  it  was  retained 
by  the  States,  and  that  the  power  is  to  be  concurrently  exercised  by 
the  two  governments  ;  and  also  that  there  is  no  express  constitutional 
prohibition  upon  the  States  against  taxing  the  means  or  instrumen- 
talities of  the  general  government.     But,  it  was  held,  and,  we  agree 

'  properly  held,  to  be  prohibited  by  necessary  implication ;  otherwise 
the  States  might  impose  taxation  to  an  extent  that  would  impair,  if 
not  wholly  defeat,  the  operations  of  the  Federal  authorities  when 
acting  in  their  appropriate  sphere. 

These  views,  we  think,  abundantly  establish  the  soundness  of  the 
decision  of  the  case  of  Dobbins  v.  The  Commissioners  of  Erie,  which 
determined  that  the  States  were  prohibited,  upon  a  proper  construc- 
tion of  the  Constitution,  from  taxing  the  salary  or  emoluments  of  an 
officer  of  the  government  of  the  United  States.  And  we  shall  now 
/proceed  to  show  that,  upon  the  same  construction  of  that  instrument, 
'  and  for  like  reasons,  that  government  is  prohibited  from  taxing  the 
salary  of  the  judicial  officer  of  a  State. 
'^   It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the 


SECT.  I.  b.]  THE   COLLECTOR   V.   DAY.  155 

Union,  that  |the  sovereign  powers  vested  in  the  State  governments 
by  their  respective  constitutions,  remained  unaltered  and  unimpaired, 
except  so  far  as  they  were  granted  to  the  government  of  the  United 
States.     That  the  intention  of  the  framers  of  the  Constitution  in 
this  respect  might  not  be  misunderstood,  this  rule  of  interpretation 
is   expressly   declared    in   the    tenth   article   of    the    amendments, 
namely:    "The   powers   not    delegated   to   the   United   States    areY 
reserved  to  the  States  respectively,  or,  to  the  people."     The  govern- 
ment of  the  United  States,  therefore,  can  claim  no  powers  which  are 
not   granted   to   it   by  the   Constitution,    and   the   powers   actually"; 
granted  must  be  such  as  are  expressly  given,  or  given  by  necessary/ 
implication. 

The  general  government,  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sov- 
ereignties, acting  separately  and  independently  of  each  other,  within 
their  respective  spheres.  The  former  in  its  appropriate  sphere  is 
supreme  ;  but  the  States  within  the  limits  of  their  powers  not 
granted,  or,  in  the  language  of  the  tenth  amendment,  "  reserved," 
are  as  independent  of  the  general  government  as  that  government 
within  its  sphere  is  independent  of  the  States. 

The  relations  existing  between  the  two  governments  are  well 
stated  by  tl^e  present  Chief  Justice  in  the  case  of  Lane  County  v. 
Oregon,  7  Wall.  76.  "Both  the  States  and  the  United  States," 
he  observed,  "existed  before  the  Constitution.  The  people,  through  \ 
that  instrument,  established  a  more  perfect  union,  by  substituting  a 
National  government,  acting  with  ample  powers  directly  upon  the 
citizens,  instead  of  the  Confederate  government,  which  acted  wTtE 
powers  greatly  restricted,  only  upon  the  States.  But,  in  many  of 
the  articles  of  the  Constitution7tKe~necessary  existence  of  the  States, 
and  within  their  proper  spheres,  the  independent  authority  of  the 
States,  are  distinctly  recognized.  To  them  nearly  the  whole  charge 
of  interior  regulation  is  committed  or  left ;  to  them,  and  to  the 
people,  all  powers,  not  expressly  delegated  to  the  National  govern- 
ment, are  reserved."  Upon  looking  into  the  Constitution  it  will  be 
found  that  but  a  few  of  the  articles  in  that  instrument  could  be  carried 
into  practical  effect  without  the  existence  of  the  States. 

Two  of  the  great  departments  of  the  government,  the  executive 
and  legislative,  depend  upon  the  exercise  of  the  powers,  or  upon  the 
people  of  the  States.  The  Constitution  guarantees  to  the  States  a 
republican  form  of  government,  and  protects  each  against  invasion 
or  domestic  violence.  Such  being  the  separate  and  independent 
condition  of  the  States  in  our  complex  system,  as  recognized  by  the 
Constitution,  and  the  existence  of  which  is  so  indispensable,  that, 
without  them,  the  general  government  itself  would  disappear  from 
the  family  of  nations,  it  would  seem  to  follow,  as  a  reasonable,  if  not 
a  necessary  consequence,  that  the  means  and  instrumentalities  em-' 
ployed   for   carrying   on  the   operations  of   their   governments,  for 


X.0 


156  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

/preserving  their  existence,  and  fulfilling  the  high  and  responsible 
/duties  assigned  to  them  in  the  Constitution,  should  be  left  free  and 
'  unimpaired,  should  not  be  liable  to  be  crippled,  much  less  defeated 
by  the  taxing  power  of  another  government,  which  power  acknowl- 
\  edges  no  limits  but  the  will  of  the  legislative  body  imposing  the  tax. 
I  And,  more  especially,  those  means  and  instrumentalities   which  are 
I  the  creation  of  their  sovereign  and  reserved  rights,  one  of  which  is 
[  the  establishment  of  the  judicial  department,  and  the  appointment  of 
\officers  to  administer  their  laws.     Without  this  power,  and  the  ex- 
ercise of  it,  we  risk  nothing  in  saying  that  no  one  of  the  States  under 
I  the  form  of  government  guaranteed  by  the  Constitution  could  long 
preserve  its  existence.     A   despotic  government  might.     We   have 
said  that  one  of  the  reserved  powers  was  that  to  establish  a  judicial 
department ;  it  would  have  been  more  accurate,  and  in  accordance 
with  the  existing  state  of  things  at  the  time,  to  have  said  the  power 
to  maintain  a  judicial   department.     All  of  the  thirteen  States  were 
in  the  possession  of  this  power,  and  had  exercised  it  at  the  adoption 
of  the  Constitution;  and  it  is  not  pretended  that  any  grant  of  it  to 
the  general  government  is  found  in  that  instrument.     It  is,  therefore, 
one  of  the  sovereign  powers  vested  in  the  States  by  their  constitu- 
tions, which  remained  unaltered  and  unimpaired,  and  in  respect  to 
which  the  State  is  as  independent  of  the  general  government  as  that 
government  is  independent  of  the  States. 

The  supremacy  of  the  general  government,  therefore,  so  much 
relied  on  in  the  argument  of  the  counsel  for  the  plaintiff  in  erroi-,  in 
respect  to  the  question  before  us,  cannot  be  maintained.  The  two 
governments  are  upon  an  equality,  and  the  question  is  whether  the 
power  "to  lay  and  collect  taxes"  enables  the  general  government  to 
tax  the  salary  of  a  judicial  officer  of  the  State,  which  officer  is  a 
means  or  instrumentality  employed  to  carry  into  execution  one  of 
its  most  important  functions,  the  administration  of  the  laws,  and 
which  concerns  the  exercise  of  a  right  reserved  to  the  States  ? 

We  do  not  say  the  mere  circumstance  of  the  establishment  of  the 
judicial  department,  and  the  appointment  of  officers  to  administer 
the  laws,  being  among  the  reserved  powers  of  the  State,  disables  the 
general  government  from  levying  the  tax,  as  that  depends  upon  the 
express  power  "to  lay  and  collect  taxes,"  but  it  shows  that  it  is  an 
original  inherent  power  never  parted  with,  and,  in  respect  to  which, 
the  supremacy  of  that  government  does  not  exist,  and  is  of  no 
importance  in  determining  the  question  ;  and  further,  that  being  an 
original  and  reserved  power,  and  the  judicial  officers  appointed 
under  it  being  a  means  or  instrumentality  employed  to  carry  it  into 
effect,  the  right  and  necessity  of  its  lanimpaired  exercise,  and  the 
exemption  of  the  officer  from  taxation  by  the  general  government 
stand  upon  as  solid  a  ground,  and  are  maintained  by  principles  and 
reasons  as  cogent  as  those  which  led  to  the  exemption  of  the 
Federal  oflB.cer  in  Dobbins   v.   The   Commissioners   of    Erie    from 


SECT.  I.  b.]  THE   COLLECTOR   V.    DAY.  157 

taxation  by  the  State ;  for,  in  this  respect,  that  is,  in  respect  to  the 
reserved  powers,  the  State  is  as  sovereign  and  independent  as  the 
general  government.  And  if  the  means  and  instrumentalities  em- 
ployed by  that  government  to  carry  into  operation  the  powers  granted 
to  it  are  necessarily,  and,  for  the  sake  of  self-preservation,  exempt 
from  taxation  by  the  States,  why  are  not  those  of  the  States 
depending  upon  their  reserved  powers,  for  like  reasons,  equally 
exempt  from  Federal  taxation  ?  Their  unimpaired  existence  in 
the  one  case  is  as  essential  as  in  the  other.  It  is  admitted  that 
there  is  no  express  provision  in  the  Constitution  that  prohibits  the 
general  government  from  taxing  the  means  and  instrumentalities 
of  the  States,  nor  is  there  any  prohibiting  the  States  from  taxing  the^ 
means  and  instrumentalities  of  that  government.  In  both  cases  the" 
exemption  rests  upon  necessary  implication,  and  is  upheld  by  the 
great  law  of  self-preservation;  as  any  government,  whose  means 
employed  in  conducting  its  operations,  if  subject  to  the  control  of  j 
another  and  distinct  government,  can  exist  only  at  the  mercy  of  that 
government.  Of  what  avail  are  these  means  if  another  power  mayy' 
tax  them  at  discretion  ? 

But  we  are  referred  to  tlie  Veazie  Bank  v.  Fenno,  8  "Wall.  533, 
in  support  of  this  power  of  taxation.     That  case  furnishes  a  strong 
illustration  of  the  position  taken  by  the  Chief  Justice  in  McCulloch 
V.  Maryland,  namely,  "  That  the  power  to  tax  involves  the  power  to ; 
destroy." 

The  power  involved  was  one  which  had  been  exercised  by  the 
States  since  the  foundation  of  the  government,  and  had  been,  after 
the  lapse  of  three-quarters  of  a  century,  annihilated  from  excessive 
taxation  by  the  general  government,  just  as  the  judicial  office  in  the 
present  case  might  be,  if  subject,  at  all,  to  taxation  by  that  govern- 
ment. But,  notwithstanding  the  sanction  .  of  this  taxation  by  a 
majority  of  the  court,  it  is  conceded,  in  the  opinion,  that  "  the 
reserved  rights  of  the  States,  such  as  the  right  to  pass  laws ;  to  give 
effect  to  laws  through  executive  action  ;  to  administer  justice  through 
the  courts,  and  to  employ  all  necessary  agencies  for  legitimate  pur- 
poses of  State  government,  are  not  proper  subjects  of  the  taxing 
power  of  Congress."  This  concession  covers  the  case  before  us,  and 
adds  the  authority  of  this  court  in  support  of  the  doctrine  which  we 
have  endeavored  to  maintain.  Judgment  affirmed} 

1  Mr.  Justice  Bradley  dissented. 

In  South  Carolina  v.  United  States,  199  U.  S.  437,  26  Sup.  Ct.  Kep.  110  (190.5), 
it  was  held  that  "  the  exemption  of  State  agencies  and  instrumentalities  from  National 
taxation  is  limited  to  those  which  are  of  a  strictly  governmental_character»  and  does 
not  extend  to  those  ^Vhich  are  used  by  the  StateliT  tlie  carrying  on  of  an  ordinary 
private  business,"  such  as  that  of  selling  intoxicating  liquors. 


158  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

UNITED   STATES  v.   RAILROAD   COMPANY. 
17  Wallace,  322.    1873. 

[This  suit  was  brought  in  the  Circuit  Court  of  the  United  States 
for  Maryland,  to  recover  as  internal  revenue  five  per  cent  of  the  in- 
terest payable  on  its  bonds  by  the  railroad  company  to  the  city  of 
Baltimore,  as  owner  of  such  bonds.  Judgment  having  been  ren- 
dered for  the  Railroad  Company,  the  United  States  brought  the  case 
to  this  court  for  review.] 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

The  creditor  here  is  the  city  of  Baltimore,  and  the  question  then 

( arises  whether  this  tax  can  be  collected  from  the  revenues  of  that 

i  municipal  corporation. 

There  is  no  dispute  about  the  general  rules  of  law  applicable 
to  this  subject.  The  power  of  taxation  by  the  Federal  government 
upon  the  subjects  and  in  the  manner  prescribed  by  the  act  we  are 
considering,  is  undoubted.  There  are,  however,  certain  departments 
which  are  excepted  from  the  general  power.  The  right  of  the  States 
to  administer  their  own  affairs  through  their  legislative,  executive, 
and  judicial  departments,  in  their  own  manner  through  their  own 
agencies,  is  conceded  by  the  uniform  decisions  of  this  court  and  by 
the  practice  of  the  Federal  government  from  its  organization.  This 
/carries  with  it  an  exemption  of  those  agencies  and  instruments,  from 

'  the  taxing  power  of  the  Federal  government.  If  they  may  be  taxed 
lightly,  they  may  be  taxed  heavily;  if  justly,  oppressively.  Their 
operation  may  be  impeded  and  may  be  destroyed,  if  any  interference 
is  permitted.  Hence,  the  beginning  of  such  taxation  is  not  allowed 
on  the  one  side,  is  not  claimed  on  the  other. 

In  the  "  Compendium  of  Internal  Revenue  Law,"  by  Davidge  & 
Kimball,  it  is  said  at  p.  505  :  "  Congress  may  not  tax  the  revenues  of 

^a  State  "  (citing  Sayles  v.  Davis,  22  Wis.  225).  And  again,  "A  na- 
tional bank  cannot  be  called  to  account  for  a  tax  upon  dividends  due 
a  State  on  stock  owned  by  the  State  »  (p.  485 ;  citing  12  Op.  Att'y- 

Gen.  402). 

Again,  "The  term  corporation  as  used  in  the  acts  of  Congress 
touching  internal  revenue  does  not  include  a  State,  consequently  the 
income  of  the  State  of  Georgia  from  the  Western  and  Atlantic  rail- 
road, property  owned,  controlled,  and  managed  by  that  State,  has  not 
been  made  by  law  a  subject  of  taxation  "  (p.  471 ;  citing  State  of 
Georgia  v.  Atkins,  Collector,  8  Int.  Rev.  Rec.  113). 

Again,  "The  term  person  as  used  in  §§  9  and  44  does  not  include 
a  State.  The  receipts  or  certificates  issued  by  the  State  of  Alabama 
are  not  subject  to  the  tax  of  10  per  cent  imposed  by  the  act  of  Con- 


SECT.  I.  b.]  UNITED   STATES   V.   RAILROAD    CO.  159 

gress  of  March  25th,  1867."     12  Opinions  of  the  Attorneys-General, 

The  inquiry  then  arises,  what  is  the  nature  and  character  ot 
municipal  corporations,  and  what  is  their  connection  with  the  gov- 
ernment of  the  State. 

A  writer  on  corporations  says  (Angel  &  Ames  on  Corporations,  §  16 
et  seq!)  that  inferior  and  subordinate  communities,  imperla  in  im- 
perio,  such  as  cities  and  towns,  ...  are  allowed  to  assume  to  them- 
selves some  of  the  duties  of  the  State  in  a  partial  or  detailed  form, 
but  having  neither  property  nor  power  for  the  purposes  of  personal 
aggrandizement,  they  can  be  considered  in  no  other  light  than  as 
auxiliaries  of  the  government,  and  as  the  secondary  deputies  and 
trustees  and  servants  of  the  people.  2  Kent,  4th  ed.  274,  and  De 
Tocqueville,  Democratic,  1,  64,  96. 

It  is  said  further  by  the  same  authority,  the  main  distinction 
between  public  and  private  corporations  is,  that  over  the  former  the 
legislature,  as  guardian  of  the  public  interests,  has  the  exclusive  and 
unrestrained  control ;  and  acting  as  such,  as  it  may  create,  so  it  may 
modify  or  destroy,  as  public  exigency  requires  or  recommends,  or  _ 
the  public  interest  will  be  best  subserved.  It  possesses  the  right 
to  alter,  abolish,  or  destroy  all  such  institutions,  as  mere  municipal 
regulations  must,  from  the  nature  of  things,  be  subject  to  the  abso- 
lute control  of  the  government.  Angel  &  Ames  on  Corporations, 
§  31.  "  Such  institutions  (it  is  added)  are  auxiliaries  of  the  govern- 
ment in  the  important  business  of  municipal  rule." 

A  municipal  corporation  like  the  city  of  Baltimore,  is  a  represen-  \ 
tative  not  only  of  the  State,  but  is  a  portion  of  its  governmental' 
power.  It  is  one  of  its  creatures,  made  for  a  specific  purpose,  to,' 
exercise  within  a  limited  sphere  the  powers  of  the  State.  The  State 
may  withdraw  these  local  powers  of  government  at  pleasure,  and 
may,  through  its  legislature  or  other  appointed  channels,  govern  the 
local  territory  as  it  governs  the  State  at  large.  It  may  enlarge  or 
contract  its  powers  or  destroy  its  existence.  As  a  portion  of  the 
State  in  the  exercise  of  a  limited  portion  of  the  powers  of  the  State, 
its  revenues,  like  those  of  the  State,  are  not  subject  to  taxation. 
This  proposition  is  very  properly  admitted  by  the  counsel  for  the 
government.  In  their  brief  it  is  said,  "  We  admit  that  municipal 
corporations,  acting  merely  within  the  scope  of  their  duties  as  such, 
are  not  to  be  included  within  general  words  imposing  taxes  upon 
persons  or  corporations."  In  support  of  this  view  is  cited  the  pro- 
viso to  the  amendment  in  1866,  in  these  words :  "  Provided  that  it 
is  the  intent  hereby  to  exempt  from  liability  to  taxation  such  State, 
county,  town,  or  other  municipal  corporation,  in  the  exercise  only  of 
functions  strictly  belonging  to  them  in  their  ordinary  governmental 
and  municipal  capacity." 

Assuming  for  the  argument  that  this  qualification  is  well  made, 
let  us  look  at  the  facts  of  the  case  before  us.     The  city  of  Balti- 


.^ 


160  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV.  ^jTi 

more,  with  a  view  to  its  commercial    prosperity,   was    desirous  of  ! 

aiding  in  the  construction  of  a  railroad,  by  which  the  commerce  and  j 

business  of  the  Western  States  would  be  brought  to  that  city.     For  \ 

this  purpose  it  was  authorized  by  the  legislature  to  issue  its  corporate  | 

bonds  for  $5,000,000,  on  which  it  was  to  obtain  the  money.     The  ' 

proceeds  of  these  bonds,  reserving  10  per  cent  as  a  sinking  fund,       ,. 
were  to  be  paid  to  the  railroad  company.     To  secure  the  city  against       /XJ 
loss  and  to  provide  for  the  payment  of  the  interest  on  the  bonds  of  j 

the  city  as  it  should  from  time  to  time  mature,  and  of  the  principal   |       | 
when  payable,  the  railroad  company  were  to  execute  a  mortgage  to  ! 

the  city  upon  its  road  and  franchises  and  revenues.     All  this  was  ' 

done  as  agreed  upon.     The  interest,  secured  by  this  mortgage,  has,  | 

from  time  to  time,  been  paid  by  the  railroad  company  to  the  city,  j 

and  it  is  a  tax  (under  the  122d  section  before  referred  to)  upon  the  , 

interest  thus  paid,  that  the  plaintiff  now  seeks  to  recover.  i 

That  the  State  possessed  the  power  to  confer  this  authority  upon  ] 

the  city,  we  see  no  reason  to  doubt.     Gelpcke  v.  Dubuque,  1  Wall.  \ 

202;  Rogers  v.  Burlington,  3  Wall.  664. 

.  Was  it  exercised  for  the  benefit  of  the  municipality,  that  is  in  the 
course  of  its  municipal  business  or  duties  ?     In  other  words,  was  it  i 

acting  in  its  capacity  of  an  agent  of  the  State,  delegated  to  exercise 
certain  powers  for  the  benefit  of  the  municipality  called  the  city  of 
BaltimoTC  ?     Did  it  act  as  an  auxiliary  servant  and  trustee  of  the  , 

supreme  legislative  power  ?     The  legislature  and  the  authorities  of  i 

the  city  of  Baltimore  decided  that  the  investment  of  $5,000,000  in 
aid  of  the  construction  of  a  railroad,  which  should  bring  to  that  city 
the  unbounded  harvests  of  the  West,  would  be  a  measure  for  the  ■ 

benefit  of  the  inhabitants  of  Baltimore  and  of  the  municipality. 
This  vast  business  was  a  prize  for  which  the  States  north  of  Mary= 
land  were  contending.     Should  it  endeavor  by  the  expenditure  of  ' 

this  money  or  this  credit  to  bring  this  vast  business  into  its  own 
State,  and  make  its  commercial  metropolis  great  and  prosperous, 
or  should  it  refuse  to  incur  hazard,  allow  other  States  to  absorb  this  ! 

commerce,  and  Baltimore  to  fall  into  an  inferior  position  ?     This  | 

was  a  question  for  the  decision  of  the  city  under  the  authority  of 
the  State.  It  was  a  question  to  be  decided  solely  with  reference  to 
public  and  municipal  interests.  The  city  had  authority  to  expend 
its  money  in  opening  squares,  in  widening  streets,  in  deepening 
rivers,  in  building  common  roads  or  railways.  The  State  could  do 
these  things  by  the  direct  act  of  its  legislature  or  it  could  empower  j 
the  city  to  do  them.     It  could  act  directly  or  through  the  agency  of  ; 

others.     It  is  not  a  question  to  be  here  discussed,  whether  the  action  ; 

proposed  would  in  the  end  result  to  the  benefit  of  the  city.  It  might 
be  wise,  or  it  might  prove  otherwise.  The  city  was  to  reap  the 
fruits  in  the  advanced  prosperity  of  all  its  material  interests,  if 
successful.     If  unsuccessful,  the  city  was  to  bear  the  load  of  debt  ■ 

and  taxation,  which  would  surely  follow.     The  city  had  the  power 


SECT.  I.  b.]  UNITED   STATES   V.    RAILROAD    CO.  161 

given  it  by  the  legislature  to  decide  the  question.     It  was  within  , 
the  scope  of  its  municipal  powers. 

This  advance  of  the  city  bonds  was  not  a  donation.     It  was  an  ' 
investment  supposed  to  be  judiciously  made  and  adequately  secured.^ 
It  was  not  for  the  individual  benefit  of  those  managing  the  busi- 
ness.    No  one  received  advantage  except  as  he  was  a  citizen  or  hisl/ 
property  was  within  the  city.     It  was  not  a  loan  for  the  beneht  of 
the  railroad;    it  was  for  the  benefit  of  the  city  solely.     That  the/ 
railroad  company  was  also  benefited  did  not  affect  the  purpose  of  the! 
transaction. 

It  is  said  by  the  counsel  for  the  United  States  that  municipal  cor- 
porations are  those  that  are  created  irrespective  of  those  who  are 
associated   therein,  and  that   the  powers   are   given   and  withheld 
upon  grounds  which  concern  the  public  at  large.     It  is  not  necessary 
to  discuss  the  question  whether  this  city  is  a  municipal  corporation. 
If  there   can  exist  a  municipal    corporation,  as  that  expression  is 
generally  understood,  the   cities  of   this   country,  like   Baltimore, 
Philadelphia,    and   New    York,    fall    within    the   definition.       The 
power  in  question  was  conferred  because  its  exercise  concerned  the 
public  and  to  benefit  that  public.     This  power  could  no  doubt  have 
been  imposed  upon  the  city  as  a  duty,  and  its  exercise  directed  with- 
out the  assent  or  against  the  wish  of  the  corporation  or  its  citizens. 
The  State  could  do  it  directly  for  and  on  behalf  of  the  city,  andv 
without  its  intervention.     The  city  could  act  only  by  authority  from/ 
the  State.     The   State  is  itself   supreme,  and  needs   no   assent   on 
authority  from  the  city.     It  is  not  perceived  that  the   act   is  lessi 
public  and  municipal  in  its  character  than  if  the  State  had   com-l 
pelled  the  city  to  lay  the  tax  and  to  make  the  appropriation  of  the' 
proceeds  to  the  railroad  company.     In  The  Town  of  Guilford  v.  The 
Board  of  Supervisors  of  Chenango  County,  3  Kernan,  143,  it  was 
held : 

1.  That  the  legislature  has  power  to  levy  a  tax  upon  the  taxable 
property  of  a  town,  and  appropriate  the  same  to  the  payment  of 
a  claim  made  by  an  individual  against  the  town. 

2.  That  it  is  not  a  valid  objection  to  the  exercise  of  such  power, 
that  the  claim  to  satisfy  which  the  tax  is  levied  is  not  recoverable 
by  action  against  the  town. 

3.  That  it  does  not  alter  the  case  that  the  claim  has  been  rejected 
by  the  voters  of  the  town,  when  submitted  to  them  at  a  town 
meeting,  under  an  act  of  the  legislature  authorizing  such  submission 
and  declaring  that  their  decision  should  be  final  and  conclusive. 

The  action  is  no  less  a  portion  of  the  sovereign  authority,  when 
it  is  done  through  the  agency  of  a  town  or  city  corporation. 

We  admit  the  proposition  of  the  counsel,  that  the  revenue  must 
be  municipal  in  its  nature  to  entitle  it  to  the  exemption  claimed. 
Thus,  if  an  individual  should  make  the  city  of  Baltimore  his  agent 
and  trustee  to  receive  funds,  and  to  distribute  them  in  aid  of  science, 

11 


162  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

;'  literature,  or  the  fine  arts,  or  even  for  the  relief  of  the  destitute 

I  and  i'nfirm,  it  is  quite  possible  that  such  revenues  would  be  subject 

Vto  taxation.     The  corporation  would  therein  depart  from  its  munic- 

\  ipal  character,  and   assume  the  position  of   a  private   trustee.     It 

would  occupy  a  place  which  an  individual  could  occupy  with  equal 

propriety.     It  would  not  in  that  action  be  an  auxiliary  or  servant 

^f  the  State,  but  of  the  individual  creating  the  trust. 

There  is  nothing  of  a  governmental  character  in  such  a  position. 
It  is  not  necessary,  however,  to  speculate  upon  hypothetical  cases. 

(We  are  clear  in  the  opinion  that  the  present  transaction  is  within 
the  range  of  the  municipal  duties  of  the  city,  and  that  the  tax 
cannot  be  collected.  Judgment  affirmed.'^ 


THOMSON  V.  PACIFIC  EAILEOAD. 
9  Wallace,  579.     1869. 

[Suit  in  the  United  States  Circuit  Court  for  the  District  of  Kansas 
by  stockholders  of  the  Union  Pacific  Eailroad  Company,  Eastern 
Divisiouj  to  restrain  the  company  from  paying  and  county  officers  of 
the  State  of  Kansas  from  collecting  State  taxes  on  the  property  of 
the  company  in  that  State.  On  a  division  of  opinion  by  the  judges 
of  that  court  the  case  was  certified  to  this  court.] 

Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  court. 

The  main  argument  for  the  complainants,  however,  is  that  the 
road,  being  constructed  under  the  direction  and  authority  of  Con- 
gress, for  the  uses  and  purposes  of  the  United  States,  and  being  a 
part  of  a  system  of  roads  thus  constructed,  is  therefore  exempt  from 
taxation  under  State  authority.  It  is  to  be  observed  that  this 
exemption  is  not  claimed  under  any  act  of  Congress.  It  is  not  asserted 
that  any  act  declaring  such  exemption  has  ever  received  the  sanction 
of  the  National  legislature.  But  it  is  earnestly  insisted  that  the 
right  of  exemption  arises  from  the  relations  of  the  road  to  the  Gen- 
eral Government.  It  is  urged  that  the  aids  granted  by  Congress  to 
the  road  were  granted  in  the  exercise  of  its  constitutional  powers  to 
regulate  commerce,  to  establish  post-offices  and  post-roads,  to  raise 
and  support  armies,  and  to  suppress  insurrection  and  invasion  ;  and 
that  by  the  legislation  which  supplied  aid,  required  security,  imposed 
duties,  and  finally  exacted,  upon  a  certain  contingency,  a  percentage 
of  income,  the  road  was  adopted  as  an  instrument  of  the  government, 
and  as  such  was  not  subject  to  taxation  by  the  State. 

1  Mr.  Justice  Bradley  concurred  on  other  grounds,  and  Mr.  Justice  Clifford 
delivered  a  dissenting  opinion  in  which  Mb.  Justice  Miller  concurred. 


SECT.  I.  b.]  THOMSON   V.    PACIFIC   RAILROAD.  163 

The  case  of  IMcCulloch  v.  Maryland  is  much  relied  on  in  support 
of  this  position.  But  we  apprehend  that  the  reasoning  of  the  court 
in  that  case  will  hardly  warrant  the  conclusion  which  counsel  deduce 
from  it  in  this.  In  that  case  the  main  questions  were,  Whether 
the  incorporation  of  the  Bank  of  the  United  States,  with  power  to 
establish  branches,  was  an  act  of  legislation  within  the  constitutional 
powers  of  Congress,  and,  whether  the  bank  and  its  branches,  as 
actually  established,  were  exempt  from  taxation  by  State  legisla- 
tion. Both  questions  were  resolved  in  the  affirmative.  In  deciding 
the  first  the  court  did  not  hold,  as  counsel  suppose,  that  Congress, 
under  the  Constitution,  has  absolute  and  exclusive  power  to  determine 
whether  an  act  of  legislation  is  or  is  not  necessary  and  proper  as  a 
means  for  carrying  into  effect  one  or  more  of  its  enumerated  powers. 
It  defined  the  words  "  necessary  and  proper  "  as  equivalent  in  mean- 
ing to  the  words  "appropriate,  plainly  adapted,  not  prohibited,  but 
consistent  with  the  letter  and  spirit  of  the  Constitution,"  and  held 
that  the  incorporation  of  a  bank  with  branches  was  a  necessary  and 
proper  means  to  the  effectual  exercise  of  granted  power  within  the 
definition  thus  given.  It  held  further  that  Congress  was,  within  this 
limit,  the  exclusive  judge  as  to  the  means  best  adapted  to  the  end 
proposed,  and  that  its  choice  of  any  means  of  the  defined  character 
was  restricted  only  by  its  own  discretion.  But  the  question  whether 
the  particular  means  adopted  was  within  the  general  grant  of  inci- 
dental powers  was  determined  by  the  court.  A  great  part  of  the 
argument  was  directed  to  the  proposition  that  the  incorporation  of  a 
bank  was  an  exercise  of  incidental  power  within  the  true  meaning  of 
the  terms  "  necessary  and  proper,"  as  explained  by  the  court — an 
argument  which  would  have  been  quite  superfluous  if  that  question 
was  to  be  determined  finally  by  the  legislative  and  not  by  the  judicial 
department  of  the  government. 

We  do  not  doubt,  however,  that  upon  the  principles  settled  by  that 
judgment.  Congress  may,  in  the  exercise  of  powers  incidental  to  the 
express  powers  mentioned  by  counsel,  make  or  authorize  contracts 
with  individuals  or  corporations  for  services  to  the  government ;  may 
grant  aids,  by  money  or  land,  in  preparation  for,  and  in  the  perform- 
ance of,  such  services ;  may  make  any  stipulation  and  conditions  in 
relation  to  such  aids  not  contrary  to  the  Constitution ;  and  may 
exempt,  in  its  discretion,  the  agencies  employed  in  such  services  from 
any  State  taxation  which  will  really  prevent  or  impede  the  perform- 
ance of  them. 

But  can  the  right  of  this  road  to  exemption  from  such  taxation  be 
maintained  in  the  absence  of  any  legislation  by  Congress  to  that 
effect. 

It  is  unquestionably  true  that  the  court,  in  determining  the  second 
general  question,  already  stated,  did  hold  that  the  Bank  of  the 
United  States,  with  its  branches,  was  exempt  from  taxation  by  the 
State  of  Maryland,   although  no  express   exemption   was  found  in 


164  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

the  charter.  But  it  must  be  remembered  that  the  Bank  of  the  United 
States  was  a  corporation  created  by  the  United  States ;  and,  as  an 
agent  in  the  execution  of  the  constitutional  powers  of  the  govern- 
ment, was  endowed  by  the  act  of  creation  will  all  its  faculties, 
powers,  and  functions.  It  did  not  owe  its  existence,  or  any  of  its 
qualities,  to  State  legislation.  And  its  exemption  from  taxation  was 
put  upon  this  ground.  Nor  was  the  exemption  itself  without  im- 
portant limitations.  It  was  declared  not  to  extend  to  the  real  prop- 
erty of  the  bank  within  the  State ;  nor  to  interests  held  by  citizens 
of  the  State  in  the  institution. 

In  like  manner  other  means  and  operations  of  the  government  have 
been  held  to  be  exempt  from  State  taxation :  as  bonds  issued  for 
money  borrowed,  Weston  v.  City  of  Charleston,  2  Pet.  467  ;  certifi- 
cates of  indebtedness  issued  for  money  or  supplies,  The  Banks  v. 
The  Mayor,  7  Wall.  24 ;  bills  of  credit  issued  for  circulation.  Bank 
V.  Supervisors,  lb.  28.  There  are  other  instances  in  which  exemp- 
tion, to  the  extent  it  is  established  in  McCulloch  v.  Maryland,  might 
have  been  held  to  arise  from  the  simple  creation  and  organization 
of  corporations  under  acts  of  Congress,  as  in  the  case  of  the  National 
banking  associations ;  but  in  which  Congress  thought  fit  to  prescribe 
the  extent  to  which  State  taxation  may  be  applied.  Van  Allen  v. 
The  Assessors,  3  Id.  573;  Bradley  v.  The  People,  4  Id.  459;  People 
V.  Commissioners,  lb.  244.  In  all  these  cases,  as  in  the  case  of  the 
Bank  of  the  United  States,  exemption  from  liability  to  taxation  was 
maintained  upon  the  same  ground.  The  State  tax  held  to  be  repug- 
nant to  the  Constitution  was  imposed  directly  upon  an  operation  or 
an  instrument  of  the  government.  That  such  taxes  cannot  be  imposed 
on  the  operations  of  the  government,  is  a  proposition  which  needs  no 
argument  to  support  it.  And  the  same  reasoning  will  apply  to  in- 
struments of  the  government,  created  by  itself  for  public  and  consti- 
tutional ends.  But  we  are  not  aware  of  any  case  in  which  the  real 
estate,  or  other  property  of  a  corporation  not  organized  under  an  act 
of  Congress,  has  been  held  to  be  exempt,  in  the  absence  of  express 
legislation  to  that  effect,  to  just  contribution,  in  common  with  other 
property,  to  the  general  expenditure  for  the  common  benefit,  because 
of  the  employment  of  the  corporation  in  the  service  of  the  govern- 
ment. 

It  is  true  that  some  of  the  reasoning  in  the  case  of  McCulloch  v. 
[Maryland  seems  to  favor  the  broader  doctrine.  But  the  decision  it- 
self is  limited  to  the  case  of  the  bank,  as  a  corporation  created  by  a 
law  of  the  United  States,  and  responsible,  in  the  use  of  its  franchises, 
to  the  government  of  the  United  States. 

And  even  in  respect  to  corporations  organized  under  the  legislation 
of  Congress,  we  have  already  held,  at  this  term,  that  the  implied  limi- 
tation upon  State  taxation,  derived  from  the  express  permission  to 
tax  shares  in  the  National  banking  associations,  is  to  be  so  construed 
as  not  to  embarrass  the  impositioa  or  collection  of  State  taxes  to  the 


SECT.  I.  b.]  THOMSON    V.    PACIFIC    RAILROAD.  165 

extent  of  the  permission  fairly  and  liberally  iuterpeted.     National 
Bank  V.  Commonwealth,  supra,  353;  Lionberger  v.  Eowse,  supm,  488. 

We  do  not  think  ourselves  warranted,  therefore,  in  extending  the  ex- 
emption established  by  the  case  of  McCuUoch  v.  Maryland  beyond  its 
terras.  We  cannot  apply  it  to  the  case  of  a  corporation  deriving  its 
existence  from  State  law,  exercising  its  franchise  under  State  law, 
and  holding  its  property  within  State  jurisdiction  and  under  State 
protection. 

We  do  not  doubt  the  propriety  or  the  necessity,  under  the  Con- 
stitution, of  maintaining  the  supremacy  of  the  General  Government 
within  its  constitutional  sphere.  We  fully  recognize  the  soundness 
of  the  doctrine,  that  no  State  has  a  ''  right  to  tax  the  means  employed 
by  the  government  of  the  Union  for  the  execution  of  its  powers."  But 
we  think  there  is  a  clear  distinction  between  the  means  employed  by  the 
government  and  the  propert}""  of  agents  employed  by  the  government. 
Taxation  of  the  agency  is  taxation  of  tlie  means ;  taxation  of  the 
property  of  the  agent  is  not  always,  or  generally,  taxation  of  the 
means. 

No  one  questions  that  the  power  to  tax  all  property,  business,  and 
persons,  within  their  respective  limits,  is  original  in  the  States  and 
has  never  been  surrendered.  It  cannot  be  so  used,  indeed,  as  to 
defeat  or  hinder  the  operations  of  the  National  government ;  but  it 
will  be  safe  to  conclude,  in  general,  in  reference  to  persons  and  State 
corporations  employed  in  government  service,  that  when  Congress 
has  not  interposed  to  protect  their  property  from  State  taxation,  such 
taxation  is  not  obnoxious  to  that  objection.  Lane  County  v.  Oregon, 
7  Wall.  77;  National  Bank  v.  Commonwealth,  supra,  353. 

We  perceive  no  limits  to  the  principle  of  exemption  which  the 
complainants  seek  to  establish.  It  would  remove  from  the  reach  of 
State  taxation  all  the  property  of  every  agent  of  the  government. 
Every  corporation  engaged  in  tlie  transportation  of  mails,  or  of  gov- 
ernment property  of  any  description,  by  land  or  water,  or  in  supply- 
ing materials  for  the  use  of  the  government,  or  in  performing  any 
service  of  whatever  kind,  might  claim  the  benefit  of  the  exemption. 
The  amount  of  property  now  held  by  such  corporations,  and  having 
relations  more  or  less  direct  to  tlie  National  government  and  its  ser- 
vice, is  very  great.  And  this  amount  is  continually  increasing;  so 
that  it  may  admit  of  question  whether  the  whole  income  of  the  prop- 
erty which  will  remain  liable  to  State  taxation,  if  the  principle  con- 
tended for  is  admitted  and  applied  in  its  fullest  extent,  may  not 
ultimately  be  found  inadequate  to  the  support  of  the  State  govern- 
ments. 

The  nature  of  the  claims  to  exemption  which  would  be  set  up,  is 
well  illustrated  by  that  which  is  advanced  in  behalf  of  the  complain- 
ants in  the  case  before  us.  The  very  ground  of  claim  is  in  the 
bounties  of  the  General  Government.  The  allegation  is,  that  the 
government   has   advanced   large   sums    to    aid   in   construction    of 


166  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

the  road;  has  conteuted  itself  with  the  security  of  a  second  mort- 
gage ;  has  made  large  grants  of  land  upon  no  condition  of  benefit  to 
itself,  except  that  the  company  will  perform  certain  services  for  full 
compensation,  independently  of  tliose  grants;  and  will  admit  the  gov- 
ernment to  a  v^ery  limited  and  wholly  contingent  interest  in  remote 
net  income.  And  because  of  these  advances  and  these  grants,  and 
this  fully  compensated  employment,  it  is  claimed  that  this  State  cor- 
poration, owing  its  being  to  State  law,  and  indebted  for  these  benefits 
to  the  consent  and  active  interposition  of  the  State  legislature,  has  a 
constitutional  right  to  hold  its  property  exempt  from  State  taxation  ; 
and  this  without  any  legislation  on  the  part  of  Congress  which  indi- 
cates that  such  exemption  is  deemed  essential  to  the  full  performance 
of  its  obligations  to  the  government. 

We  are  uuable  to  find  in  the  Constitution  any  warrant  for  the 
exemption  from  State  taxation  claimed  in  behalf  of  the  complainants  ; 
and  must,  therefore,  answer  the  question  certified  to  us 

In  the  affirmative} 

1  In  T?AiLROAD  Company  v.  Penistox,  18  Wa]].  5  (1873),  the  same  question  arose 
in  regard  to  the  taxation  by  the  State  officers  of  Nebraska,  of  the  property  of  tlie  Union 
Pacific  Railroad  Companj'.  ilR.  Justice  Strong,  delivering  the  opinion  of  the  Court, 
uses  this  language  :  — 

"  It  is,  however,  insisted  that  the  case  of  Thompson  v.  The  Union  Pacific  Railroad 
Company  differs  from  the  case  we  have  now  in  hand  in  the  fact  that  it  was  incorpo- 
rated by  the  Territorial  legislature  and  the  legislature  of  the  State  of  Kansas,  while 
these  complainants  were  incorporated  by  Congress.  We  do  not  perceive  tliat  tliis 
presents  any  reason  for  the  application  of  a  rule  different  from  that  which  was  applied 
in  tlie  former  case.  It  is  true  that,  in  the  opinion  delivered  by  the  Chief  Justice, 
reference  was  made  to  the  fact  that  the  defendants  were  a  State  corporation,  and  an 
argument  was  attempted  to  be  drawu  from  this  to  distinguish  the  case  from  IMcCulloch 
V.  The  State  of  Maryland,  4  Wheat.  316.  But  wlieu  the  question  is,  as  in  the  present 
case,  whether  the  taxation  of  property  is  taxation  of  means,  instruments,  or  agencies 
by  which  the  United  States  carries  out  its  powers,  it  is  impossible  to  see  how  it  can  be 
pertinent  to  incjuire  whence  the  property  originated,  or  from  whom  its  present  owners 
obtained  it.  The  United  States  have  no  more  ownership  of  the  road  authorized  by 
Congress  than  they  had  in  the  road  authorized  by  Kansas.  If  the  taxation  of  either 
is  unlawful,  it  is  because  the  States  cannot  obstruct  the  exercise  of  National  powers. 
As  was  .said  in  AVeston  v.  Ciiarleston,  2  Pet.  467,  they  cannot,  by  taxation  or  other- 
wise, "  retard,  impede,  burden,  or  in  any  manner  control  the  operation  of  the  constitu- 
tional laws  enacted  by  Congress  to  carry  into  execution  the  powers  vested  in  the 
General  Government."  The  implied  inhibition,  if  any  exists,  is  against  such  obstruc- 
tion, and  that  must  be  the  same  whether  the  corporation  whose  property  is  taxed  was 
created  by  Congress  or  by  a  State  legislature. 

"It  is,  therefore,  manifest  that  exemption  of  Federal  agencies  from  State  taxation 
is  dependent,  not  upon  the  nature  of  the  agents,  or  upon  the  mode  of  their  constitu- 
tion, or  upon  the  fact  that  they  are  agents,  but  upon  the  effect  of  the  tax  ;  that  is, 
upon  the  question  whether  the  tax  does  in  truth  deprive  them  of  power  to  serve  the 
government  as  they  were  intended  to  serve  it,  or  does  hinder  the  efficient  exercise 
of  their  power.  A  tax  upon  their  property  has  no  such  necessary  effect.  It  leaves 
them  free  to  discharge  the  duties  they  have  undertaken  to  perform.  A  tax  upon  their 
operations  is  a  direct  obstruction  to  the  exercise  of  Federal  powers. 

"  In  this  case  the  tax  is  laid  upon  the  property  of  the  railroad  company  precisely  as 
was  the  tax  complained  of  in  Thompson  v.  Union  Pacific.     It  is  not  imposed  upon  the 


SECT.  I.  b.]       CALIFORNIA    V.    CENTRAL   PACIFIC   EAILROAD    CO. 


CALIFORNIA  v.  CENTRAL  PACIFIC  RAILROAD  COMPANY.-^ 
127  United  States,  1.     1887. 

[This  case,  with  others  decided  at  the  same  time,  involved  the 
validity  of  taxes  assessed  by  the  State  of  California  upon  the  prop- 
erty of  the  respective  companies,  inrludin g fyrui.eh.i'ip.^^onf erred biiJihe 
United  St^^s,  which  it  was  insisted  by  the  companies  are  not  taxable 
without  the  consent  of  Congress.  All  the  suits  were  commenced  in 
the  State  Courts  and  removed  by  the  various  defendants  to  the  Circuit 
Court  of  the  United  States,  and,  in  each,  judgment  was  rendered  for 
defendant,  to  review  which  the  plaintiff  below  in  each  case  sued  out 
a  writ  of  error.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

Assuming,  then,  that  the  Central  Pacific  Railroad  Company  has  re-  - 
ceived-the  important  Ji-^anchises  referred  to  by  grant  of  the  United 
States,  the  question  arises  whether  they  are  legitimate  subjects  of 
taxation   by  the    State.      They  were   granted   to   the   company  tor  ft 
national  purposes  and  to  subserve   national  ends.     It  seems  very! 
clear  that  the  State  of  California  can  neither  take  them  away,  nor- 
destroy  nor  abridge  them,  nor  cripple  them  by  onerous  burdens.     Can 
it  tax  them  ?     It  may  jindoubtedly  tax  _Qiitaide-„visible_j3roj3erty  oL 
the  company,  situated  within  the  State.     That  is  a  different  thing. 
Hut  may  it  tax  franchises_\vhich  are  tlie  grant  of  the  United  States? 
In  o"ur7udgmenf7^tliarinot.     What  is  aTranchise  ?     Under  the  Eng- 
lish  law  Blackstone  defines  it  as  "  a  royal  privilege   or  branch  of  the 
king's  prerogative,  subsisting  in  the  hands  of  a  subject."     2  Bl.  Com. 
37.     Generalized,  and  divested  of  the  special  form  which  it  assumes 
under  a  monarchial  government  based  on  feudal  traditions,  a  franchise 
is  a  right,  privilege  or  power  of  public  concern,  which  ought  not  to  be 
exercised  by  private  individuals  at  their  mere  will  and  pleasure,  but 
should  be  reserved  for  public  control  and  administration,  either  by 
the  government  directly,  or  by  public  agents,  acting  under  such  con- 
ditions and  regulations  as  the  government  may  ifnpose  in  the  public 
interest,  and  for  the  public  security.     Such  rights  and  powers  must 

fraiicliises  or  the  right  of  the  company  to  exist  and  perform  the  functions  for  which  it 
was  brought  into  being.  Nor  is  it  laid  upon  any  act  which  the  coni])any  lias  been 
authorized  to  do.  It  is  not  the  transmission  of  dispatches,  nor  the  transportation  of 
United  States  mail.-?,  or  troops,  or  munitions  of  war  that  is  taxed,  but  it  is  exclusively 
the  real  and  personal  property  of  the  agent,  taxed  in  common  with  all  other  property 
in  the  State  of  a  similar  character.  It  i.s  impossible  to  maintain  that  this  is  an  inter- 
ference with  the  exercise  of  any  power  belonging  to  the  General  Government,  and  if  it 
is  not,  it  is  prohibited  by  no  constitutional  imjjlication." 

Mr.  Jtstice  Swayxe  concurred  specially,  and  Mr.  Justice  Bradlet  delivered  a 
dissenting  opinion  in  which  Mu.  Justice  Field  concurred. 


168  THE   LEGISLATIVE   DEPAKTMENT.  [CHAP.  IV. 

exist  under  every  form  of  societ}^  They  are  always  educed  by  the 
laws  and  customs  of  the  community.  Under  our  system,  their  ex- 
istence and  disposal  are  under  the  control  of  the  legislative  depart- 
ment of  the  government,  and  they  cannot  be  assumed  or  exercised 
without  legislative  authority.  No  private  person  can  establish  a 
public  highway,  or  a  public  ferry,  or  railroad,  or  charge  tolls  for  the 
use  of  the  same,  without  authority  from  the  legislature,  direct  or  de- 
rived. These  are  franchises.  No  private  person  can  take  another's 
property,  even  for  a  public  use,  without  such  authority ;  which  is  the 
same  as  to  say,  that  the  right  of  eminent  domain  can  only  be  exer- 
cised by  virtue  of  a  legislative  grant.  This  is  a  franchise.  No  per- 
sons can  make  themselves  a  body  corporate  and  politic  without  legis- 
lative authority.  Corporate  capacity  is  a  franchise.  The  list  might 
be  continued  indefinitely. 

In  view  of  this  description  of  the  nature  of  a  franchise,  how  can  it 
be  possible  that  a  franchise  granted  by  Congress  can  be  subject  to 

i taxation  by  a  State  without  the  consent  of  Congress  ?     Taxation  is  a 
burden,  and  may  be  laid  so  heavily  as  to  destroy  the  thing  taxed,  or 
render  it  valueless.     As  Chief  Justice  Marshall  said  in  McCulloch  v. 
Maryland,    "the    power   to   tax   involves   the   pojwer  to   destroy." 
Eecollectiiig  the  fundamental  principle  that  the  ConsEituETon',' laws 
and  treaties  of  the  United  States  are  the  supreme  law  of  the  land,  it 
seems  to  us  almost  absurd  to  contend  that  a  power  given  to  a  person 
or  corporation  by  the  United  States  may  be  subjected  to  taxation  by 
i  a  State.     The  po-wer  conferred  emanates  from,  and  is  a  j)ortion  of, 
(the  power  of  the  government  that  confers  it.     To  tax  it,  is  not  only 
VTerogatory  to  the  dignity,  but  subversive  of  the  powers  of  the  gov- 
V^rnment,  and  repugnant  to  its  paramount  sovereignty.     It  is  unneces- 
sary to  cite  cases  on  this  subject.     The  principles  laid  down  by  this 
court  in  McCulloch  v.  Maryland,  4  Wheat.  316 ;    0sborn  v.  The  Bank 
of  the  United  States,  9  Wheat.  738 ;  and  Brown  v.  Maryland,  12  Wheat, 
419;  and  in  numerous  cases  since  which  have  followed  in  their  lead, 
abundantly  sustain  the  views  we  have  expressed.     It  may  be  added 
that  these  views  are  not  in  conflict  with  the  decisions  of  this  court  in 
Thomson  v.  Pacific  Railroad,  9  Wall.  579,  and  Railroad  (Do.  v.  Penis- 
ton,  18  Wall.  5.     As  explained  in  the  opinion  of  the  court  in  the 
I  latter  case,  the  tax  there  was  upon  the  property  of  the  company  and 
•  not  upon  its  franchises  or  operations.     18  Wall.  35,  37. 

The  taxation  of  a  corporate  franchise  merely  as  such,  unless  pur- 
suant to  a  stipulation  in  the  original  charter  of  the  company,  is  the 
exercise  of  an  authority  somewhat  arbitrary  in  its  character.  It  has 
no  limitation  but  the  discretion  of  the  taxing  power.  The  value  of 
the  franchise  is  not  measured  like  that  of  property,  but  may  be  ten 
thousand  or  ten  hundred  thousand  dollars,  as  the  legislature  may 
choose.  Or,  without  any  valuation  of  the  franchise  at  all,  the  tax 
may  be  arbitrarily  laid.  It  is  not  an  idle  objection,  therefore,  made 
by  the  company  against  the  tax  imposed  in  the  present  cases. 


SECT.  I.  b.]       CALIFORNIA    V.    CENTRAL   PACIFIC   RAILROAD    CO.  169 

[The  court  then  considers  the  case  of  the  Southern  Pacific  Kail- 
road,  which  it  finds  to  be  also  a  corporation  created  under  the  statutes 
of  California  but  enjoying  important  franchises  granted  to  it  by  the 
United  States.     The  judgments  in  all  the  cases  are  affirmed.^] 


^^: 


>,., 


I 


i  In  Central  Pacific  Railroad  Company  v.  California,  162  U.  S.  91  (1895), 
further  question  was  made  as  to  the  validity  of  State  taxes.  The  following  extracts 
from  the  opinion  by  Mr.  Chief  Justice  Fuller  will  sufficiently  show  the  views  of  -^  ^"X 

the  court. 

*'  Although  the  Central  Pacific  company  is  not  a  Federal  corporation,  it  is  never- 
theless true  that  important  franchises  were  conferred  upon  the  company  by  Congress, 
including  tliat  of  constructing  a  railroad  from  the  Pacific  ocean  to  Ogden  in  the  Ter- 
ritory  of  Utah.     But  as  remarked  in  California  v.  Central  Pacific  Railroad,  127  U.  S.       -^»    ^  v  ; 

1,  38,  40,  '  this  important  grant,  though  in  part  collateral  to,  was  independent  of,  that  *y  f^  .  ', 
made  to  the  company  by  the  State  of  California,  and  has  ever  since  been  possessed  ^"-^  C  C. 
and  enjoyed.'  That  case  came  up  from  the  Circuit  Court  of  the  United  States  for  tlie 
Northern  District  of  California,  and  the  Circuit  Court  found  that  the  assessment  made 
by  the  State  Board  of  Equalization  '  included  the  full  value  of  all  franchises  and  cor- 
porate  powers,  held  and  exercised  by  the  defendant';  and  as  it  could  not  be  denied 
that  that  embraced  frauchi.ses  conferreil  by  the  United  States,  it  was  held  that  the 
assessment  was  invalid,  but  it  was  not  held  nor  intimated  that  if  the  Board  of  Equal- 
ization had  only  included  the  State  franchise,  -the  same  result  would  have  followed. 

[After  quoting  from  the  opinion  of  Mr.  Justice  Bradley  the  Court  continues:]  *•    v^ 

"  Thus  it  was  reaffirmed  that  the  property  of  a  corporation  of  the  United  States  1 

might  be  taxed,  though  its  franchises,  as  for  instance  its  corporate  capacity  and  its  '     I 

power  to  transact  its  appropriate  business  and  charge  therefor,  could  not  be.     It  may  ('      i 

be  regarded  as  firmly  settled  that  although  corporations  may  be  agents  of  the  United  \     I 

States,  their  property  is  not  the  property  of  the  United  States,  but  the  property  of  the  i 

agents,  and  that  a  State  may  tax  the  property  of  the  agents,  subject  to  the  limitations  1 

pointed  out  in  Railroad  Co.  v.  Peniston.     Van  Brocklin  v.  Tennessee,  117  U.  S.  151,  ! 

177. 

''Of  course,  if  Congress  should  think  it  necessary  for  the  protection  of  the  United  ' 

States  to  declare  such  property  exem])ted,  that  would  present  a  different  question.  ,j 

Congress  did  not  see  fit  to  do  so  here,  and  unless  we  are  prepared  to  overrule  a  long  i 

line  of  well  considered  decisions  the  case  comes  within  the  rule  therein  laid  down. 
Althougli  in  Tliomson's  case  it  was  tangible  property  that  was  taxed,  that  can  make  - 

no  difference  in  principle,  and  the  reasoning  of  tlie  opinion  applies. 

"Under  the  laws  of  California  plaintiff  in  error  obtained  from  tlie  State  the  right 
and  privilege  of  corporate  capacity ;  to  construct,  maintain,  and  operate ;  to  charge 
and  collect  fares  and  freights  ;  to  exercise  the  power  of  eminent  domain  ;  to  acquire 
and  maintain  right  of  way  ;  to  enter  upon  lands  or  waters  of  any  person  to  survey 
route ;    to  construct   road  across,  along,  or  upon  any  stream,  watercour.se,  roadstead,  i 

bay,  navigable  stream,  street,  avenue,  higliway  or  across  any  railway,  canal,  ditch  or 
flume ;  to  cross,  intersect,  join  or  unite  its  raili-oad  with  any  other  railroad  at  any  point  i 

on  its  route  ;  to  accjuire  right  of  way,  roadbed,  and  material  for  construction  ;  to  take  I 

material  from  the  lands  of  the  .State,  etc.,  etc.     Stat.  Cal.  1861,  c.  532,  607;  2  Deer-  i 

ing's  Annotated  Codes  and  Stat.  Cal.  114.  I 

"  It  is  not  to  be  denied  that  such  rights  and  privileges  have  value  and  constitute 
taxable  property."  \ 

This  result  was  specially  concurred  in  by  Mr.  Justice  White,  while  ^Ir.  Justice 
Field  and  Mr.  Justice  Harlan  rendered  dissenting  opinions. 


170  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 


'^ 


BANK   OF   COMMERCE  v.   NEW  YOEK  CITY. 

2  Black,  620.     1862. 


]\[r.  Justice  Nelsox.  This  is  a  writ  of  error  to  the  Court  of 
Appeals  of  the  State  of  New  York. 

The  question  involved  in  this  case  is,  whether  or  not  the  stock  of 
/the  United  States,  constituting  a  part  or  the  whole  of  the  capital 
I  stock  of  a  bank  organized  under  the  banking  laws  of  New  York,  is 
\sub3ect  to  State  taxation.  The  capital  of  the  bank  is  taxed  under 
(listing  laws  in  that  State  upon  valuation  like  the  property  of  in- 

•  dividual  citizens,  and  not  as  formerly  on  the  amount  of  the  nominal 
^capital,  without  regard  to  loss  or  depreciation. 

According  to  that  system  of  taxation  it  was  immaterial  as  to  the 
character  or  description  of  property  which  constituted  the  capital  as 
the  tax  imposed  was  wholly  irrespective  of  it.  The  tax  was  like  one 
annexed  to  the  franchise  as  a  royalty  for  the  grant.     But  since  the 

(change  of  this  system  it  is  agreed  the  tax  is  upon  the  property  con- 
stituting the  capital. 

^  This  stock  then  is  held  by  the  bank  the  same  as  such  stocks  are 
held  by  individuals  and  alike  subject  to  taxation,  or  exemption  by 
State  authority.  On  the  part  of  the  bank  it  is  claimed  that  the  ques- 
tion was  decided  in  the  case  of  Weston,  et  als.  v.  Tlie  City  Councils 
of  Charleston,  2  Pet.  449,  in  favor  of  exemption.  In  that  case 
the  stocks   were  in  the  hands  of  individuals  which  were  taxed  by 

•  the  city  authorities  under  a  law  of  the  State.  The  Court  held  the 
law  imposing  the  tax  unconstitutional.  This  decision  would  seem 
not  only  to  cover  the  case  before  us,  but  to  determine  the  very  point 

^involved  in  it. 

It  has  been  argued,  however,  that  the  form  or  mode  of  levying  the 

tax  under  the  ordinance  of  the  city  of  Charleston  was  different  from 

that  of  the  law  of  New  York,  and  hence  may  well  distinguish  the 

case  and  its  principles  from  the  present  one.     This  difference  con- 

y  sists  in  the  circumstance  that  the  tax  in  the  former  case  was  imposed 

:  on  the  stock,  eo  nomine^  whereas  in  the  present  it  is  taxed  in  the 

•  aggregate  of  the  tax-payer's  property,  and  to  be  valued  at  its  real 
-  worth  in  the  same  manner  as  all  other  items  of  his  taxable  property. 
:  The  stock  is  not  taxed  by  name,  and  no  discrimination  is  made  in 
,  favor  or  against  it,  but  is  regarded  like  any  other  security  for  inoney 
=  or  chose  in  action. 

It  is  true  that  the  ordinance  imposing  the  tax  in  the  case  of  Weston 
V.  The  City  of  Charleston,  did  discriminate  between  the  stock  of 
the  United  States  and  other  property  —  that  is,  the  ordinance  did  not 
purport  to  impose  a  tax  upon  all  the  property  owned  by  the  tax- 
payers of  the  city,   and  specially   excepted  certain   property   alto. 


SECT.  I.  b.]  BANK    OF    COMMERCE    V.    NEW    YORK    CITY.  171 

getlier  from  taxation.  The  only  uniformity  in  tlie  taxation  was, 
that  it  was  levied  equally  upon  the  articles  enumerated,  and  which 
were  taxed.  To  this  extent  it  might  be  regarded  as  a  tax  on  the 
stock  eo  nomine. 

But  does  this  distinction  thus  put  forth  between  the  two  cases  dis- 
tinguish them  in  principle?  The  argument  admits  that  a  tax  eo' 
nomine,  or  one  that  distinguishes  unfavorably  the  stock  of  the  United 
States  from  the  other  property  of  the  tax  payer,  cannot  be  upheld. 
Why?  Because,  as  is  said,  if  this  power  to  discriminate  be  ad- 
mitted to  belong  to  the  State  it  might  be  exercised  to  the  destruc- 
tion of  the  value  of  the  stock,  and  consequently  of  the  power  or 
function  of  the  Federal  Government  to  issue  it  for  any  practical 
uses. 

It  will  be  seen,  therefore,  that  the  distinction  claimed  rests  upon  a 
limitation  of  the  exercise  of  the  taxing  power  of  the  State;  that  if  the 
tax  is  imposed  indiscriminately  upon  all  the  property  of  the  individ 
ual  or  corporation,  the  stock  maybe  included  in  the  valuation  ;  if  not,, 
it  must  be  excluded  or  cannot  be  reached.  The  argument  concedes 
that  the  Federal  stock  is  not  subject  to  the  general  taxing  power  of 
the  State,  a  power  resting  in  the  discretion  of  its  constituted  authori- 
ties as  to  the  objects  of  taxation,  and  the  amount  imposed.  It  is 
true  that  in  many,  if  not  in  all  of  the  constitutions  of  the  States,  pro- 
visions will  be  found  confining  the  power  of  the  Legislature  to  the 
passage  of  uniform  laws  in  the  taxation  of  the  real  and  personal 
property  within  her  jurisdiction.  But  this  is  a  restraint  upon  the 
power  imposed  by  the  State  itself.  In  the  absence  of  any  such 
restriction  discrimination  in  the  tax  would  rest  in  the  discretion  of 
the  Legislature.  Whether  regulated  by  the  constitution  or  by  the 
act  of  the  Legislature  is  a  question  of  State  policy,  to  be  determined 
by  the  people  in  convention  or  by  the  Legislature.  In  either  case  the 
power  to  discriminate  or  not  is  in  the  State.  How  then  can  this 
limitation  upon  the  taxing  power  of  a  State,  which  the  argument 
assumes  may  be  used  to  discriminate  against  the  Federal  stocks,  be 
enforced  ?  The  power  to  enforce  it  must  be  independent  of  the  State 
to  be  effectual.  There  can  be  but  one  answer  to  this  question,  and 
that  is  :  by  the  supreme  judicial  tribunal  of  the  Union.  But  is  this 
Court  a  fit  tribunal  to  sit  in  judgment  upon  the  question  whether  the 
Legislature  of  a  State  has  exercised  its  taxing  power  wisely  or  un- 
wisely over  objects  of  taxation  confessedly,  as  the  argument  assumes, 
within  its  discretion  ? 

And  is  the  question  a  judicial  question  ?  We  think  not.  There  is 
and  must  always  be  a  considerable  latitude  of  discretion  in  every 
wise  government  in  the  exercise  of  the  taxing  power,  both  as  to  the 
objects  and  the  amount,  and  of  discrimination  in  respect  to  both. 
Property  invested  in  religious  institutions,  seminaries  of  learning, 
charitable  institutions,  and  the  like,  are  examples.  Can  any  court 
say  that  these  are  discriminations   which,  upon  the  argument  that 


172  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

seeks  to  distinguish  the  present  from  the  case  of  Weston  v.  The  City 
of  Charleston,  would  or  would  not  take  it  out  of  that  case  ?  A  court 
may  appropriately  determine  whether  property  taxed  was  or  was  not 
within  the  taxing  power,  but  if  within,  not  that  the  power  has  or  has 
not  been  discreetly  exercised.  We  cannot,  therefore,  yield  our  assent 
to  the  soundness  of  the  distinction  taken  by  the  counsel  between  this 
case  and  the  one  referred  to. 

Upon  looking  at  the  case  of  Weston  v.  The  City  of  Charleston,  it 
will  be  seen  that  the  decision  of  a  majority  of  the  Court  was  not  at 
all  placed  upon  the  distinction  we  have  been  considering,  but  upon 
ground  much  broader  and  wholly  independent  of  it. 

The  tax  upon  the  stocks  was  regarded  as  a  tax  upon  the  exercise  of 
the  power  of  Congress  "to  borrow  money  on  the  credit  of  the  United 
States."  The  exercise  of  this  power  was  interfered  with  to  the 
extent  of  the  tax  imposed  by  the  city  authorities,  that  the  liability 
of  the  certificates  of  stock  to  taxation  by  a  State  in  the  hands  of  an 
individual  affected  their  value  in  the  market,  and  the  free  and  unre- 
strained exercise  of  the  power.  The  Chief  Justice  observes,  that  "  if 
the  right  to  impose  a  tax  exists,  it  is  a  right  which  in  its  nature 
acknowledges  no  limits.  It  may  be  carried  to  any  extent  within  the 
jurisdiction  of  the  State  or  corporation  which  imposes  it,  which  the 
will  of  each  State  or  corporation  may  prescribe." 

He  then  refers  to  the  taxing  power  of  the  State,  its  importance, 
and  extensive  operation,  and  the  delicacy  and  difficulty  of  fixing  any 
limit  to  its  exercise;  and  that  in  the  performance  of  this  duty  which 
had,  in  other  cases,  devolved  on  the  court  it  was  considered  as  a 
necessary  consequence  of  the  supremacy  of  the  Federal  Government 
that  its  action  in  the  exercise  of  its  legitimate  powers  should  be  free 
and  unembarrassed  by  any  conflicting  powers  of  the  States,  and  that 
the  powers  of  a  State  cannot  rightfully  be  so  exercised  as  to  impede 
and  obstruct  the  free  course  of  those  measures  which  this  Govern- 
ment may  rightfully  adopt. 

He  further  observed,  that  "  the  sovereignty  of  a  State  extends  to 
every  thing  which  exists  by  its  own  authority  or  is  introduced  by  its 
permission,  but  not  to  those  means  which  are  employed  by  Congress 
to  carry  into  execution  powers  conferred  on  that  body  by  the  people 
of  the  United  States.  The  attempt  to  use  the  power  of  taxation  on 
■  the  means  employed  by  the  Government  of  the  Union  in  pursuance 
of  the  Constitution,  is  itself  an  abuse,  because  it  is  the  usurpation  of 
a  power  which  the  people  of  a  single  State  cannot  give,"  and  the 
Chief  Justice  then  adds,  '•  a  contract  made  by  the  Government  in  the 
exercise  of  its  powers  to  borrow  money  on  the  credit  of  the  United 
States  is  undoubtedly  independent  of  the  will  of  any  State  in  which 
the  individual  who  lends  may  reside,  and  is  undoubtedly  an  operation 
essential  to  the  important  objects  for  which  the  Government  was 
created." 

It   is   apparent   in  studying  this  opinion  in   connection  with  the 


SECT.  I.  b.]  BANK    OP   COMMERCE   V.   NEW   YORK    CITY.  173 

opinions  of  the  Court  in  the  cases  of  McCulloch  v.  The  State  of 
Maryland,  4  Wheat.  31G,  and  of  Osborne  v.  The  United  States,  9 
Wheat.  732,  that  it  is  but  a  corollary  from  the  doctrines  so  ably  ex- 
pounded by  the  Chief  Justice  in  the  two  previous  cases  in  the  inter- 
pretation of  an  analogous  power  in  the  Constitution. 

The  doctrine  maintained  in  those  cases  is,  that  the  powers  granted 
by  the  people  of  the  States  to  the  General  Government,  and  em- 
bodied in  the  Constitution,  are  supreme  within  their  scope  and 
operation,  and  that  this  Government  may  exercise  these  powers  in 
its  appropriate  departments,  free  and  unobstructed  by  any  State 
legislation  or  authority.  That  within  this  limit  this  Government  is 
sovereign  and  independent,  and  any  interference  by  the  State  gov- 
ernments, tending  to  the  interruption  of  the  full  legitimate  exercise 
of  the  powers  thus  granted,  is  in  conflict  with  that  clause  of  the 
Constitution  which  makes  the  Constitution  and  the  Laws  of  the  United 
States  passed  in  pursuance  thereof  "  the  supreme  law  of  the  land." 

The  results  of  this  doctrine  is,  that  the  exercise  of  any  authority 
by  a  State  government  trenching  upon  any  of  the  powers  granted  to 
the  General  Government  is,  to  the  extent  of  the  interference,  an 
attempt  to  resume  the  grant  in  defiance  of  constitutional  obligation  ; 
and  more  than  this,  if  the  encroachment  or  usurpation  to  any  extent 
is  admitted,  the  principle  involved  would  carry  the  exercise  of  the 
authority  of  the  State  to  an  indefinite  limit,  even  to  the  destruction  , 
of  the  power.  For,  as  truly  said  by  the  Chief  Justice  in  the  case  of 
Weston  V.  The  City  of  Charleston,  in  respect  to  the  taxing  power 
of  the  State,  ''  if  the  right  to  impose  the  tax  exists,  it  is  a  right 
which,  in  its  nature,  acknowledges  no  limit,  it  may  be  carried  to 
any  extent  within  the  jurisdiction  of  the  State  or  corporation 
which  imposes  it,  which  the  will  of  each  State  and  corporation  may 
prescribe." 

An  illustration  of  this  principle  in  respiect  to  the  powers  of  the 
judicial  department  of  this  Government  is  found  in  the  case  of  the 
United    States    v.  Pet.,  5  Cranch,    115.     There   the    Legislature   of 
the  State  of  Pennsylvania  attempted  to  annul  the  judgment  of  a  1 
Court  of  the  United  States,  and  destroy  all  rights  acquired  under  it.  ■ 
It  was  quite  apparent  if  the  exercise  of  that  power  could  be  admitted, 
the   principle   involved  might   annihilate   the    whole    power   of   the 
Federal  Judiciary  within  the  State.     The  act  of  the  Legislature  did\ 
not  profess  to  exercise  this  power  generally,  but  only  in  the  particular \ 
case,  on  the  ground  that   the  Court  had   no  jurisdiction.     But   the  \ 
Chief  Justice,  in  giving  the  opinion  of   the  Court,  very  naturally  \ 
observes,  that  the  right  to  determine  the  jurisdiction  of  the  Courts  \ 
was  not  placed  by  the  Constitution  in  the  State  Legislatures,  but  m_J 
the  supreme  judicial  tribunal  of  the  nation.     If  time  allowed,  many 
other  cases  might  be  referred  to,  illustrating  the  principle  in  respect 
to  other  departments  of  this  Government. 

The  conclusive  answer  to  the  attempted  exercise  of  State  authority 


174  THE   LEGISLATIVE    DEPARTMENT.  [CHAF.  IV. 

in  all  these  cases  is,  that  the  exercise  is  in  derogation  of  tkgj)pwers 
granted  to  the  General  Government,  Avithin  which,  it  is  admitted,  it 
is  supreme.     That  government  wTiose  powers,  executive,  legislative, 
or  judicial,  whether  it  is  a  government  of  enumerated  powers  like 
this  one,  or  not,  are  subject  to  the  control  of  another  distinct  govern- 
ment, cannot  be  sovereign  or  supreme,  but  subordinate  and  inferior 
to  the  other.     This  is  so  palpable  a  truth  that  argument  would  be 
superfluous.     Its  functions  and  means  essential  to  the  administration 
/of  the  Government,  and  the  employment  of  them,  are  liable  to  con- 
stant interruption  and  possible  annihilation.     The  case  in  hand  is  an 
illustration.    The  power  to  borrow  money  on  the  credit  of  the  United 
>  States  is  admitted.     It  is  one  of  the  most  important  and  even  vital 
"] functions  of  the  General  Government,  and  its  exercise  a  means  of 
I  supplying  the  necessary  resources  to  meet   exigencies  in  times   of 
,  peace   or   war.     But   of   what  avail    is   the  function   or   the   means 
if   another    government   may   tax  it   at  discretion.      It  is  apparent 
that   the    power,  function,  or  means,   however  important  and  vital, 
are  at  the  mercy  of  that  government.     And  it  must  be  always  re- 
membered, if  the  right  to  impose  a  tax  at  all  exists  on  the  part  of 
the  other  government,  "it  is   a  right  which  in  its  nature  acknowl- 
edges no   limits."     And  the  principle  is  equally  true  in  respect  to 
every  other  power  or  function  of  a  government  subject  to  the  control 
of  another. 

In  our  complex  system  of  government  it  is  oftentimes  diflficult  to 
fix  the  true  boundary  between  the  two  systems,  State  and  Federal. 
The  Chief  Justice,  in  McCulloch  v.  The  State  of  Maryland,  en- 
deavored to  fix  this  boundary  upon  the  subject  of  taxation.  He 
observed,  "  if  we  measure  the  power  of  taxation  residing  in  a  State 
by  the  extent  of  sovereignty  which  the  people  of  a  single  State 
possess,  and  can  confer  on  its  government,  we  have  an  intelligible 
standard  applicable  to  every  case  to  which  the  power  may  be  applied. 
We  have  a  principle  which  leaves  the  power  of  taxing  the  people  and 
property  unimpaired,  which  leaves  to  a  State  the  command  of  all  its 
resources,  and  which  places  beyond  its  reach  all  those  powers  which 
are  conferred  by  the  people  of  the  United  States  on  the  Government 
of  the  Union,  and  all  those  means  which  are  given  for  the  purpose  of 
carrying  those  powers  into  execution.  We  have  a  principle  w'hich  is 
safe  for  the  States  and  safe  for  the  Union." 

All  will  agree  that  this  is  the  enunciation  of  a  true  principle,  and 
it  is  only  by  a  wise  and  forbearing  application  of  it  that  the  operation 
of  the  powers  and  functions  of  the  two  Governments  can  be  har- 
monized. Their  powers  are  so  intimately  blended  and  connected  that 
it  is  impossible  to  define  or  fix  the  limit  of  the  one  without  at  the 
same  time  that  of  the  other  in  respect  to  any  one  of  the  great  depart- 
ments of  Government.  When  the  limit  is  ascertained  and  fixed,  all 
perplexity  and  confusion  disappear.  Each  is  sovereign  and  indepen- 
dent in  its  sphere  of  action,  and  exempt  from  the  interference  or  con- 


SECT.  I.  b.]  BANK   V.    SUPERVISORS,  175 

trol  of  the  other,  either  in  the  means  employed  or  functions  exercised, 
and  influenced  by  a  public  and  patriotic  spirit  on  botli  sides,  a  conflict 
of  authority  need  not  occur  or  be  feared. 

Judgment  of  the  Court  beloiv  is  reversed. 


BANK  V.   SUPERVISORS. 
7  Wallace,  26.     1868. 

[This  case  and  another  one  just  preceding  it  in  the  same  volume 
of  reports  relate  to  State  taxes  upon  banks,  upon  a  valuation  of  their 
capital  stock  including  certain  obligations  of  the  United  States 
known  as  certificates  of  indebtedness  and  also  certain  other  obliga- 
tions denominated  United  States  Legal  Tender  Notes.  In  the  first 
of  the  two  cases  the  certificates  of  indebtedness  were  held  not  subject 
to  State  taxation.] 

Mr,  Chief  Justice  Chase  delivered  the  opinion  of  the  court. 

The  general  question  requiring  consideration  is  whether  United 
States  notes  come  under  another  rule  in  respect  of  taxation  than 
that  which  applies  to  certificates  of  indebtedness. 

The  issue  of  United  States  notes  were  authorized  by  three  succes- 
sive acts.  The  first  was  the  act  of  February  25,  1862,  12  Stat,  at 
Large,  345;  the  second,  the  act  of  July  11,  1862,  12  Stat,  at  Large, 
532 ;  and  the  third,  that  of  March  3,  1863,  12  Stat,  at  Large,  709. 

Before  either  of  these  acts  received  the  sanction  of  Congress  the 
Secretary  of  the  Treasury  had  been  authorized  by  the  act  of  July  17, 
1861,  Stat,  at  Large,  259,  §  6,  to  issue  treasury  notes  not  bearing 
interest,  but  payable  on  demand  by  the  assistant  treasurers  at  New 
York,  Philadelphia,  or  Boston  ;  and  about  three  weeks  later  these 
notes,  by  the  act  of  August  5,  1861,  Stat,  at  Large,  313,  §  5,  had  been 
made  receivable  generally  for  public  dues.  The  amount  of  notes  to 
be  issued  of  this  description  was  originally  limited  to  fifty  millions, 
but  was  afterwards,  by  the  act  of  February  12,  1862,  Stat,  at  Large, 
338,  increased  to  sixty  millions. 

These  notes,  made  payable  on  demand,  and  receivable  for  all  public 
dues,  including  duties  on  imports  always  payable  in  coin,  were,  prac- 
tically, equivalent  to  coin ;  and  all  public  disbursements,  until  after 
the  date  of  the  act  last  mentioned,  were  made  in  coin  or  these  notes. 

In  December,  1861,  the  State  banks  (and  no  others  then  existed) 
suspended  payment  in  coin ;  and  it  became  necessary  to  provide  by 
law  for  the  use  of  State  bank  notes,  or  to  authorize  the  issue  of  notes 
for  circulation  under  the  authority  of  the  national  government.  The 
latter  alternative  was  preferred,  and  in  the  necessity  thus  recognized 
originated  the  legislation  providing  at  first  for  the  emission  of  United 


176  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

States  notes,  and  at  a  later  period  for  the  issue  of  the  national  bank 
currency. 

Under  the  exigencies  of  the  times  it  seems  to  have  been  thought 
inexpedient  to  attempt  any  provision  for  the  redemption  of  the  United 
States  notes  in  coin.  The  law,  therefore,  directed  that  they  should 
be  made  payable  to  bearer  at  the  treasury  of  the  United  States,  but 
did  not  provide  for  payment  on  demand.  The  period  of  payment 
was  left  to  be  determined  by  the  public  exigencies.  In  the  mean- 
time the  notes  were  receivable  in  payment  of  all  loans,  and  were, 
until  after  the  close  of  our  civil  war,  always  practically  convertible 
into  bonds  of  the  funded  debt,  bearing  not  less  than  five  per  cent, 
interest,  payable  in  coin. 

The  act  of  February  25,  1862,  provided  for  the  issue  of  these  notes 
to  the  amount  of  one  hundred  and  fifty  millions  of  dollars.  The  act 
of  July  11,  18G2,  added  another  hundred  and  fifty  millions  of  dollars 
to  the  circulation,  reserving,  however,  fifty  millions  for  the  redemp- 
tion of  temporary  loan,  to  be  issued  and  used  only  when  necessary 
for  that  purpose.  Under  the  act  of  March  3,  1863,  another  issue  of 
one  hundred  and  fifty  millions  was  authorized,  making  the  whole 
amount  authorized  four  hundred  and  fifty  millions,  and  contemplat- 
ing a  permanent  circulation,  until  resumption  of  payment  in  coin,  of 
four  hundred  millions  of  dollars. 

It  is  unnecessary  here  to  go  further  into  the  history"  of  these  notes, 
or  to  examine  their  relation  to  the  national  bank  currency.  That 
history  belongs  to  another  place,  and  the  quality  of  these  notes,  as 
legal  tenders,  belongs  to  another  discussion.  It  has  been  thought 
proper  only  to  advert  to  the  legislation  by  which  these  notes  were 
authorized,  in  order  that  their  true  character  may  be  clearly 
perceived. 

That  these  notes  were  issued  under  the  authority  of  the  United 
States,  and  as  a  means  to  ends  entirely  within  the  constitutional 
power  of  the  government,  was  not  seriously  questioned  upon  the 
argument. 

But  it  was  insisted  that  they  were  issued  as  money  ;  that  their 
controlling  quality  was  that  of  money,  and  that  therefore  they  were 
subject  to  taxation  in  the  same  manner,  and  to  the  same  extent,  as 
coin  issued  under  like  authority. 

And  there  is  certainly  much  force  in  the  argument.  It  is  clear 
that  these  notes  were  intended  to  circulate  as  money,  and,  with 
the  national  bank  notes,  to  constitute  the  credit  currency  of  the 
country. 

Xor  is  it  easy  to  see  that  taxation  of  these  notes,  used  as  money, 
and  held  by  individual  owners,  can  control  or  embarrass  the  power 
of  the  government  in  issuing  them  for  circulation,  more  than  like 
taxation  embarrasses  its  power  in  coining  and  issuing  gold  and  silver 
money  for  circulation. 

Apart  from  the  quality  of  legal  tender  impressed  upon  them  by 


SECT.  I.  b.]  BANK  V.    SUPERVISORS.  177 

acts  of  Congress,  of  which  we  now  say  nothing,  their  circulation  as 
currency  depends  on  the  extent  to  which  they  are  received  in  pay- 
ment, on  the  quantity  in  circulation,  and  on  the  credit  given  to  the 
promises  they  bear.  In  these  respects  they  resemble  the  bauk  notes 
formerly  issued  as  currency. 

But,  on  the  other  hand,  it  is  equally  clear  that  these  notes  are 
obligations  of  the  United  States.  Their  name  imports  obligation. 
Every  one  of  them  expresses  upon  its  face  an  engagement  of  the 
nation  to  pay  to  the  bearer  a  certain  sum.  The  dollar  note  is  an 
engagement  to  pay  a  dollar,  and  the  dollar  intended  is  the  coined 
dollar  of  the  United  States ;  a  certain  quantity  in  weight  and  fine- 
ness of  gold  or  silver,  authenticated  as  such  by  the  stamp  of  the 
government.  ISTo  other  dollars  had  before  been  recognized  by  the 
legislation  of  the  national  government  as  lawful  money. 

Would,  then,  their  usefulness  and  value  as  means  to  the  exercise 
of  the  functions  of  government,  be  injuriously  affected  by  State 
taxation  ? 

It  cannot  be  said,  as  we  have  already  intimated,  that  the  same 
inconveniences  as  would  arise  from  the  taxation  of  bonds  and  other 
interest-bearing  obligations  of  the  government,  would  attend  the 
taxation  of  notes  issued  for  circulation  as  money.  But  we  cannot 
say  that  no  embarrassment  would  arise  from  such  taxation.  And  we 
think  it  clearly  within  the  discretion  of  Congress  to  determine 
whether,  in  view  of  all  the  circumstances  attending  the  issue  of  the 
notes,  their  usefulness,  as  a  means  of  carrying  on  the  government, 
would  be  enhanced  by  exemption  from  taxation  ;  and  within  the 
constitutional  power  of  Congress,  having  resolved  the  question  of 
usefulness  affirmatively,  to  provide  by  law  for  such  exemption. 

There  remains,  then,  only  this  question,  Has  Congress  exercised 
the  power  of  exemption  ? 

A  careful  examination  of  the  acts  under  which  they  were  issued, 
has  left  no  doubt  in  our  minds  upon  that  point. 

The  act  of  February,  1862,  12  Stat.  346,  §  2,  declares  that  ''all 
United  States  bonds,  and  other  securities  of  the  United  States,  held 
by  individuals,  associations,  or  corporations,  within  the  United  States, 
shall  be  exempt  from  taxation  by  or  under  State  authority.'' 

We  have  already  said  that  these  notes  are  obligations.  They  bind 
the  national  faith.  They  are,  therefore,  strictly  securities.  They 
secure  the  payment  stipulated  to  the  holders,  by  the  pledge  of  the 
national  faith^  the  only  ultimate  security  of  all  national  obligations,, 
whatever  form  they  may  assume. 

And  this  provision  is  re-enacted  in  application  to  the  second  issue 
of  United  States  notes  by  the  act  of  July  11,  1862,  12  Stat.  546. 

And,  as  if  to  remove  every  possible  doubt  from  the  intention  of 
Congress,  the  act  of  March  3,  1863,  12  Stat.  709,  which  provides  for 
the  last  issue  of  these  notes,  omits,  in  its  exemption  clause,  the  word 
"stocks,"  and  substitutes  for  "other  securities,"  the  words  ''treasury 

12 


178  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

notes  or  United  States  notes  issued  under  the  provisions  of  this 
act." 

It  was  insisted  at  the  bar,  that  a  measure  of  exemption  in  respect 
to  the  notes  issued  under  this  —  different  from  that  provided  in  the 
former  acts,  in  respect  to  the  notes  authorized  by  them  —  was  in- 
tended; but  we  cannot  yield  our  assent  to  this  view.  The  rule  estab- 
lished in  the  last  act  is  in  no  respect  inconsistent  with  that  previously 
established.  It  must  be  regarded,  therefore,  as  explanatory.  It 
makes  specific  what  was  before  expressed  in  general  terms. 

Our  conclusion  is,  that  United  States  notes  are  exempt;  and,  at 
the  time  the  New  York  statutes  were  enacted,  were  exempt  from 
taxation  by  or  under  State  authority.  The  judgment  of  the  Court  of 
Appeals  must  therefore  be  Reversed} 


WISCO^^SIN    CENTRAL    RAILROAD    COMPANY    v.    PRICE 

COUNTY. 

133  United  States,  496.     1890. 

In  April,  1884,  the  plaintiff  in  this  suit,  the  Wisconsin  Central 
Railroad  Company,  a  corporation  created  under  the  laws  of  Wiscon- 
sin, was  the  owner  of  certain  lands  situated  in  the  town  of  Worces- 
ter, in  the  county  of  Price,  in  that  State,  and  had  a  patent  for  them 
from  the  State  bearing  date  on  the  25th  of  February,  1884,  upon 
which  taxes  had,  in  the  year  1883,  been  assessed  by  that  county, 
although,  as  claimed  by  the  plaintiff,  the  title  to  a  part  of  these 
lands  was  at  that  time  in  the  United  States,  and  to  the  remainder 
of  them  in  the  State  of  Wisconsin.  Upon  a  claim  that  the  lands 
were  thus  exempt  from  taxation,  the  plaintiff,  in  April,  1884, 
brought  the  present  suit  in  a  Circuit  Court  of  the  State,  to  obtain 
its  judgment  that  the  State  taxes  were  illegal,  and  to  enjoin  proceed- 
ings for  their  enforcement. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

It  is  familiar  law  that  a  State  has  no  power  to  tax  the  property 
of  the  United  States  within  its  limits.  This  exemption  of  their 
property  from  State  taxation  —  and  by  State  taxation  we  mean  any 
taxation  by  authority  of  the  State,  wliether  it  it  be  strictty  for 
State  purposes  or  for  mere  local  and  special  objects  —  is  founded 
upon  that  principle  which  inheres  in  every  independent  government, 
that  it  must  be  free  from  an 3'^  such  interference  of  another  govern- 
ment as  may  tend  to  destroy  its  powers  or  impair  their  efficiency. 

1  By  act  of  Congress  United  States  treasury  notes  are  now  subject  to  State  taxa- 
tion as  other  property.    Act  of  Congress,  August  13th,  1894,  28  Stat.  278. 


SECT.  I.  b.]       WISCONSIN    CENTRAL   RAILROAD    V.    PRICE    CO.  179 

If  the  property  of  the  United  States  could  be  subjected  to  taxation 
by  the  State,  the  object  and  extent  of  the  taxation  would  be  sub- 
ject to  the  State's  discretion.  It  might  extend  to  buildings  and 
other  property  essential  to  the  discharge  of  the  ordinary  business 
of  the  national  government,  and  in  the  enforcement  of  the  tax  those 
buildings  might  be  taken  from  the  possession  and  use  of  the  United 
States.  The  Constitution  vests  in  Congress  the  power  to  "  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property'  belonging  to  the  United  States."  And  this 
implies  an  exclusion  of  all  other  authority  over  the  property 
which  could  interfere  with  this  right  or  obstruct  its  exercise.  Van 
IJrocklin  v.  State  of  Tennessee,  117  U.  S.  lol,  168. 

This  doctrine  of  exemption  from  taxation  of  the  property  of  the 
United  States,  so  far  as  lands  are  concerned,  is  in  express  terms 
affirmed  in  the  constitution  of  Wisconsin,  which  ordains  that  the 
State  "shall  never  interfere  with  the  primary  disposition  of  the  soil 
within  the  same  by  the  United  States,  nor  with  any  regulations 
Congress  may  find  necessary  for  securing  the  title  in  such  soil  to 
bona  fide  purchasers  thereof;  and  no  tax  shall  be  imposed  on  land 
the  property  of  the  United  States."  Constitution  of  1848,  art.  II, 
sec.  2. 

It  follows  that  all  the  public  domain  of  the  United  States  within 
the  State  of  Wisconsin  was  in  1883  exempt  from  State  taxation. 
Usually  the  possession  of  the  legal  title  by  the  government  deter- 
mines both  the  fact  and  the  right  of  ownership.  There  is,  however, 
an  exception  to  this  doctrine  with  respect  to  the  public  domain, 
which  is  as  well  settled  as  the  doctrine  itself,  and  that  is,  that 
where  Congress  has  prescribed  the  conditions  upon  which  portions  of 
that  domain  may  be  alienated,  and  provided  that  upon  the  i)erform- 
ance  of  tlie  conditions  a  patent  of  the  United  States  shall  issue  to 
the  donee  or  purchaser,  and  all  such  conditions  are  complied  with, 
the  land  alienated  being  distinctly  defined,  it  only  remaining  for 
the  government  to  issue  its  jjatent,  and  until  such  issue  holding 
the  legal  title  in  trust  for  him,  who  in  the  meantime  is  not  excluded 
from  the  use  of  the  property  —  in  other  words,  when  the  government 
has  ceased  to  hold  any  such  right  or  interest  in  the  property  as  to 
justify  it  in  withholding  a  patent  from  the  donee  or  purchaser,  and 
it  does  not  exclude  him  from  the  use  of  the  property  —  then  the 
donee  or  purchaser  will  be  treated  as  the  beneficial  owner  of  the 
land,  and  the  same  be  held  subject  to  taxation  as  his  i)roperty.  This 
exception  to  the  general  doctrine  is  founded  upon  the  principle  thnt 
he  who  has  the  right  to  property,  and  is  not  excluded  from  its 
enjoyment,  shall  not  be  permitted  to  use  the  legal  title  of  the  gov- 
ernment to  avoid  his  just  share  of  State  taxation. 

Thus,  in  Carroll  v.  Safford,  3  How.  441,  461,  the  complainant  liad 
entered  certain  lands  belonging  to  the  United  States,  in  the  local 
land  office,  paid  for  them  the  required  price,  and  received  from  the 


180  THE   LEGISLATIVE    DEPARTMExNT.  [CHAP.  IV. 

office  a  land  certificate.  Patents  were  issued  for  them,  but,  before 
their  issue,  the  lands  were  assessed  for  taxation  and  sold  for  the 
taxes.  The  question  whether  they  were  subject  to  taxation  by  the 
State  after  their  entry  and  before  the  patents  were  issued  was  an- 
swered in  the  affirmative.  Said  the  court:  "When  the  land  was 
purchased  and  paid  for,  it  was  no  longer  the  property  of  the  United 
States,  but  of  the  purchaser.  He  held  for  it  a  final  certificate, 
which  could  no  more  be  cancelled  by  the  United  States  than  a 
patent;"  and  again:  "It  is  said  the  fee  is  not  in  the  purchaser,  but 
in  the  United  States,  until  the  patent  shall  be  issued.  This  is  so, 
technically,  at  law,  but  not  in  equity.  The  land  in  the  hands  of 
the  purcliaser  is  real  estate,  descends  to  his  heirs,  and  does  not  go  to 
his  executors  or  administrators."  And  again:  "Lands  which  have 
been  sold  by  the  United  States  can  in  no  sense  be  called  the  property 
of  the  United  States.  They  are  no  more  the  property  of  the  United 
States  than  lands  patented.  So  far  as  the  rights  of  the  purchaser 
are  considered,  they  are  protected  under  the  patent  certificate  as 
full}^  as  under  the  patent.  Suppose  the  officers  of  the  government 
had  sold  a  tract  of  land,  received  the  purchase  money,  and  issued  a 
patent  certificate:  can  it  be  contended  that  they  could  sell  it  again, 
and  convey  a  good  title?  They  could  no  more  do  this  than  they  could 
sell  land  a  second  time  which  had  been  previously  patented.  When 
sold,  the  government,  until  the  patent  shall  issue,  holds  the  mere 
legal  title  for  the  land  in  trust  for  the  purchaser;  and  any  second 
purchaser  would  take  the  land  charged  with  the  trust." 

In  Witherspoon  v.  Duncan,  4  Wall.  210,  218,  a  similar  question 
arose  and  was  in  like  manner  answered.  Said  the  court:  "In  no 
just  sense  can  lands  be  said  to  be  public  lands  after  they  have  been 
entered  at  the  land  office  and  a  certificate  of  entry  obtained.  If 
public  lands  before  the  entry,  after  it  they  are  private  property. 
If  subject  to  sale,  the  government  has  no  power  to  revoke  the  entry 
and  withhold  the  patent.  A  second  sale,  if  the  first  was  authorized 
by  law,  confers  no  right  on  the  buyer,  and  is  a  void  act;  "  and  again  : 
"The  contract  of  purchase  is  complete  when  the  certificate  of  entry 
is  executed  and  delivered,  and  thereafter  the  land  ceases  to  be  a  part 
of  tlie  public  domain.  The  government  agrees  to  make  proper  con- 
veyance as  soon  as  it  can,  and  in  the  meantime  holds  the  naked 
legal  fee  in  trust  for  the  purchaser,  who  has  the  equitable  title." 
See,  also,  Eailway  Co.  v.  Prescott,  16  Wall.  603,  608;  Railway  Co. 
V.  McShane,  22  Wall.  444,  461. 

In  the  light  of  these  decisions,  it  will  be  necessar}-,  in  order  to 
determine  the  liability  of  the  property  held  by  the  plaintiff  to  taxa- 
tion in  1883,  to  consider  the  nature  and  extent  of  its  interest  in  the 
property  at  that  time  acquired  under  the  grant  of  Congress  of  May, 
1864,  and  by  its  subsequent  construction  of  the  road. 

Numerous  grants  of  land  were  made  by  Congress  between  1860  and 
1880  to  aid  in  the  construction  of  railroads;  some  directly  to  incor- 


SECT.  I.  b.]       WISCONSIN    CENTRAL   RAILROAD    V.    PRICE   CO.  181 

porated  companies,  others  to  different  States,  the  lands  to  be  by  them 
transferred  to  companies  by  whom   the  construction  of   the   roads 
might  be  undertaken.     The  different  acts  making  these  grants  were 
similar  in  their  general  provisions,  and  so  many  of  them  have  been, 
at  ditferent  times,  before  this  court  for  consideration  that  little  can 
be  said  of  their  purport  and  meaning,  the  title  they  transfer,  and  the 
conditions   upon  which   the   lands  could  be  used  and  disposed  of, 
which  has  not  already  and   repeatedly  been   said  in  its  decisions. 
Each  grant  gave 'a  specified  quantity  of  lands,  designated  by  sections 
along  the  route  of  the  proposed  road,   with  the  exception  of  such 
as  might,  when  the  line  of  the  road  should  be  definitely  fixed,  have 
been  disposed  of  or  reserved  by  the  government,  or  to  which  a  pre- 
emption or  homestead  right  might  then  have  attached.     For  these 
excepted   sections,   which    otherwise  would   have  been   taken  from 
those  designated  along  the  line  of  the  road,  other  lands  beyond  those 
sections  within  a  specified   distance  were   allowed   to   be  selected. 
The  title  conferred  was  a  present  one,  so  as  to  insure  the  donation 
for  the  construction  of  the  road  proposed  against  any  revocation  by 
Congress,  except  for  non-performance  of  the  work  within  the  period 
designated,  accompanied,  however,  with  such  restrictions  upon  the 
use  and  disposal  of  the  lands  as  to  prevent  their  diversion  from  the 
purposes  of  the  grant.     It  was  the  practice  of  the  Land  Department, 
as   shown  by  the   evidence  in  this    record,  up   to  the   decision   of 
Leavenworth,  Lawrence,  &  Galveston  Railroad  Co.  v.  United  States, 
in  April,  1876  (92  U.  S.  733),  to  allow  deficiencies  in  the  quantity  of 
land  intended  to  be  granted,  arising  from  sales  or  other  disposition 
made  before  the  date  of  the  grant,  as  well  as  those  made   subse- 
quently, and  those  arising  from   the  attachment  of  preemption  or 
homestead  rights,  to  be  supplied  from  lands  lying  beyond  the  orig- 
inal sections,  within  what  were  termed  the  indemnity  limits.     This 
practice  was  held  in  Winona  &  St.  Peter  Railroad  Co.  v.  Barney  to 
have  been  correct.     113  U.   S.  618,  625.     As  the  court  there  said: 
"  The  policy  of  the  government  was  to  keep  the  public  lands  open 
at  all  times  to  sale  and  preemption,  and  thus  encourage  the  settle- 
ment of  the  country,  and,  at  the  same  time,  to  advance  such  settle- 
ment by  liberal  donations  to  aid  in  the    construction  of   railways. 
The  acts  of  Congress,  in  effect,  said:  '  We  give  to  the  State  certain 
lands  to  aid  in  the  construction  of  railways  lying  along  their  respec- 
tive routes,  provided  they  are  not  already  disposed  of,  or  the  rights 
of  settlers  under  the    laws  of  the  United  States  have  not  already 
attached  to  them,  or  they  may  not  be  disposed  of  or  such  rights  may 
not  have  attached  when  the  routes  are  finally  determined.     If  at 
that  time  it  be  found  that  of  the  lands  designated  any  have  been 
disposed  of,  or  rights  of  settlers  have  attached  to  them,  other  equiv- 
alent lands  may  be  selected  in  their  place,  within  certain  prescribed 
limits.'     The  encouragement  to  settlement  by  aid  for  the  construc- 
tion of  railways  was  not  intended  to  interfere  with  the  policy  of 


232  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

encouraging  such  settlement  by  sales  of  the  land,  or  the  grant  of 
preeuiptlon''rights."  The  court  accordingly  held  that  the  indemnity 
clause  covered  losses  from  the  grant  by  reason  of  sales  and  the 
attachment  of  preemption  rights  previous  to  the  date  of  the  act,  as 
well  as  by  reason  of  sales  and  the  attachment  of  preemption  rights 
between  that  date  and  the  final  determination  of  the  route  of  the 

road. 

After  the  decision  of  the  court  in  the  Leavenworth  case  the  Land 
Department  changed  its  practice  and  refused  to  allow  the  deficien- 
cies arising  from  sales  or  other  disposition  made,  or  from  the 
attachment  of  preemption  or  homestead  rights  before  the  date  of  the 
act,  to  be  made  up  from  selections  within  the  indemnity  limits. 
But  that  decision  did  not  warrant  the  change.  The  question  in  that 
case  was  not,  for  what  deficiencies  indemnity  could  be  had,  but 
what  lands  could  be  taken  for  deficiencies  which  existed.  If  what 
was  then  said  indicated  that  deficiencies  which  could  be  supplied 
were  limited,  to  such  as  might  arise  after  the  passage  of  the  act,  it 
was  a  mere  dictum  not  essential  to  the  decision,  and  therefore  not 
authoritative  and  binding.  The  refusal  of  the  Land  Department, 
therefore,  to  allow  the  deficiencies  arising  in  the  sections  within  the 
place  limits  in  this  case  to  be  supplied  by  selections  from  the  in- 
demnity lands,  and  to  issue  patents  of  the  United  States  for  them, 
was  erroneous. 

The  question  now  arises  as  to  how  far  this  refusal  affected  the 
legal  or  equitable  title  of  the  company  to  the  lands  taxed  in  1883, 
for  which   it   only   obtained   a   patent   in  1884.     The  lands  taxed 
amounted   to   eleven   parcels  of   forty  acres  each  lying  within  the 
original  sections  named  in  the  grant,  that  is,  within  the  ten  miles 
limit  from  the  line  of  the  road,  and  the  remainder  were  within  the 
indemnity  limits.     Neither  were  allowed,  because,  by  excluding  the 
deficiencies  arising  before  the  date  of  the  grant  from  indemnity,  the 
whole  amount  of  the  lands  granted  had  already  been  patented.     So 
far  as  the  eleven  parcels  of  forty  acres  each  are  concerned,  the  right 
of  the  plaintiff  to  them  and  to  a  patent  for  them  had  as  early  as  1877 
become  complete  under  the  terms  of  the  granting  act.     The  line  of 
railroad  had  been  definitely  fixed  on  the  7th  of  October,  1869;  and 
the  three  twenty-mile  sections,  numbers  five,  six,  and  seven,  were 
all  completed  in  June,  1877,  and  supplied  with  the  buildings  and 
appurtenances  specified  in  the  act  to  entitle  the  company  to  patents 
for  them  from  the  United  States.     The  title  conferred  by  the  grant 
was  necessarily  an   imperfect  one,   because,   until  the  lands  were 
identified  by  the  definite  location  of  the  road,  it  could  not  be  known 
what  specific  lands  would  be  embraced  in  the  sections  named.     The 
grant  was,  therefore,  until  such  location,  a  float.      But  when  the 
route  of  the  road  was  definitely  fixed,  the  sections  granted  became 
susceptible  of  identification,  and  the  title  attached  to  them  and  took 
efifect  as  of  the  date  of  the  grant,  so  as  to  cut  off  all  intervening 


SECT.  T.  b.]        WISCONSIN   CENTRAL   RAILROAD    V.    PRICE    CO.  183 

f'laims.  Sehnlenberg  v.  Harriman,  21  Wall. 44,  CO;  Leavemvorth.  &c. 
Railroad  Co.  v.  United  States,  92  U.  S.  733,  741 ;  Missouri,  Kan- 
sas, &  Texas  Railroad  Co.  v.  Kansas  Pacific  Railway  Co.,  97  U.  S. 
491,  496;  Railway  Co.  v.  Baldwin,  103  U.  S.  426,  429.  The  road 
having  been  built  as  early  as  June,  1877,  and  supplied,  as  re- 
quired, with  the  appurtenances  specified,  the  company  was  entitled 
to  have  the  restrictions  upon  the  use  of  the  land  released.  It  had 
then,  to  the  eleven  forty-acre  parcels  which  were  capable  of  iden- 
tification, an  indefeasible  right  or  title;  it  matters  not  which  term 
be  used.  The  subsequent  issue  of  the  patents  by  the  United  States 
was  not  essential  to  the  right  of  the  company  to  those  parcels, 
although  in  many  respects  they  would  have  been  of  great  service 
to  it.  They  would  have  served  to  identify  the  lands  as  coterminous 
with  the  road  completed;  they  would  have  been  evidence  that  the 
grantee  had  complied  with  the  conditions  of  the  grant,  and  to  that 
extent  that  the  grant  was  relieved  of  possibility  of  forfeiture  for 
breach  of  them;  they  would  have  obviated  the  necessity  of  any 
other  evidence  of  the  grantee's  right  to  the  lands;  and  they  would 
have  been  evidence  that  the  lands  were  subject  to  the  disposal  of 
the  railroad  company  with  the  consent  of  the  government.  They 
would  have  been  in  these  respects  deeds  of  further  assurance  of  the 
patentee's  title,  and,  therefore,  a  source  of  quiet  and  peace  to  it  in 
its  possessions. 

There  are  many  instances  in  the  reports  where  such  effect  as  is 
here  stated  has  been  given  to  patents  authorized  or  directed  to 
be  issued  to  parties,  notwithstanding  they  had  previously  received 
a  legislative  grant  of  the  premises,  or  their  title  had  been  already 
confirmed.  In  Langdeau  v.  Hanes,  21  Wall.  521,  529,  we  have  one 
of  that  kind.  There,  this  court  said:  "In  the  legislation  of  Con- 
gress a  patent  has  a  double  operation.  It  is  a  conveyance  by  the 
government,  when  the  government  has  any  interest  to  convey;  but 
where  it  is  issued  upon  the  confirmation  of  a  claim  of  a  previously 
existing  title,  it  is  documentary  evidence,  having  the  dignity  of 
a  record,  of  the  existence  of  that  title,  or  of  such  equities  respect- 
ing the  claim  as  justify  its  recognition  and  confirmation.  The  in- 
strument is  not  the  less  efficacious  as  evidence  of  previously  existing 
rights  because  it  also  embodies  words  of  release  or  transfer  from  the 
government."  We  are  of  opinion,  therefore,  that  these  eleven  forty- 
acre  parcels  were  in  1883  subject  to  taxation  by  the  State  of  Wiscon- 
sin. The  lands  had  become  the  property  of  the  railroad  company, 
and  there  was  nothing  to  hinder  their  use  and  enjoyment.  For 
that  purpose  it  is  immaterial  whether  it  be  held  that  the  company 
then  had  a  legal  and  indefeasible  title  to  the  lands,  or  merely  an 
equitable  title  to  them  to  be  subsequently  perfected  by  patents  from 
the  government. 

But  as  to  the  remainder  of  the  lands  taxed,  which  fell  within  the 
indemnity  limits,  the  case  is  different.     For  such  lands  no  title  could 


134  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  17. 

pass  to  the  company  not  only  until  the  selections  were   made   by 
the  agents  of  the  State  appointed  by  the  governor,  but  until  such 
selections   were   approved   by   the  Secretary  of  the  Interior.     The 
agent  of  the  State  made  the  selections,  and  they  had  been  properly 
authenticated  and  forwarded  to  the  Secretary  of  the  Interior.     But 
that  officer  never  approved  of  them.     Nor  can  such  approval  be  in- 
ferred from  his  not  formally  rejecting  them.     He  refused,  as  already 
stated,  to  issue  to  the  company  any  patents  for  any  more  lands,  in- 
sisting that  it  had  already  received  over  40,000  acres  too  much,  and 
he  directed  the  Commissioner  of  the  General  Land  Office  to  require 
the  company  to  restore  this  excess  to  the  government.     The  approval 
of  the  Secretary  was  essential  to  the  efficacy  of  the  selections,  and 
to  give  to  the  company  any  title  to  the  lands  selected.     His  action 
in  that  matter  was  not  ministerial  but  judicial.     He  was  required 
to  determine,  in  the  first  place,  whether  there  were  any  deficiencies 
in  the  land  granted  to  the  company  which  were  to  be  supplied  from 
indemnity  lands;  and,  in  the  second  place,  whether  the  particular 
indemnity  lands  selected  could  be  properly  taken  for  those  deficien- 
cies.    In  order  to  reach  a  proper  conclusion  on  these  two  questions 
he  had  also  to  inquire  and  determine  whether  any  lands  in  the  place 
limits   had   been   previously   disposed   of    by   the   government,    or 
whether  any  preemption  or  homestead  rights  had  attached  before  the 
line  of  the  road  was  definitely  fixed.     There  could  be  no  indemnity 
unless  a  loss  was  established.     And  in  determining  whether  a  par- 
ticular selection  could  be  taken  as  indemnity  for  the  losses  sustained, 
he  was   obliged  to  inquire    into  the  condition  of   those  indemnity 
lauds,  and  determine  whether  or  not  any  portion  of  them  had  been 
appropriated  for  any  other   purpose,   and  if   so,  what  portion  Iiad 
■  been   thus   appropriated,  and  what   portion    still   remained.     This 
action  of  the  Secretary  was  required,  not  merely  as  supervisory  of 
the   action  of  the  agent  of  the  State,  but  for  the  protection  of  the 
United  States  against   an  improper   appropriation  of  their   lands. 
Until  the  selections  were  approved  there  were  no  selections  in  fact, 
only  preliminary  proceedings  taken  for  that  purpose;  and  the  indem- 
nity lands  remained  unaffected  in  their  title.     Until  then,  the  lands 
which  might  be  taken  as  indemnity  were  incapable  of  identification; 
the  proposed  selections  remained  the  property  of  the  United  States. 
The  government  was,  indeed,  under  a  promise  to  give  the  company 
indemnity  lands  in  lieu  of  what  might  be  lost  by  the  causes  men- 
tioned.    But  such  promise  passed  no  title,  and,  until  it  was  executed, 
created  no  legal  interest  which   could  be  enforced    in   the   courts. 
The  doctrine,  that  until  selection  made  no  title  vests  in  any  indem- 
nity lands,  has  been  recognized  in  several  decisions  of  this  court. 
Thus  in  Ryan  v.  Railroad  Co.,  99   U.  S.  382,  386,  in  considering 
a  grant  of  land  by  Congress,  in  aid  of  the  construction  of  a  railroad, 
similar  in  its  general  features  to  the  one  in  this  case,  the  court  said : 
"  Under  this  statute,  when  the  road  was  located  and  the  maps  were 


SECT.  I.  1).]       WISCONSIN    CENTRAL   RAILROAD    V.    PRICE    CO.  185 

made,  the  right  of  the  company  to  the  odd  sections  first  named  be- 
came 12)80  facto  fixed  and  absolute.  With  respect  to  the  '  lieu  lands,' 
as  they  are  called,  the  right  was  only  a  float,  and  attached  to  no 
specific  tracts  until  the  selection  was  actually  made  in  the  man- 
ner prescribed."  And  again,  speaking  of  a  deficiency  in  the  land 
granted,  it  said:  "It  was  within  the  secondary  or  indemnity  terri- 
tory where  that  deficiency  was  to  be  supplied.  The  railroad  com- 
pany had  not  and  could  not  have  any  claim  to  it  until  specially 
selected,  as  it  was,  for  that  purpose."  The  selection  had  been 
approved  by  the  Secretary. 

In  St.  Paul,  &c.  Railroad  v.  Winona,  &c.  Railroad,  112  U.  S.  720, 
731,  the  court,  speaking  of  a  previous  decision,  said:  "Thq  reason 
of  this  is  that,  as  no  vested  right  can  attach  to  the  lands  in  place  — 
the  odd-numbered  sections  within  six  miles  of  each  side  of  the  road 
—  until  these  sections  are  ascertained  and  identified  by  a  legal 
location  of  the  line  of  the  road,  so  in  regard  to  the  lands  to  be 
selected  within  a  still  larger  limit,  their  identification  cannot  be 
known  until  the  selection  is  made.  It  may  be  a  long  time  after  the 
line  of  the  road  is  located  before  it  is  ascertained  how  many  sec- 
-tions,  or  parts  of  sections,  within  the  primary  limits  have  been  lost 
by  sale  or  preemption.  It  may  be  still  longer  before  a  selection  is 
made  to  supply  this  loss." 

In  Sioux  City,  &c.  Railroad  v.  Chicago,  &c.  Railway,  117  U.S.  406, 
408,  where  the  railroad  grant  as  to  indemnity  lands  was  substantially 
similar  to  the  one  in  this  case,  and  one  of  the  questions  was  as  to  the 
title  to  the  indemnity  lands,  the  court  said:  "No  title  to  indemnity 
lands  was  vested  until  a  selection  was  made  by  which  they  were 
pointed  out  and  ascertained,  and  the  selection  made  approved  by 
the  Secretary  of  the  Interior." 

In  Barney  v.  Winona,  &c.  Railroad,  117  U.  S.  228,  232,  the  court 
said:  "In  the  construction  of  land-grant  acts,  in  aid  of  railroads, 
there  is  a  well-established  distinction  observed  between  '  granted 
lands  '  and  '  indemnity  lands.'  The  former  are  those  falling  within 
the  limits  specially  designated,  and  the  title  to  which  attaches  when 
the  lands  are  located  by  an  approved  and  accepted  survey  of  the  line 
of  the  road  filed  in  the  Land  Department,  as  of  the  date  of  the  act 
of  Congress.  The  latter  are  those  lands  selected  in  lieu  of  parcels 
lost  by  previous  disposition  or  reservation  for  other  purposes,  and 
the  title  to  which  accrues  only  from  the  time  of  their  selection." 
The  same  view  has  been  held  by  different  Attorneys  General  of 
the  United  States,  in  their  official  communications  to  heads  of  the 
departments,  where  selections  of  the  public  lands  have  been  granted, 
subject  to  the  approval  of  the  Secretary  of  the  Interior,  Cape  ^len- 
docino  Lighthouse  Site,  14  Opinions  Att'ys  Gen.  50,  Portage  Land 
Grant,  lb.  645,  and  such  has  been  the  consistent  practice  of  the 
Land  Department.  The  uniform  language  is,  that  no  title  to  in- 
demnity lands  becomes  vested  in  any  company  or  in  the  State  until 


186  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IT. 

the  selections  are  made;  and  they  are  not  considered  as  made  until 
they  have  been  approved,  as  provided  by  statute,  by  the  Secretary  of 
the  Interior. 

It  follows  from  these  views  that  the  indemnity  lands  described  in 
the  complaint  were  no't  subject  to  taxation  as  the  property  of  the 
railroad  company  in  1883.  The  judgment  of  the  Supreme  Court  of 
Wisconsin  must,  therefore,  be 

Reversed,  and  the  cause  remanded  tvith  directions  to  enter  a 
decree  perj)etualhj  enjoining  the  collection  of  the  taxes  levied 
in  the  year  1883  upon  the  indemnity  lands,  and  dismissing  the 
comjdaint  as  to  the  eleven  parcels  of  forty  acres  each  ;  and  it  is 
so  ordered. 


SAYLES  V.  DAVIS. 

22  Wisconsin,  225.     1867. 

Appeal  from  the  Circuit  Court  for  Eock  County. 

Action  by  the  holder  of  a  tax  deed  of  land,  to  bar  the  original 
owner,  under  sees.  35  et  seq.,  chap.  22,  Laws  of  1859.     The  deed  was 
executed  April  11,  1863,  upon  a  sale  made  in  1860  for  the  taxes  of 
1859.     A  judgment  for  plaintiff  having  been  reversed  by  this  court 
(20  Wis.  302),  on  the  ground  that  the  record  did  not  show  proof  of 
service  of  summons  duly  made,  the  plaintiff,  after  the  cause  was  re- 
mitted, filed  due  proof  of  service  and  took  judgment  without  notice 
to  the  defendant.     Defendant  then  obtained  an  order  on  plaintiff  to 
show  cause  why  the  judgment  should  not  be  vacated,  and  leave  given 
to  answer.     It  appeared  from  the  papers  used  at  the  hearing,  that 
the  summons  and  complaint  were  duly  served  on  defendant  person- 
ally, May  3d,  1864 ;  that  judgment  was  entered  September  16,  1864, 
defendant  not  having  answered  or  appeared ;    and  that  on  the  18th 
of  December,  1865,  plaintiff  was  notified  of  the  retainer  of  counsel 
by  defendant  for  the  purpose  of  prosecuting  an  appeal  from  the 
judgment.  —  The  proposed  answer  alleges  that  plaintiff's  tax  deed 
was  defective  when  made  and  recorded,  for  want  of  a  revenue  stamp; 
and  that  before  any  stamp  was  affixed,  defendant  had  deposited  with 
the  proper  officer  the  sum  necessary  to  redeem  the  land;   that  in 
November,  1863,  a  deed  of  the  premises  had  been  executed  to  de- 
fendant by  the  county  treasurer,  upon  a  sale  for  the  taxes  of  1858 ; 
and  that  the  tax  sale  under  which  plaintiff  claims  was  wholly  void, 
"  for  the  reason  that  the  requirements  of  law,  in  the  assessing  and 
collecting  of  the  taxes  of  the  year  1859,  were  disregarded   in  many 
essential  particulars,  and  especially  by  reason  of  the  neglect  of  the 
county  treasurer  in  not  properly  giving  notices  of  the  proposed  sale 
of  said  land  for  delinquent  tax,  and  in  omitting  to  give  notice  in  one 


SECT.  T.  b.]  SAYLES    V.    DAYI3.  187 

public  newspaper  of  all  the  lands  in  Rock  county  upon  which  taxes 
were  delinquent  for  the  year  1859 ;  and  also  by  reason  of  the  neglect 
of  said  clerk  in  failing  to  advertise,  as  required  by  law,  the  time  when 
the  period  allowed  by  law  to  redeem  from  the  tax  sales  for  the  delin- 
quent taxes  of  1859  would  expire ;  and  the  said  proceedings  in  the 
attempted  collection  of  said  taxes  for  1859,  and  in  the  execution  of 
the  said  instrument  to  said  Sayles,  were  in  other  respects  informal 
and  insufficient  to  support  the  title  in  said  lands  claimed  by  said 
Sayles,"  etc.     The  motion  papers  included  an  affidavit  of  merits. 

The  order  to  show  cause  was  discharged,  with  costs ;  and  from  this 
decision  the  defendant  appealed. 

Dixon,  C.  J. 

As  to  the  omission  to  affix  an  internal  revenue  stamp  to  the  tax 
deed  under  which  the  plaintiff  claims,  we  think  such  stamp  was  un- 
necessary. The  deed  was  executed  before  the  passage  and  publication 
of  the  act  of  our  State  Legislature  —  Laws  of  1863,  chap.  159.  We 
are  of  opinion  that  Congress  possesses  no  constitutional  power,  with- 
out the  assent  of  the  States,  to  tax  the  means  or  instruments  devised 
by  the  States  for  the  purpose  of  collecting  their  own  revenues ;  and 
for  our  reasons  in  the  support  of  this  conclusion,  we  refer  to  the 
opinion  of  this  court  in  the  case  of  Jones  v.  The  Estate  of  Keep, 
19  Wis.  389.  If  the  writs  and  judicial  proceedings  in  the  courts  of 
the  State  cannot  be  taxed  by  Congress,  it  requires  no  argument  to 
show  that  the  proceedings  of  the  State  to  collect  its  own  revenue  can- 
not be  so  taxed.  "The  power  to  tax  involves  the  power  to  destroy  ; 
and  the  power  to  destroy  may  defeat  and  render  useless  the  power 
to  create."  The  functions  of  government  exercised  in  the  levying 
and  collection  of  its  taxes  are  more  vitally  important  to  its  existence 
and  independence  than  any  other.  Without  the  free  and  unobstructed 
exercise  of  such  power  no  State  can  exist,  and  all  sovereignty  and 
independence  are  at  an  end.  We  cannot  but  regard  this  as  an 
obvious  departure  from  the  spirit  and  requirements  of  our  Federal 
Costitution,  and  contrary  to  the  intention  of  the  convention  which 
framed,  and  of  the  States  which  ratified  it. 

The  tax  deed  of  the  defendant,  executed  upon  a  sale  made  prior  to 
that  to  the  plaintiff,  conveys  no  title  as  against  the  plaintiff.  A  valid 
sale  and  conveyance  under  a  junior  assessment  cuts  off  all  former 
titles  or  liens.  Jarvis  v.  Peck,  19  Wis.  74.  The  words  "subject, 
however,  to  all  unpaid  taxes  and  charges,"  in  sec.  25,  chap.  22,  Laws 
of  1859,  have  reference  only  to  such  unpaid  taxes  and  charges  as  may 
have  accrued  subsequently  to  the  sale  on  which  the  deed  is  issued. 

The  other  grounds  of  irregularity  relied  upon  to  impeach  the  deed 
to  the  plaintiff  are  not  specifically  stated  in  the  answer,  as  required 
by  law.  Laws  of  1859,  chap.  22,  sec.  38 ;  Wakeley  v.  Nicholas,  16 
Wis.  588.  The  "many  essential  particulars"  in  which  "the  re- 
quirements of  law  in  the  assessing,  levying,  and  collecting  of  the 
taxes  of  the  year  1859,  were  disregarded,"  are  not  pointed  out  at  all 


188  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

by  the  answer ;  nor  is  it  stated  how  or  in  what  manner  the  county 
treasurer  was  negligent  "  in  not  properly  giving  notice  of  the  pro- 
posed sale  of  the  said  land  for  delinquent  tax,"  The  averment  of 
the  treasurer's  neglect  "  in  omitting  to  give  notice  in  one  public  news- 
paper of  all  the  lands  in  Rock  County  upon  which  taxes  were  delin- 
quent for  the  year  1859,"'  is  a  negative  pregnant,  and  tenders  an  imma- 
terial issue.  It  is  not  material  to  the  validity  of  the  plaintiff's  deed, 
whether  all  the  lands  in  Rock  County  were  advertised  or  not.  It  is 
enough  that  the  proper  notice  was  published  as  to  the  lands  which 
were  conveyed  to  him.  And  the  averment  that  the  deed  is  void  by 
reason  of  the  neglect  of  the  clerk  "in  failing  to  advertise,  as  required 
by  law,  the  time  when  the  period  allowed  by  law  to  redeem  from  the 
tax  sales  for  the  delinquent  taxes  of  1859,  would  expire,"  is  equally 
faulty.  The  question  is,  in  what  particular  or  particulars  did  the 
clerk  fail  "to  advertise  as  required  by  law;"  and  this  must  be  an- 
swered by  the  pleading,  and  the  specific  objections  pointed  out. 

As  the  answer  shows  no  defence  to  the  action  of  the  plaintiff,  it 
follows  that  the  Circuit  Court  was  right  in  rejecting  the  defendant's 
application  to  be  let  in  under  section  38,  chap.  125,  R.  S.  To  author- 
ize the  granting  of  relief  under  that  section,  upon  answer,  a  valid 
and  meritorious  defence  must  be  shown. 

Order  affirined} 

1  In  Moore  v.  Quirk,  105  Mass.  49  (1870),  it  was  contended  that  the  record  of 
a  mortgage  was  invalid  for  want  of  a  revenue  stamp  under  the  provisions  of  the 
Internal  Revenue  Act  of  1866,  ch.  184,  sec.  9.  which  provided  that  no  instrument 
should  be  rec<jrded  until  stamped  and  that  such  instrument  not  stamped  should  be 
void.  The  court  (per  Gray,  J.)  disposed  of  the  objections  to  the  mortgage  as 
follows  :  — 

"  1 .  The  want  of  the  stamp  required  by  the  Internal  Revenue  Act  of  the  United 
States  did  ndt  affect  the  validity  of  the  mortgage,  in  the  absence  of  evidence  tending 
to  show  that  the  stamp  had  been  omitted  with  intent  to  defraud  the  revenue.  U.  S. 
St.  1866,  c  184,  sec.  9;  14  U.  S.  Sts.  at  Large,  142-144.  Green  v.  Hohvay,  101  Mass. 
243.  Campbell  v.  Wilcox,  10  Wall.  421.  The  plaintiff  does  not  appear  to  have 
a.'^ked  that  any  question  of  such  fraudulent  intent  should  be  submitted  to  the  jury. 

"2.  The  mortgage  was  recorded  as  required  by  the  Statutes  of  the  Commonwealth. 
Gen.  Sts.  c.  151,  sees.  1,  3.  The  clause  of  the  Internal  Eevenue  Act,  which  provides 
that  instruments  not  stamped  as  therein  required  shall  not  be  recorded,  cannot  be  con- 
strued as  prohibiting  the  performance  by  the  officers  of  the  Commonwealth  of  the 
duties  imposed  upon  them  by  its  statutes,  but  must  be  limited  in  interpretation  and 
effect  to  records  required  or  authorized  by  Acts  of  Congress,  for  the  same  reasons  upon 
which  the  prohibition  in  tlie  •  same  clause  against  giving  unstamped  instruments  in 
evidence  in  any  court  has  been  decided  to  be  applicable  to  the  Federal  Courts  only, 
and  not  to  extend  to  the  State  Courts.  Carpenter  v.  Snelling,  97  Mass.  458 ; 
Green  v.  Hohvay,  101  Mass.  243;  People  v.  Gates,  43  N.  Y.  40;  Clemens  v.  Conrad, 
19  Mich.  170." 

In  Warren  v.  Paul,  22  Ind.  276  (1864),  the  question  was  as  to  the  validity  of  the 
provision  of  tlie  Internal  Revenue  Act  of  1864  requiring  writs  of  State  Courts  to  be 
stamped  aud  the  court  (per  Pkrkins,  J.)  used  the  following  language  :  — 

"  State  governments,  as  we  have  seen,  are  to  exist  with  judicial  tribunals  of  their 
own.  This  is  manifest  all  the  way  through  the  Constitution  This  being  so,  those 
tribunals  must  not  be  subject  to  be  encroached  upon  or  controlled  by  Congress. 
This  would  be  incompatible  with  their  free  existence.     It  was  held  when  Congress 


SECT.  I.  C]  LOAN    ASSOCIATION    V.   TOPEKA.  ^  /  189 

c.    For  Public  Purpose.       ^>^      C* 

LOAN  ASS0GIATIQN   v.   TOPEKA. 
20  Wallace,  655.     1874. 

[Plaintiff  brought  action  in  the  United  States  Circuit  Court  for 
Kansas  against  the  City  of  Topeka  on  coupons  for  interest  attached 
to  bonds  of  the  city  issued  in  pursuance  of  the  provisions  of  a  State 
statute.  Judgment  being  given  for  defendant  on  demurrer,  plaintiff 
took  a  writ  of  error.] 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

We  find  ample  reason  to  sustain  the  demurrer  on  the  second 
ground  on  which  it  is  argued  by  counsel  and  sustained  by  the  Circuit 
Court. 

That  proposition  is  that  the  act  authorizes  the  towns  and  other 
municipalities  to  which  it  applies,  by  issuing  bonds  or  loaning  their 
credit,  to  take  the  property  of  the  citizen  under  the  guise  of  taxation 
to  pay  these  bonds,  and  use  it  in  aid  of  the  enterprises  of  others 
which  are  not  of  a  public  character,  thus  perverting  the  right  of 
taxation,  which  can  only  be  exercised  for  a  public  use,  to  the  aid 
of  individual  interests  and  personal  purposes  of  profit  and  gain. 

The  proposition  as  thus  broadly  stated  is  not  new,  nor  is  the 
question  which  it  raises  difficult  of  solution. 

If  these  municipal  corporations,  which  are  in  fact  subdivisions 
of  the  State,  and  which  for  many  reasons  are  vested  with  quasi 
legislative  powers,  have  a  fund  or  other  property  out  of  which  they 
can  pay  the  debts  which  they  contract,  without  resort  to  taxation,  it 
may  be  within  the  power  of  the  Legislature  of  the  State  to  autliorize 
them  to  use  it  in  aid  of  projects  strictly  private  or  personal,  but  wliich 
would  in  a  secondary  manner  contribute  to  the  public  good  ;  or  where 
there  is  property  or  money  vested  in  a  corporation  of  the  kind  for  a 
particular  use,  as  public  worship  or  charity,  the  Legislature  may  pass 
laws  authorizing  them  to  make  contracts  in  reference  to  this  property, 
and  incur  debts  payable  from  that  source. 

But  such  instances  are  few  and  exceptional,  and  the  proposition 
is  a  very  broad  one,  that  debts  contracted  by  municipal  corporations 
must  be  paid,  if  paid  at  all,  out  of  taxes  which  they  may  lawfully 

created  a  United  States  bank,  and  is  now  decided  when  the  United  States  has  j^iven 
bonds  for  borrowed  money,  that  as  Congress  had  rights  to  create  sncli  fiscal  agents 
and  issne  snch  bonds,  it  would  be  incompatible  with  the  full  and  free  enjoyment  of 
those  rights  to  allow  that  the  States  might  tax  the  bank  or  bonds ;  because,  if  the 
right  to  so  tax  them  was  conceded,  the  States  might  exercise  the  right  to  the  destruc- 
tiou  of  congressional  power.  The  argument  applies  with  full  force  to  the  exemptioa 
of  State  governments  from  federal  legislative  interference." 


190  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

levy,  and  that  all  contracts  creating  debts  to  be  paid  in  future,  no^ 
limited  to  payment  from  some  other  source,  imply  an  obligation  to 
pay  by  taxation. 

It  follows  that  iu  this  class  of  cases  the  right  to  contract  must  be 
limited  by  the  right  to  tax,  and  if  in  the  given  case  no  tax^c^n 
lawfully  be  levied  to  pay  the  debt,  the  contract  itself  is  void  for 
..■yvant  of  authority  to  make  it. 

If  this  were  not  so,  these  corporations  could  make  valid  promises, 
vphich  they  have  no  means  of  fulfilling,  and  on  which  even  the 
Legislature  that  created  them  can  confer  no  such  power.  The  validity 
of  a  contract  which  can  only  be  fulfilled  by  a  resort  to  taxation, 
depends  on  the  power  to  levy  the  tax  for  that  purpose.  Sharpless  v. 
Mayor  of  Philadelphia,  21  Penu.  St.  147,  167;  Hanson  v.  Vernon,  27 
Iowa,  28  ;  Allen  v.  Inhabitants  of  Jay,  60  ]\Iaine,  127 ;  Lowell  v.  Bos- 
ton, 111  Mass.  454 ;  Whiting  v.  Fond  du  Lac,  25  Wis.  188. 

It  is,  therefore,  to  be  inferred  that  when  the  Legislature  of  tlie 

State  authorizes  a  county  or  city  to  contract  a  debt   by  boud,   it 

i  intends  to  authorize  it  to  levy  such  taxes  as  are  necessary  to  pay  the 

\debt,  unless  there  is  in  the  act  itself,  or  in  some  general  statute,  a 

''limitation  upon  the  power  of  taxation  which  repels  such  an  inference. 

-■    "With  these   remarks  and  with  the    reference    to    the  authorities 

which   support   them,    we   assume   that   unless   the    Legislature    of 

;  Kansas  had  the  right  to  authorize  the  counties  and  towns  in  that 

/  State  to  Isvy  taxes  to  be  used  in  aid.  of  manjifa^turi^igenterprises, 

j  conducted  by  individuals,   or  private  corporations,   for  purposea^f 

gain,  tlie  law  is   void,  and  the  bonds  issued  under  i€  are'~also  void.^ 

We  proceed   to  the  inquiry  whether  sucli  a  "power  exists"^   the 

'  Legislature  of  the   State  of  Kansas. 

We  have  already  said  the  question  is  not  new.     The  subject  of  the 

aid  voted  to  railroads  by  counties  and  towns  has  been  brought  to  the 

attention  of  the  courts  of  almost  every  State  in  the  Union.     It  has 

been  thoroughly  discussed  and  is  still   the   subject  of  discussion  in 

those  courts.    It  is  quite  true  that  a  decided  preponderance  of  authority 

As  to  be  found  in  favor  of  the  proposition  that  the  Legislatures  of  the 

/  States,  unless  restricted  by  some  special  provisions  of  their  constitu- 

\(  tions,  may  confer  upon   these  municipal   bodies    the  right   to  take 

stock  in  corporations  created  to  build  railroads,  and   to  lend  their 

credit  to  such  corporations.     Also  to  levy  the  necessary  taxes  on  the 

inhabitants,  and  on  property  within  their  limits   subject  to  general 

taxation,  to  enable  them  to  pay  the  debts  thus  incurred.     But  very 

few  of  these  courts  have  decided  this  without  a  division  among  the 

judges  of   wliicli  they  were  composed,   while  others   have   decided 

against  the  existence  of  the  power  altogether.     The  State  v.  Wapello 

Co.,  13  Iowa,  388;  Hanson  v.   Yernon,  27  Iowa,  28;  Sharpless   v. 

Mayor,  &c.,  21  Penn.  St.  147 ;  Whiting  v.  Fond  du  Lac,  25  Wis.  188. 

In  all  these  cases,  however,  the  decision  has   turned    upon    the 

question  whether  the  taxation  by  which  this  aid  was  afforded  to  the 


/■ 


^^tr^^-^'-^^r 


SECT.  I.  C]  LOAN    ASSOCIATION   V.   TOPEKA.  191 

building  of  railroads  was  for  a  public  purpose.  Those  who  came 
to  the  conclusion  that  it  was,  held  the  laws  for  that  purpose  valid. 
Those  who  could  not  reach  that  conclusion  held  them  void.  In  all 
the  controversy  this  has  been  the  turning-point  of  the  judgments  of 
the  courts.  And  it  is  safe  to  say  that  no  court  has  held  debts 
created  in  aid  of  railroad  companies,  by  counties  or  towns,  valid 
on  any  other  ground  than  that  the  purpose  for  which  the  taxes 
were  levied  was  a  public  use,  a  purpose  or  object  which  it  was  the 
right  and  the  duty  of  State  governments  to  assist  by  money  raised 
from  the  people  by  taxation.  The  argument  in  opposition  to  this  power 
has  been,  that  railroads  built  by  corporations  organized  mainly  for 
purposes  of  gain  —  the  roads  which  they  built  being  under  their 
control,  and  not  that  of  the  State —  were  private  and  not  public 
roads,  and  the  tax  assessed  on  the  people  went  to  swell  the  profits 
of  individuals  and  not  to  the  good  of  the  State,  or  the  benefit  of  the 
public,  except  in  a  remote  and  collateral  way.  On  the  other  hand 
it  was  said  that  roads,  canals,  bridges,  navigable  streams,  and  all 
other  highways  had  in  all  times  been  matter  of  public  concern. 
That  such  channels  of  travel  and  of  carrying  on  business  had  always 
been  established,  improved,  regulated  by  the  State,  and  that  the 
railroad  had  not  lost  this  character  because  constructed  by  individual 
enterprise,  aggregated  into  a  corporation. 

We  are  not  prepared  to  say  that  the  latter  view  of  it  is  not  the 
true  one,  especially  as  there  are  other  characteristics  of  a  public 
nature  conferred  on  these  corporations,  such  as  the  power  to  obtain 
right  of  way,  their  subjection  to  the  laws  which  govern  common 
carriers,  and  the  like,  which  seem  to  justify  the  proposition.  Of  the 
disastrous  consequences  which  have  followed  its  recognition  by  the 
courts  and  which  were  predicted  when  it  was  first  established  there 
can  be  no  doubt. 

We  have  referred  to  this  history  of  the  contest  over  aid  to  rail- 
roads by  taxation,  to  show  that  the  strongest  advocates  for  the 
validity  of  these  laws  never  placed  it  on  the  ground  of  the  unlimited 
power  in  the  State  Legislature  to  tax  the  people,  but  conceded  that 
where  the  purpose  for  which  the  tax  was  to  be  issued  could  no 
.longer  be  justly  claimed  to  have  this  public  character,  but  was 
purely  in  aid  of  private  or  personal  objects,  the  law  authorizing  it 
was  beyond  the  legislative  power,  and  was  an  unauthorized  invasion 
of  private  right.  Olcott  v.  Supervisors,  16  Wall.  689;  People  v. 
Salem,  20  Mich.  452;  Jenkins  v.  Andover,  103  Mass.  94;  Dillon  on 
Municipal  Corporations,  §  587 ;  2  Redfield's  Laws  of  Railways,  398, 
rule  2. 

It  must  be  conceded  that  there  are  such  rights  in  every  free 
government  beyond  the  control  of  the  State.  A  government  which 
recognized  no  such  rights,  which  held  the  lives,  the  liberty,  and  the 
property  of  its  citizens  subject  at  all  times  to  the  absolute  disposition 
and  unlimited   control   of  even  the  most  democratic  depository  of 


X92  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  lY. 

power,  is  after  all  but  a  despotism.  It  is  true  it  is  a  despotism 
of  the  many,  of  the  majority,  if  you  choose  to  call  it  so,  but 'it  is  none 
the  less  a  despotism.  It  may  well  be  doubted  if  a  man  is  to  hold 
all  that  he  is  accustomed  to  call  his  own,  all  in  which  he  has  placed 
his  happiness,  and  the  security  of  which  is  essential  to  that  happiness, 
under  the  unlimited  dominion  of  others,  whether  it  is  not  wiser 
that  this  power  should  be  exercised  by  one  man  than  by  many. 

The  theory  of  our  governments,  State  and  National,  is  opposed  to 
the  deposit  of  unlimited  power  anywhere.  The  executive,  the  legis- 
lative, and  the  judicial  branches  of  these  governments  are  all  of 
limited  and  defined  powers. 

There  are  limitations  on  such  power  which  grow  out  of  the 
essential  nature  of  all  free  governments.  Implied  reservations  of 
individual  rights,  without  which  the  social  compact  could  not  exist, 
and  which  are  respected  by  all  governments  entitled  to  the  name. 
No  court,  for  instance,  would  hesitate  to  declare  void  a  statute  which 
enacted  that  A.  and  B.  who  were  husband  and  wife  to  each  other 
should  be  so  no  longer,  but  that  A.  should  thereafter  be  the  husband 
of  C,  and  B.  the  wife  of  D.  Or  which  should  enact  that  the  home- 
stead now  owned  by  A.  should  no  longer  be  his,  but  should  hence- 
forth be  the  property  of  B.  Whiting  v.  Fond  du  Lac,  25  Wis.  188 ; 
Cooley  on  Constitutional  Limitations,  129,  175,  487 ;  Dillon  on  Mu- 
nicipal Corporations,  §  587. 

Of  all  the  powers  conferred  upon  government  that  of  taxation  is 
most  liable  to  abuse.  Given  a  purpose  or  object  for  which  taxation 
may  be  lawfully  used  and  the  extent  of  its  exercise  is  in  its  very 
nature  unlimited.  It  is  true  that  express  limitation  on  the  amount 
of  tax  to  be  levied  or  the  things  to  be  taxed  may  be  imposed  by 
constitution  or  statute,  but  in  most  instances  for  which  taxes  are 
/  levied,  as  the  support  of  government,  the  prosecution  of  war.  the 
'  national  defence,  any  limitation  is  unsafe.  The  entire  resources  of 
the  people  should  in  some  instances  be  at  the  disposal  of  the 
government. 

The  power  to  tax  is,  therefore,  the  strongest,  the  most  prevading 
of  all  the  powers  of  government,  reaching  directly  or  indirectly 
to  all  classes  of  the  people.  It  was  said  by  Chief  Justice  Marshall, 
in  the  case  of  McCulloch  v.  The  State  of  Maryland,  4  Wheat.  431, 
that  the  power  to  tax  is  the  power  to  destroy.  A  striking  instance 
of  the  truth  of  the  proposition  is  seen  in  the  fact  that  the  existing 
tax  of  ten  per  cent,  imposed  by  the  United  States  on  the  circulation  of 
all  other  banks  than  the  national  banks,  drove  out  of  existence  every 
State  bank  of  circulation  within  a  year  or  two  after  its  passage. 
This  power  can  as  readily  be  employed  against  one  class  of  indi- 
viduals and  in  favor  of  another,  so  as  to  ruin  the  one  class  and  give 
unlimited  wealth  and  prosi)erity  to  the  other,  if  there  is  no  implied 
limitation  of  the  uses  for  which  the  power  may  be  exercised. 

To  lay  with  one  hand  the  power  of  the  government  on  the  property 


I 


SECT.  I.  C]  LOAN    ASSOCIATION    V.   TOPEKA.  193 

of  the  citizen,  and  with  the  other  to  bestow  it  upon  favored  indi- 
viduals to  aid  private  enterprises  and  build  up  private  fortunes,  is 
none  the  less  a  robbery  because  it  is  done  under  the  forms  of  law 
and  is  called  taxation.  This  is  not  legislation.  It  is  a  decree  under 
legislative  forms. 

Kor  is  it  taxation.  A  "  tax,"  says  Webster's  Dictionary,  "  is  a 
rate  or  sura  of  money  assessed  on  the  person  or  property  of  a  citizen 
by  government  for  the  use  of  the  nation  or  state."  "Taxes  are 
burdens  or  charges  imposed  by  the  legislature  upon  persons  or  prop- 
erty to  raise  money  for  public  purposes."  Cooley  on  Constitutional 
Limitations,  479. 

Coulter,  J.,  in  Northern  Liberties  v.  St.  John's  Church  (13  Penn. 
St.  104),  says,  very  forcibly,  "  I  think  the  common  mind  has  every- 
where taken  in  the  understanding  that  taxes  are  a  public  imposition, 
levied  by  authority  of  the  government  fur  the  purpose  of  carrying  on 
the  government  in  all  its  machinery  and  operations  — that  they  are 
imposed  for  a  public  purpose."  See  also  Pray  v.  Northern  Liber- 
ties, 31  Id.  69;  Matter  of  Mayor  of  New  York,  11  Johns.  77;  Cam- 
den y.  Allen,  2  Dutch.  398  ;  Sharpless  v.  Mayor  of  Philadelphia, 
svpra  ;  Hanson -y.  Vernon,  27  Iowa,  47;  Whiting  v.  Pond  du  Lac, 
25  Wis.  188. 

We  have  established,  we  think,  beyond  cavil  that  there  can  be  no 
lawful  tax  which  is  not  laid  for  a  public  purpose.  It  may  not  be 
easy  to  draw  the  line  in  all  cases  so  as  to  decide  what  is  a  public 
purpose  in  this  sense  and  what  is  not. 

It  is  undoubtedly  the  duty  of  the  Legislature  which  imposes  or 
authorizes  municipalities  to  impose  a  tax  to  see  that  it  is  not  to  be 
used  for  puri)oses  of  private  interest  instead  of  a  public  use,  and  the 
courts  can  only  be  justified  in  interposing  when  a  violation  of  this 
principle  is  clear  and  the  reason  for  interference  cogent.  And  in 
deciding  whether,  in  the  given  case,  the  object  for  which  the  taxes 
are  assessed  falls  upon  the  one  side  or  the  other  of  this  line,  they 
must  be  governed  mainly  by  the  course  and  usage  of  the  government, 
the  objects  for  which  taxes  have  been  customarily  and  by  long  course 
of  legislation  levied,  what  objects  or  purposes  have  been  considered 
necessary  to  the  support  and  for  the  proper  use  of  the  government, 
whether  State  or  municipal.  Whatever  lawfully  pertains  to  this 
and  is  sanctioned  by  time  and  the  acquiescence  of  the  people  may 
well  be  held  to  belong  to  the  public  use,  and  proper  for  the  main- 
tenance of  good  government,  though  this  may  not  be  the  only  crite- 
rion of  rightful  taxation. 

But  in  the  case  before  us,  in  which  the  towns  are  authorized  to 
contribute  aid  by  way  of  taxation  to  any  class  of  manufacturers, 
there  is  no  difficulty  in  holding  that  this  is  not  such  a  public  purpose 
as  we  have  been  considering.  If  it  be  said  that  a  benefit  results  to\ 
the  local  public  of  a  town  by  establishing  manufactures,  the  same) 
may  be  said  of  any  other  business  or  pursuit  which  employs  capital,' 

13  / 


J-. 


194  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

or  labor.  The  merchant,  the  mechanic,  the  innkeeper,  the  banker, 
the  builder,  the  steamboat  owner  are  equally  promoters  of  the 
public  gootl,  and  equally  deserving  the  aid  of  the  citizens  by  forced 
contributions.  No  line  can  be  drawn  in  favor  of  the  manufacturer 
which  would  riot  open  the  coffers  of  the  public  treasury  to  the 
importunities  of  two-thirds  of  the  business  men  of  the  city  or  town. 

A  reference  to  one  or  two  cases  adjudicated  by  courts  of  the 
highest  character  will  be  sufficient,  if  any  authority  were  needed, 
to  sustain  us  in  this  proposition. 

In  the  case  of  Allen  v.  The  Inhabitants  of  Jay,  60  Maine,  124,  the 
town  meeting  had  voted  to  loan  their  credit  to  the  amount  of 
$10,000,  to  Hutchins  and  Lane,  if  they  would  invest  $12,000  in  a 
steam  saw-mill,  grist-mill,  and  box-factory  machinery,  to  be  built 
in  that  town  by  them.  There  was  a  provision  to  secure  the  town  by 
mortgage  on  the  mill,  and  the  selectmen  were  authorized  to  issue 
town  bonds  for  the  amount  of  the  aid  so  voted.  Ten  of  the  taxable 
inhabitants  of  the  town  filed  a  bill  to  enjoin  the  selectmen  from 
issuing  the  bonds. 

The  Supreme  Judicial  Court  of  Maine,  in  an  able  opinion  by  Chief 
Justice  Appleton,  held  that  this  was  not  a  public  purpose,  and  that 
the  town  could  levy  no  taxes  on  the  inhabitants  in  aid  of  the  enter- 
prise, and  could,  therefore,  issue  no  bonds,  though  a  special  act  of 
the  legislature  had  ratified  the  vote  of  the  town,  and  they  granted 
the  injunction  as  prayed  for. 

Shortly  after  the  disastrous  fire  in  Boston,  in  1872,  which  laid  an 
important  part  of  that  city  in  ashes,  the  governor  of  the  State 
convened  the  legislative  body  of  Massachusetts,  called  the  General 
Court,  for  the  express  purpose  of  affording  some  relief  to  the  city 
and  its  people  from  the  sufferings  consequent  on  this  great  calamity. 
A  statute  was  passed,  among  others,  which  authorized  the  city  to 
issue  its  bonds  to  an  amount  not  exceeding  twenty  millions  of 
dollars,  which  bonds  were  to  be  loaned,  under  proper  guards  for 
securing  the  city  from  loss,  to  the  owners  of  the  ground  whose 
buildings  had  been  destroyed  by  fire,  to  aid  them  in  rebuilding. 

In  the  case  of  Lowell  v.  The  City  of  Boston,  in  the  Supreme 
Judicial  Court  of  Massachusetts  [111  Mass.  454],  the  validity  of 
this  act  was  considered.  We  have  been  furnished  a  copy  of  the 
opinion,  though  it  is  not  yet  reported  in  the  regular  series  of  that 
court.  The  American  Law  Review  for  July,  1873,  says  tliat  the 
question  was  elaborately  and  ably  argued.  The  court,  in  an  able 
and  exhaustive  opinion,  decided  that  the  law  was  unconstitutional, 
as  giving  a  right  to  tax  for  other  than  a  public  purpose. 

The  same  court  had  previously  decided,  in  the  case  of  Jenkins 
V.  Anderson,  103  Mass.  74,  that  a  statute  authorizing  the  town 
authorities  to  aid  by  taxation  a  school  established  by  the  will  of  a 
citizen,  and  governed  by  trustees  selected  by  the  will,  was  void 
because  the  school  was  not  under  the  control  of  the  town  officers. 


^.--As. . -^^ 


SECT.  I.  c]  KINGMAN   V.    CITY    OF    BROCKTON.  195 

and  was  not,  therefore,  a  public  purpose  for  which  taxes  could  be 
levied  on  the  inhabitants. 

The  same  principle  precisely  was  decided  by  the  State  Court  of 
Wisconsin  in  the  case  of  Curtis  v.  Whipple,  24  Wis.  350.  In  that 
case  a  special  statute  which  authorized  the  town  to  aid  the  Jefferson 
Liberal  Institute  was  declared  void  because,  though  a  school  of  learn- 
ing, it  was  a  private  enterprise  not  under  the  control  of  the  town 
authorities.  In  the  subsequent  case  of  Whiting  v.  Fond  du  Lac, 
already  cited,  the  principle  is  fully  considered  and  reaffirmed. 

These  cases  are  clearly  in  point,  and  they  assert  a  principle  which 
meets  our  cordial  approval. 

We  do  not  attach  any  importance  to  the  fact  that  the  town  author- 
ities paid  one  instalment  of  interest  on  these  bonds.  Such  a  payment 
works  no  estoppel.  If  the  Legislature  was  without  power  to  author- 
ize the  issue  of  these  bonds,  and  its  statute  attempting  to  confer 
such  authority  is  void,  the  mere  payment  of  interest,  which  was 
equally  unauthorized,  cannot  create  of  itself  a  power  to  levy  taxes, 
resting  on  no  other  foundation  than  the  fact  that  they  have  once 
been  illegally  levied  for  that  purpose. 

The  act  of  March  2,  1872,  concerning  internal  improvements,  can 
give  no  assistance  to  these  bonds.  If  we  could  hold  that  the 
corporation  for  manufacturing  wrought  iron  bridges  was  within  the 
meaning  of  the  statute,  which  seems  very  difficult  to  do,  it  would 
still  be  liable  to  the  objection  that  money  raised  to  assist  the  com- 
pany was  not  for  a  public  purpose,  as  we  have  already  demonstrated. 

Judgment  affirmed} 


KINGMAN   V.    CITY   OF  BROCKTON. 

153  Massachusetts,  255.     1891. 


i/^ 


Petitiox  in  equity,  under  the  Pub.  Sts.  c.  27,  §  129,  by  ten  taxa- 
ble inhabitants  of  the  city  of  Brockton,  to  prevent  the  carrying  out  i| 
of  an  order  of  the  city  council  appropriating  !i540,000  for  the  erec-  I 
tion  of  a  memorial  hall  and  public  library  building.     The  case  was 
heard  by  Holmes,  J.,  who  ordered  the  petition  to  be  dismissed; 
and  the  petitioners  appealed  to  this  court.     The  facts  appear  in  the  , 
opinion.  I 

The  case  was  argued  at  the  bar  in  October,  1890,  and  afterwards,  j 

in  January,  1891,  was  submitted  on  the  briefs  to  all  the  judges.  j 

C.  Allen-,  J.     The  counsel  for  the  petitioners  does  not  controvert  ^ 

the  constitutionality  of  the  statute  itself,  St.  1890,  c.  432,  under  |  | 

which  the  city  council  has  assumed  to  act.     That  statute  authorizes  | 

the  city  to  appropriate  a  sum  of  money  for  the  erection  of  a  memorial  '  -j 

I 
1  Mr.  Justice  Clifford  delivered  a  dissenting  opinion. 


196  THE    LEGISLATIVE    DEPARTMENT.  [cHAP.  IV. 

hall,  to  be  used  and  maintained  as  a  memorial  to  the  soldiers  and 
sailors  of  the  war  of  the  llebellion.  This  may  properly  be  deemed 
to  be  a  public  purpose,  and  a  statute  authorizing  the  raising  of  money 
by  taxation  for  the  erection  of  such  a  memorial  hall  may  be  vindi- 
cated on  the  same  grounds  as  statutes  authorizing  the  raising  of 
money  for  monuments,  statues,  gates  or  archways,  celebrations,  the 
publication  of  town  histories,  parks,  roads  leading  to  points  of  line 
natural  scenery,  decorations  upon  public  buildings,  or  other  public 
ornaments  or  embellishments,  designed  merely  to  promote  the  gen- 
eral welfare,  either  by  providing  for  fresh  air  or  recreation,  or  by 
educating  the  public  taste,  or  by  inspiring  sentiments  of  patriotism 
or  of  respect  for  the  memory  of  worthy  individuals.  The  reasonable 
use  of  public  money  for  such  purposes  has  been  sanctioned  by  several 
different  statutes,  and  the  constitutional  right  of  the  Legislature  to 
pass  such  statutes  rests  on  sound  principles.  Pub.  Sts.  c.  27,  §§  10, 
11;  Sts.  1882,  cc.  154,  255,  §  5;  1883,  c.  119;  1884,  c.  42;  188G,  c. 
76;  1889,  c.  21.     Higginson  v.  Nahant,  11  Allen,  530. 

Assuming  to  act  under  the  authority  of  the  St.  of  1890,  c.  432,  the 
city  council  of  Brockton  proceeded  to  pass  an  order  appropriating 
$40,000  for  the  purpose  of  erecting  a  "memorial  hall  and  public 
library  building,  ...  a  portion  of  said  building  to  be  for  the  use 
of  Fletcher  Webster  Post  G.  A.  R.  No.  13,  so  long  as  it  shall  exist 
as  an  organization,  .  .  .  the  said  plans  [of  the  building]  to  be 
approved  by  .  .  .  the  trustees  of  said  G.  A.  R.  Post."  By  this  vote, 
a  portion  of  the  contemplated  building  is  to  be  devoted  to  the  use  of 
the  said  Grand  Army  Post  during  its  existence  as  an  organization  and 
,the  plans  are  to  be  approved  by  the  trustees  of  said  Post.  The  re- 
spondent contends  that  this  vote  is  within  the  authority  of  the 
statute.  This  is  certainly  open  to  doubt;  but  assuming  it  to  be  so, 
the  question  presented  for  determination  is  whether  the  luirpose 
thus  expressed  is  a  public  purpose  for  which  money  can  be  raised  by 
a  town  by  taxation,  even  with  legislative  sanction. 

It  might  perhaps  be  sufficient  to  declare,  as  the  petitioners  con- 
tend, that  the  statute  is  not  broad  enough  to  cover  the  vote  of  the 
city  council,  and  that  the  real  question  to  be  determined  is  merely 
whether  money  can  be  lawfully  raised  by  the  city  for  the  purpose 
expressed,  in  the  absence  of  any  statute  expressly  authorizing  it. 
/^But  it  is  better  to  meet  the  broader  question  whether  the  Legislature 
I    can  authorize  a  city  or  town  to  make  such  a  use  of  public  money;  and, 
I    in  the  opinion  of  a  majority  of  the  court,  it  cannot. 

The  general  rule  is  well  established,  and  is  illustrated  by  a  great 
variety  of  decided  cases,  that  taxation  must  be  limited  to  public 
purposes.  It  was  accordingly  held  in  the  recent  case  of  Mead  v. 
Acton,  139  Mass.  341,  that  a  statute  authorizing  a  town  to  pay  boun- 
ties to  soldiers  who  re-enlisted  in  1864  and  were  credited  to  the  town 
was  unconstitutional;  the  purpose  being  to  benefit  individuals,  and 
not  the  public.     The  Fletcher  Webster  Post  G.  A.  R.  No.  13  is  not 


I 


SECT.  I.  c]  KINGMAN   V.    CITY   OF   BROCKTON.  197 

a  public  body,  but  it  is  an  association  of  individuals.  To  support^ 
and  maintain  such  an  association  cannot  be  deemed  to  be  a  publicT 
pmpose.  If  a  city  or  town  maybe  authorized  to  erect  a  liuildihg. 
tFBe" devoted  in  part  to  the  use  of  such  an  association  so  long  as  it' 
shall  exist  as  an  organization,  it  is  not  easy  to  see  why  it  may  not 
be  authorized  to  erect  one  exclusively  for  that  purpose,  and  to  pro- 
vide the  necessary  furniture,  and  indeed  to  bear  all  the  expenses  of 
maintaining  the  association.  If  a  city  or  town  may  be  authorized 
to  give  such  assistance  to  a  body  of  persons  who  have  been  soldiers 
or  sailors  in  the  war,  the  same  principle  would  seem  to  extend  so 
far  as  to  include  those  who  have  rendered  other  great  and  meritorious 
services,  and  thus  are  entitled  to  public  gratitude,  such,  for  example, 
as  societies  of  disabled  or  past  firemen  or  policemen.  If  once  the 
principle  is  adopted  that  a  city  or  town  may  be  authorized  to  raise 
money  by  taxation  for  conferring  benefits  on  individuals  merely 
because  in  the  past  they  have  rendered  important  and  valuable  ser- 
vices for  the  benefit  of  the  general  public,  occasions  will  not  be 
wanting  which  will  appeal  strongly  to  the  popular  sense  of  gratitude, 
or  to  the  popular  emotion;  and  the  interests  and  just  rights  of  minor- 
ities will  be  in  danger  of  being  disregarded.  If  the  body  of  persons 
to  be  benefited  is  numerous,  the  greater  is  the  influence  that  may 
probably  be  brought  to  bear  to  secure  such  an  appropriation  of  the 
public  money. 

Under  such  circumstances,  it  is  necessary  to  recur  and  to  adhere 
firmly  to  fundamental  principles.     The  right  of  taxation  by  a  city  or 
town  extends  only  to  raising  money  for  jDublic  purposes  and  uses.^-' 
There  is  no  definition  of  a  public  purpose  or'  use  which  can  include/ 
the  maintenance  and  support  of  a  Grand  Army  Post. 

It  is  said  that,  if  a  city  has  a  public  building  already  erected 
which  is  larger  than  its  present  needs  for  municipal  purposes  require, 
it  may  allow  portions  of  such  building  to  be  used  for  other  purposes 
for  the  time  being,  either  for  a  stipulated  rent  or  price,  or  gratui- 
tously; and,  further,  that  in  erecting  a  public  building  a  city  need 
not  limit  the  size  of  it  to  actual  existing  needs,  but  may  make  a 
reasonable  provision  for  probable  future  wants.  All  this,  within 
proper  limits,  is  true.  Spaulding  v.  Lowell,  23  Pick.  71 ;  French  v. 
Quincy,  3  Allen,  9;  Worden  v.  New  Bedford,  131  Mass.  23.  But 
there  may  be  some  danger  of  extending  this  doctrine  too  far.  Should 
a  question  arise  whether  a  contemplated  building  exceeded  what  was 
allowable,  with  reference  to  legitimate  prospective  needs,  such  ques- 
tion would  have  to  be  determined  upon  its  own  merits;  and  the 
good  faith  of  the  transaction,  and  the  soundness  of  the  judgment 
shown  in  providing  for  future  wants,  might  have  to  be  considered. 
No  such  question  has  arisen  heretofore,  or  arises  now.  In  the 
present  case,  it  is  proposed  to  erect  a  building  with  the  express  pur- 
pose of  devoting  a  portion  of  it  to  the  use  of  the  G.  A.  R.  Post,  not 
temporarily,  but  as  long  as  that  organization  may  exist. 


198  THE   LEGISLATIVE   DEPARTMENT.  [CUAT.  IV. 

The  St.  of  1885,  c.  60,  is  referred  to,  which  authorizes  any  city  or 
town  to  lease,  for  a  period  not  exceeding  five  years,  to  any  Post  of 
the  Grand  Army  of  the  Republic  established  in  such  city  or  town,  to 
be  used  by  such  Post  solely  for  the  purposes  of  its  organization,  any 
public  building  or  part  therof,  except  schoolhouses  in  actual  use 
as  such,  on  such  terms  as  the  board  of  aldermen  or  the  selectmen 
may  determine.  Without  now  considering  whether  in  any  respect 
this  statute  goes  too  far,  or  is  liable  to  abuse,  it  is  sufficient  to  say 
that  it  refers  only  to  existing  public  buildings,  and  by  no  means 
authorizes  the  erection  of  a  building  to  be  let  to  a  Grand  Army  Post 
at  a  nominal  rent. 

In  addition  to  Mead  v.  Acton,  139  Mass.  3-41,  and  cases  there 
cited,  the  following,  amongst  others,  may  also  be  referred  to  as 
tending  to  support  the  views  above  expressed  in  respect  to  the 
proper  limits  of  the  right  of  taxation.  Jenkins  v.  Andover,  103 
]\[ass.  94;  Loan  Association  v.  Topeka,  20  Wall.  655;  Parkersburg 
V.  Brown,  106  U.  S.  487;  Osborne  v.  Adams,  106  U.  S.  181;  S.  C. 
109  U.  S.  1;  Ottawa  v.  Carey,  108  U.  S.  110;  Cole  v.  La  Grange, 
113  U.  S.  1;  Philadelphia  Association  v.  Wood,  39  Penn.  St.  73; 
State  V.  Osawkee,  14  Kans.  418,  an  instructive  judgment  by  Brewer, 
J.;  Mather  v.  Ottawa,  114  111.  659;  Feldman  v.  City  Council,  23 
S.  C.  57;  Coates  v.  Campbell,  37  Minn.  498;  State  v.  Tappan,  29 
Wis.  664;  Brewer  Brick  Co.  v.  Brewer,  62  Maine,  62.  See  also 
Dillon,  Mun.  Corp,  (4th  ed.)  §§  159,  508,  736;  Cooley  on  Taxation, 
c.  4.  Decree  for  petitioners. 


N 


BLAIR  V.   CUMING   COUNTY. 
Ill  United  States,  363.     1884. 


This    is    an   action  brought  in  the  Circuit  Court  of  the   United 

States  for  the  District  of  Nebraska,  by  the  plaintiff  in  error  against 

/'  ;  the  County  of  Cuming,  a  body  corporate  of  the  State  of  Nebraska,  to 

V^  recover  the  money  due  on  coupons  cut  from  certain  bonds.     The  case 

,    was  tried  on  a  petition  and  a  demurrer  thereto,  the  latter  alleging,  as 

cause  of  demurrer,  that  the  petition  did  not  state  facts   sufficient  to 

constitute  a  cause  of  action. 

1  [The   bonds  were  issued  under  a  statute  authorizing  counties  to 
/  issue  bonds  "  to  aid  in  the  construction  of  any  railroad  or  other  work 
i    of   internal   improvement,"    and  were   for  juaking   a__water__power_ 
\^miprovement  for  the  purpose  of  propelling  public  grist-mills.     De- 
fendant's  demurrer  was   sustained  and  judgment  was   rendered  in 
its  favor.     Plaintiff   sued  out  a  writ  of  error.] 


SECT,  I.  C]  BLAIR   V.    CUMING    COUNTY.  199 

Mr.  Justice  Blatchford  delivered  the  opinion  of  the  court. 

It  is  also  objected  that  improving  the  water-power  of  the  river,  by 
constructing  a  canal  for  water-power  purposes,  is  merely  digging  a  ;   I  y 
mill   race,  and  that  the  doing  so,  for  the  purpose  of   propelling  a  j 
public  grist-mill  in  the  precinct,  is  not  constructing  a  work  of  in-  ' 
ternal   improvement,  within   the    statute.     We  are  not  referred   to 
any  decision  of  the  highest  court  of  Nebraska,  made  before  the  plain- 
tiff  became,  on   January   1st,  1876,  the   bo7ia  Jide   owner   of   these 
coupons,  or  even  since,  holding  in  accordance  with  the  contention 
of  the  defendant. 

In  Osborne  v.  County  of  Adams,  106  U.  S.  181,  this  court  decided 
in  November,  1882,  that,  under  the  same  statute  that  is  in  question 
there,  bonds  issued  to  aid  in  the  construction  of  a  steam  grist- 
mill were  not  issued  to  aid  in  the  construction  of  a  work  of  internal 
improvement.  There  was  a  suggestion  in  the  opinion  in  that  case, 
that  the  statute  did  not  cover  the  construction  of  any  kind  of  grist- 
mill as  a  work  of  internal  improvement.  During  the  same  term  a 
petition  for  rehearing  was  filed,  and  the  attention  of  the  court  was 
called  to  the  case  of  Traver  v.  Merrick  County,  14  Neb.  327,  in  which 
the  Supreme  Court  of  Nebraska  had  held,  at  its  January  Term,  1883, 
that  county  bonds  issued  by  county  commissioners,  under  the  act  of 
1869,  as  a  loan  to  an  individual  to  aid  in  building  a  public  grist-mill 
and  water-power  in  the  county,  were  valid.  But  this  court  adhered 
to  its  view  that  the  act  did  not  cover  the  construction  of  a  steam 
grist-mill,  and  denied  the  rehearing.  Osborne  v.  Adams  County, 
109  U.  S.  1. 

In  Traver  v.  Merrick  County,  before  cited,  the  court  considered 
the  act  of  1869  and  the  question  whether  a  water  grist-mill  was  a 
work  of  internal  improvement,  within  the   meaning  of  that  act.     It 
cited  the  provisions  of  an  act  "relating  to  mills  and  mill   dams," 
which  passed  and  took  effect  February  26th,  1873,  Gen.  Stat,  of  1873, 
chap.  44,  p.  472,  and  especially  sections  1,  2,  and  24  to  29  of  that  act, 
as  authorizing  a  person  who,  in  good  faith,  had  expended  a  considera- 
ble sum  of  money  towards  the  erection  of  a  grist-mill  on  a  stream,  to 
obtain  an  injunction  against  the  making  by  another  person  of  a  dam 
across  the  same  stream  on  his  own  land,  the  effect  of  which  would  be 
to  destroy  the  water-power  of  the  former  ;  and  it  stated  that,  under 
the  cases  of  Nosser  v.  Seeley,  10  Neb.  460,  and  Seeley  v.  Bridges,  13 
Id.  547,  that   was   the  settled  law   of  the    State.     The  act  of  1873  j 
provides    that   all  mills  for  grinding   grain,  and   which  shall  grind  i 
for  toll,  shall  be  deemed  public  mills  ;  that  the  owner  or  occupier  of 
every  public  mill  shall  grind  the  grain  brought  to  his  mill  as  well  asi 
the  nature  and  condition  of  his  mill  will  permit,  and  in  due  time  as/ 
the  same  shall  be  brought ;  and  that  he  shall  post  in  the  mill  his 
rates  of  toll,  and  the  county  commi.'ssioners  of  the  county  shall  es- 


200  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tablish  and  regulate  the  amount  of  toll  to  be  charged.  The  court 
held,  in  Traver  c.  Merrick  County,  that  the  legislature  had  authorit}^ 
to  provide  that  streams  capable  of  being  applied  to  mill  purposes 
should  be  so  utilized  for  the  benefit  of  the  public ;  that  the  i-ight  to 
erect  a  mill  and  dam,  on  paying  dauiages  for  the  injury  caused,  was 
granted  for  the  better  use  of  the  water-power,  on  considerations  of 
public  policy  and  the  general  good,  with  a  view  to  keeping  up  mills 
for  use  ;  and  that,  under  the  act  of  1873,  water  grist-mills  were^nills 
for  the  use  of  the  public.  It  also  held  tliat^  undeFnie  act  of  18G9, 
works  of  internal  improvement  were  not  restricted  to  railroads  and 
works  of  like  character,  such  as  canals,  turnpikes  and  bridges;  that, 
if  an  internal  improvement  was  for  public  use,  subject  to  the  control 
and  regulation  of  the  legislature,  it  was  within  the  act  ;  and  that,  as 
the  mill  in  that  case  was  one  to  be  propelled  by  water,  and  was  for 
the  use  of  all  who  might  desire  to  patronize  it,  at  such  rates  of  toll 
as  might  be  prescribed  by  the  county  commissioners  of  the  county,  it 
was  a  work  of  internal  improvement,  within  the  act. 

We  concur  in  these  views,  and  regard  them  as  a  sound  exposition 
of  the  legislation  of  Nebraska.     In  Traver  v.  Merrick  County  the 

filing  aided  was  the  building  a  public  grist-mill  and  water-power.  _^  As 
we  understand  the  present  case,  the  thing  aided  is  the  i mj)roving_tIie_ 
■^ater-power  of  a  river,  by  constructing  a  canal  for  water-^ower  pur- 
poses to  propel  public  grist-mills.  This  is  within  the  act  0FI86S: 
A  water  grist-mill  cannot  be  run  so  as  to  be  a  public  grist-mill,  unless 
it  is  furnislied  with  water-power,  and,  if  an  existing  river  needs  to  be 
improved  to  furnish  such  power,  the  improvement  of  it  is  a  public 

ywork  of  internal  improvement. 

In  Township  of  Burlington  v.  Beasley,  94  U.  S.  310,  this  court 
held  that  a  steam  custom  grist-mill,  not  on  a  water-course  or  operated 
by  water-power,  was  a  "  work  of  internal  improvement,"  within  an 

;  act  of  Kansas  authorizing  municipal  bonds  in  aid  of  "  the  construc- 
tion of  railroads  or  water-power,  ...  or  for  other  works  of 
internal  improvement."  The  decision  was  based,  in  part,  on  the 
ground,  that  there  was  another  act  which  declared  that  "  all  water, 
steam  or  other  mills,  whose  owners  or  occupiers  grind  or  offer  to 
grind  grain  for  toll  or  pay,  are  hereby  declared  public  mills,"  and 
provided  for  the  order  iu  which  customers  should  be  served,  and 
prescribed  the  duties  of  the  miller,  and  that  the  rates  of  toll  should 
be  posted ;  and,  as  it  would  also  be  competent  for  the  legislature  to 
regulate  the  toll,"  it  was  held  that  aid  to  the  mill  was  aid  of  a  public 

^  work  of  internal  improvement. 

,  Enterprises  of  a  class  within  which  that  in  the  present  case  falls 
,are  so  far  of  a  public  nature  that  private  propert}-  maybe  appro- 
'  priated  to  carry  them  into  effect.  Boston  &  Eoxbury  Mill  Corp.  v. 
Newman,  12  Pick.  467;  Commonwealth  v.  Essex  Company,  13  Gray, 
239;  Lowell  v.  Boston,  111  Mass.  454,  404;  Scudder  v.  Trenton 
Delaware   Falls   Co.,  1  Saxton   Ch.    694;   Beekman   v.   Saratoga   & 


SECT.  I.  C]  DEERING  V.    PETERSON.  201 

Schenectady  Railroad  Co.,  3  Paige  45.  And  when  the  legislature 
has  given  to  grist-iuills  and  the  water-power  connected  with  them 
such  a  public  character  as  in  the  present  case,  the  improvement  of 
the  water-power  must  be  regarded  as  a  public  work  of  internal  im- 
provement, which  may  be  aided  in  its  construction  by  the  issue  of 
bonds,  under  the  act  in  question. 
These  conclusions  require  that 

The  judgment  of  the  Circuit  Court  should  be  reversed  and  the  case 
he  remanded  to  that  court,  ivlth  direction  to  overrule  the  de- 
murrer to  the  jyetition,  and  to  take  such  further  ijroce.edinrjs  in 
the  cause  as  may  be  required  by  law  and  as  shall  not  be  incon- 
sistent with  this  opinion. 


DEERING  V.  PETERSOK 

Miiniesota, ;  77  N.  W.  568.     1898. 

Appeal  from  District  Court,  Marshall  County ;  Frank  Ives,  Judge. 

Action  by  William  Deering  &  Co.  against  P.  A.  Peterson.  John 
Gillespie,  Jr.,  was  garnishee,  and  the  board  of  county  commissioners 
of  Marshall  county  interposed  as  claimants.  From  an  order  over- 
ruling a  demurrer  to  the  complaint  of  interveners,  plaintiff  appeals. 
Reversed. 

Canty,  J.  The  garnishee  herein  disclosed  that  he  had  in  his 
possession  and  under  his  control  142  bushels  of  wheat,  the  property 
of  defendant.  It  is  also  to  be  inferred  from  the  disclosure  that 
defendant  held  the  title  to  this  wheat  under  a  chattel  mortgage  given 
by  one  Herman  Peterson  on  his  crop.  It  appeared  also  on  the  dis- 
closure that  Marshall  county  made  a  claim  to  the  wheat.  Thereupon 
the  board  of  county  commissioners  of  that  county  intervened  as 
claimimts,  and  alleged  in  their  complaint  that  on  March  25,  1893, 
said  Herman  Peterson  was,  and  ever  since  has  been,  the  owner  and 
in  actual  possession  of  certain  described  land  in  that  county,  on  which 
the  wheat  in  question  was  raised;  that  on  said  March  25th  he 
applied,  under  chapters  225,  226,  Laws  1893,  for  mone}-  to  buy  seed 
grain ;  and  that  the  money  was  furnished  him.  The  application, 
and  all  the  proceedings  had  in  procuring  the  money,  are  set  out  in 
said  complaint,  and  the  interveners  claim  a  lien  on  the  wheat  in 
question  for  the  repayment  of  the  money.  Plaintiff  demurred  to  the 
complaint  on  the  ground  that  it  does  not  state  a  cause  of  action,  and 
on  the  ground  that  there  is  a  defect  of  parties  claimant,  and  appeals 
from  an  order  overruling  the  demurrer. 

Chapter  225  is  entitled  ''  An  Aot  to  appropriate  money  for  seed- 
grain  loans  to  farmers  in  this  State  whose  crops  were  destroyed  by 


202  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

hail  or  storms  last  year.  The  act  appropriates  $75,000  out  of  the 
State  treasury  for  such  purpose,  and  provides  that  any  person  desir- 
ing to  avail  himself  of  the  benefits  of  the  act  shall  file  his  application 
with  the  town  clerk,  who  shall  forward  it  to  the  county  auditor,  who 
shall  publish  a  notice  that  the  board  of  county  commissioners  will 
meet  at  his  office  on  a  day  named  for  the  purpose  of  considering  the 
allowance  of  relief  to  such  applicants.  It  is  further  provided  that 
the  board  shall  at  such  time  fix  and  determine  the  amount  to  be 
allowed  to  each  applicant,  the  county  auditor  shall  furnish  a  copy 
of  the  resolution  to  the  State  auditor,  and  the  governor.  State  treas- 
urer, and  State  auditor  shall  meet  and  distribute  the  appropriation 
among  the  several  counties  in  which  relief  is  sought.  It  is  further 
provided  "  that  any  person  or  persons  owning  more  than  160  acres 
of  laud  free  from  mortgage  incumbrance,  whether  the  same  be  culti- 
vated or  not,  shall  be  deprived  from  any  of  the  benefits  set  forth  in  this 
act."  The  act  further  provides  that  "the  county  auditor  shall  levy  a 
tax  against  the  land  for  which  seed-grain  loan  may  be  granted,  and 
on  which  such  loan  is  hereby  declared  to  be  a  lien,  which  sliall  take 
precedence  over  any  and  all  incumbrances."  Section  5  provides  '•  that 
such  tax  shall  be  paid  in  three  installments  as  nearly  e(iual  as  may 
be,  and  be  included  in  the  tax  levy  for  the  years  1894,  1895,  and 
1896."  Section  6  provides  that,  to  distribute  the  money  appropriated, 
the  State  auditor  shall  draw  a  warrant  on  the  State  treasurer  for  the 
amount  allowed  each  county,  and  the  county  auditor  shall  thereupon 
draw  his  warrant  on  the  county  treasurer  for  the  amount  allowed 
each  person.  Section  7  provides  that  all  moneys  collected  on  such 
seed-loan  tax  shall  be  paid  over  to  the  State  treasurer,  and  section  8 
provides  that,  whenever  such  tax  remains  unpaid  and  becomes  delin- 
quent, the  board  of  county  commissioners  shall  order  the  amount 
thereof  paid  to  the  State  treasurer  out  of  the  county  treasury.  Chap- 
ter 226  amends  chapter  225  in  several  particulars,  and  declares 
the  seed-grain  loan  a  lien  on  the  land  for  which  the  loan  was  made, 
"  and  upon  the  crop  of  grain  raised  each  year  by  the  person  receiving 
such  loan  until  such  amount  is  fully  paid."  It  also  provides  that 
such  lien  ''shall  take  precedence  over  any  and  all  incumbrances 
acquired  subsequent  to  the  lien  of  such  loan." 

[Several  grounds  of  objection  to  the  action  of  the  lower  court  are 
considered  and  held  not  to  be  well  taken.] 

5.  But  there  is  one  ground  on  which,  in  our  opinion,  this  statute 
is  unconstitutional.  It  appropriates  public  money  for  a  private  pur- 
pose. It  is  well  settled  that  public  money  may  be  appropriated  for 
the  support  of  paupers,  but  the  statute  in  question  does  not  limit  the 
appropriation  to  those  who  are  paupers.  On  the  contrary,  it  permits 
every  one  who  has  not  more  than  160  acres  of  land,  free  from  mort- 
gage incumbrance,  to  borrow  from  the  State.  A  person  might  have 
10,000  acres  of  land,  worth  $100,000,  subject  to  a  mortgage  of  only 
$500,  and  he  would  be  entitled,  under  the  terms  of  this  act,  to  borrow 


SECT.  I.  C]  WDRTS   V.    HOAGLAND.  203 

from  the  State.  He  might  also  have  $1,000,000  worth  of  personal 
property,  and  still  he  could  borrow  from  the  State.  Section  10  of 
article  9  of  the  Constitution  provides  :  "  The  credit  of  the  State  shall 
never  be  given  or  loaned  in  aid  of  any  individual  or  corporation." 
If  the  State  cannot  loan  its  credit,  it  cannot  borrow  the  money  on  its 
own  bonds,  and  then  loan  the  money.  It  cannot  do  indirectly  what 
it  cannot  do  directly.  It  was  held  in  Coates  v.  Campbell,  37  Minn. 
498,  35  N.  W.  366,  that  a  village  cannot  issue  bonds  to  aid  in  an 
enterprise  partly  public  and  partly  private.  Taxation  cannot  be 
imposed  for  a  private  purpose,  and,  if  the  State  can  appropriate  for 
a  private  purpose  the  money  in  its  treasury  and  then  replace  it  by 
taxation,  it  can  do  indirectly  what  it  cannot  do  directly.  The  cases 
of  Lowell  V.  City  of  Boston,  111  Mass.  454,  and  State  v.  Osawkee  Tp., 
14  Kan.  418,  are  much  in  point.  The  latter  case  holds  that  no  one 
can  obtain  such  public  aid  unless  he  is  actually  a  pauper,  however 
imminent  and  immediate  the  danger  of  his  becoming  such.  It  may 
be  that,  if  this  question  were  before  us,  we  would  not  go  thus  far, 
but  would  hold  that,  in  the  midst  of  such  a  great  public  calamity,  a 
person  who  is  within  one  degree  of  being  a  pauper,  and  in  imminent 
and  immediate  danger  of  becoming  such,  may,  for  the  purpose  of 
preventing  him  from  becoming  such,  be  given  aid  by  the  State  or 
municipality  without  violating  the  constitution.  Such  was  the  hold- 
ing in  State  v.  Nelson  County,  1  N.  D.  88,  45  K  W.  33.  But  that 
question  is  not  before  us  in  this  case.  Our  statute  did  not  confine 
its  benefits  to  those  who  were  a  public  charge  and  those  in  imminent 
and  immediate  danger  of  becoming  such. 

[After  considering  other  matters,  the   order   is  reversed  on   the 
ground  stated  in  the  portion  of  the  opinion  given  above.] 


WUETS   V.   HOAGLAND. 
lU  United  States,  606.     1885. 

This  was  a  writ  of  error  by  the  devisees  of  Mary  V.  Wurts,  to 
reverse  a  judgment  confirming  an  assessment  of  commissioners  for 
the  drainage  of  lands,  under  the  statute  of  New  Jersey,  of  JNIarch 
8,  1871. 

Mk.  Justice  Gray,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

General  laws  authorizing  the  drainage  of  tracts  of  swamp  and  low 
lands,  by  commissioners  appointed  upon  proceedings  instituted  by 
some  of  the  owners  of  the  lands,  and  the  assessment  of  the  whole 
expense  of  the  work  upon  all  the  lands  within  the  tract  in  question, 
have  long  existed  in  the  State  of  New  Jersey,  and  have  been  sus- 


204  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tained  and  acted  on  by  her  courts,  under  the  constitution  of  1776,  as 
well  as  under  that  of  1844.  Stats.  December  23, 1783,  Wilson's  Laws, 
382;  Xovember  29,  1788,  and  November  24,  1792,  Paterson's  Laws, 
84, 119 ;  Jones  v.  Lore,  Pennington,  1048  ;  Doremus  v.  Smith,  1  South- 
ard, 142;  Westcott  v.  Garrison,  1  Halsted,  132;  State  v.  Frank  & 
Guisbert  Creek  Co.,  2  J.  S.  Green,  301 ;  State  v.  Newark,  3  Dutcher, 
185,  194;  Berdan  v.  Kiser  Drainage  Co.,  cited  3  C.  E.  Green,  69; 
Coster  V.  Tide  Water  Co.,  3  C.  E.  Green,  54,  68,  518,  531;  State  v. 
Blake,  6  Vroom,  208,  and  7  Vroom,  442 ;  Hoagland  v.  Wurts,  12 
Vroora,  175,  179. 

[The  New  Jersey  cases  are  discussed  at  some  length.] 

Tliis  review  of  the  cases  clearly  shows  that  general  laws  for  the 
drainage  of  large  tracts  of  swamps  and  low  lands,  upon  proceedings 
instituted  by  some  of  the  proprietors  of  the  lands  to  compel  all  to 
contribute  to  the  expense  of  their  drainage,  have  been  maintained  by 
the  courts  of  New  Jersey  (without  reference  to  the  power  of  taking 
private  property  for  the  public  use  under  the  right  of  eminent  domain, 
or  to  the  power  of  suppressing  a  nuisance  dangerous  to  the  jDublic 
health)  as  a  just  and  constitutional  exercise  of  the  power  of  the  legis- 
lature to  establish  regulations  by  which  adjoining  lands,  held  by 
various  owners  in  severalty,  and  in  the  improvement  of  which  all 
have  a  common  interest,  but  which,  by  reason  of  the  peculiar  natural 
condition  of  the  whole  tract,  cannot  be  improved  or  enjoyed  by  any 
of  them  without  the  concurrence  of  all,  may  be  reclaimed  and  made 
useful  to  all  at  their  joint  expense.  The  case  comes  within  the  prin- 
ciple upon  which  this  court  upheld  the  validity  of  general  mill  acts 
in  Head  v.  Amoskeag  Manufacturing  Co.,  113  U.  S.  9. 

It  is  also  well  settled  by  the  decisions  of  the  courts  of  New  Jersey 
that  such  proceedings  are  not  within  the  provision  of  the  constitution 
of  that  State  securing  the  right  of  trial  by  jury.  New  Jersey  Con- 
stitution of  1776,  art.  22 ;  Constitution  of  1844,  art.  1,  sec.  7 ;  Scudder 
V.  Trenton  Delaware  Falls  Co.,  Saxton,  694,  721-725;  In  re  Lower 
Chatham  Drainage,  7  Vroom,  442 ;  Howe  v.  Plainfield,  8  Vroom,  145. 

The  statute  of  1871  is  applicable  to  any  tract  of  land  within  the 
State  which  is  subject  to  overflow  from  freshets,  or  which  is  usually 
in  low,  marshy,  boggy  or  wet  condition.  It  is  only  upon  the  applica- 
tion of  at  least  five  owners  of  separate  lots  of  laud  included  in  the 
tract,  that  a  plan  of  drainage  can  be  adopted.  All  persons  interested 
have  opportunity  by  public  notice  to  object  to  the  appointment  of 
commissioners  to  execute  that  plan,  and  no  commissioners  can  be 
appointed  against  the  remonstrance  of  the  owners  of  the  greater  part 
of  the  lands.  All  persons  interested  have  also  opportunity  by  public 
notice  to  be  heard  before  the  court  on  the  commissioners'  report  of 
the  expense  of  the  work,  and  of  the  lands  which  in  their  judgment 
ought  to  contribute ;  as  well  as  before  the  commissioners,  and,  on  any 
error  in  law  or  in  the  principles  of  assessment,  before  the  court,  upon 
the  amount  of  the  assessment. 


SECT.  I.  d.]  KENTUCKY    RAILROAD    TAX    CASES.  205 

As  the  Statute  is  applicable  to  all  lands  of  the  same  kind,  and  as 
no  person  can  be  assessed  under  it  for  the  expense  of  drainage  with- 
out notice  and  opportunity  to  be  heard,  the  plaintiffs  in  error  have 
neither  been  denied  the  equal  protection  of  the  laws,  nor  been  de- 
prived of  their  property  without  due  process  of  law,  witliiu  the 
meaning  of  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States.  Barbiere  v.  Connolly,  113  U.  S.  27,  31 ;  Walker  v. 
Sauvinet,  92  U.  S.  90;  Davidson  v.  New  Orleans,  96  U.  S.  97  ;  Hagar 
V.  Eeclamation  District,  111  U.  S.  701.  Judgment  affirmed. 


d.   Notice;   Uniformity ;  Special  Taxes.  j/^ 

KENTUCKY  HAILEOAD  TAX   CASES. 

[Cincinnati,  New  Orleans,  and  Texas  Pacific  Railroad  Co.  r.  Com- 
monwealth OF  Kentucky,  and  otueu  cases.] 

115  United  States,  321.     18S5. 

The  Commonwealth  of  Kentucky  brought  its  several  actions 
against  the  railroad  companies  above  named  as  plaintiffs  in  error 
respectively,  to  recover  the  amounts  of  certain  taxes  levied  against 
each  of  them,  under  the  provisions  of  "An  act  to  prescribe  the  mode 
of  ascertaining  the  value  of  the  property  of  railroad  companies  for 
taxation,  and  for  taxing  the  same,"  approved  April  3,  1878.  Bullitt 
&  Feland's  General  Statutes  of  Kentucky,  1881,  1019. 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court.  After 
stating  the  facts,  he  continued  : 

Two  Federal  questions  arise  on  the  record,  in  these  cases,  contained 
in  the  following  propositions  atHrmed  by  the  plaintiffs  in  error  : 

First.  That  the  act  of  April  3,  1878,  and  the  taxes  levied  in  pur- 
suance of  it,  if  enforced,  as  it  is  sought  to  be,  in  these  judgments,  iu 
effect  take  the  property  of  the  defendants  below  without  due  process 
of  law  ;  and  — 

Second.  That  they  constitute  a  denial  of  the  equal  protection  of 
the  laws :  in  both  particulars  violating  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States. 

In  support  of  the  first  of  these  propositions,  it  is  contended  on 
behalf  of  the  plaintiffs  in  error,  that,  by  the  enforcement  of  these 
judgments,  they  will  be  deprived  of  their  property  without  due  pro- 
cess of  law,  because  the  valuation  of  their  property  under  the  act  is 
made  by  the  board  of  railroad  commissioners  without  the  right  on 
their  part  to  notice  of  the  proceeding,  or  the  riglit  to  be  heard  in 
opposition  to  any  proposed  action  of  the  board  in  its  progress. 


/ 


20G  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

/     It  has,  hOTv'ever,  been  repeatedly  decided  by  this  court  that  the 

/  proceedings  to  raise  the  public  revenue   by  levying  and  collecting 

/  taxes  are  not  necessarily  judicial,  and  that  "due  process  of  law,"  as 

I    applied  to  that  subject,  does  not  imply  or  require  the  right  to  such 

1    notice  and  hearing  as  are  considered  to  be  essential  to  the  validity 

of  the  proceedings  and  judgments  of  judicial  tribunals.     Notice  by 

statute  is  generally  the  only  notice  given,  and  that  has  been  held 

'sufficient.     ''In   judging   what  is  '  due    process   of   law,'"   said  Mr. 

Justice   Bradley,   in  Davidson  v.   New  Orleans,    96  U.  S.  97,    107, 

I  ".respect  must  be  had  to  the  cause  and  object  of  the  taking,  whether 

I  under  the  taxing^power,  the  power  of  eminent  domain,  or  the  power 

01   assessment   for   local  improvements,  or   none  of  these;  and,    if 

■found  to  be  suitable  or  admissible  in  the  special  case,  it  will  be  ad- 

I judged  to  be  'due  process  of  law;'  but  if  found  to  be  arbitrary, 

oppressive  and  unjust,  it  may  be  declared  to  be  not  '  due  process  of 

law.' " 

In  its  application  to  proceedings  for  the  levy  and  collection  of 
taxes,  it  was  said  in  McMillen  v.  Anderson,  95  U.  S.  37,  42,  that  it 
"is  not  and  never  has  been,  considered  necessary  to  the  validity  of  a 
'  tax "  "  that  the  party  charged  should  have  been  present,  or  had  an 
opportunity  to  be  present,  in  some  tribunal  when  he  was  assessed." 
This  language,  it  is  true,  was  used  in  the  decision  of  a  case  in  refer- 
ence to  a  license  tax,  where  all  the  circumstances  of  its  assessment 
were  declared  by  statute,  and  nothing  was  intrusted  to  the  discretion 
of  public  officers ;  but,  in  the  State  Railroad  Tax  Cases,  92  U.  S.  575, 
610,  where  the  ascertainment  of  the  taxable  value  of  railroads  was 
the  duty  of  a  board,  as  in  the  present  cases,  whose  assessment  was 
challenged  for  the  reason  that  the  proceeding  was  not  "  due  process 
of  law,"  for  want  of  notice  and  a  hearing,  it  was  said  by  Mr.  Justice 
Miller,  delivering  the  opinion  of  the  court :  "  This  board  has  its  time 
of  sitting  fixed  by  law.  Its  sessions  are  not  secret.  No  obstruction 
exists  to  the  appearance  of  any  one  before  it  to  assert  a  right  or  re- 
dress a  wrong;  and  in  the  business  of  assessing  taxes,  this  is  all  that 
can  be  reasonably  asked." 

In  the  proceedings  questioned  in  these  cases,  there  was,  in  fact  and 
'in  law,  notice  and  a  hearing.     The  railroad  company,  by  its  president 
or  chief  officer,  is  required  by  law,  at  a  specified  time,  to  return  to 
j  the  auditor  of  public  accounts,  under  oath,  a  statement  showing  "  the 
,'  total  length  of  such  railroad,  including  the  length   thereof  beyond 
/  the  limits  of  the  State,  and  designating  its  length  within  this  State, 
\  and  in  each  county,  city,  and  incorporate  town  therein,  together  with 
\  the  average  value  per  mile  thereof,  for  the  purpose  of  being  operated 
l^s  a  carrier  of  freight  and  passengers,  including  engines  and  cars  and 
I  a  list  of  the  depot  grounds  and  improvements  and  other  real  estate 
of  the  said  company,  and  the  value  thereof,  and  the  respective  coun- 
ties, cities,  and  incorporated  towns,  in  which  the  same  are  located. 
That,  if  any  of  said  railroad  companies  owns  or  operates  a  railroad  or 


^  ^^  ^  T  iT 


SECT.  I. 


d.] 


KENTUCKY   RAILROAD    TAX   CASES. 


207 


railroads  out  of  this  State,  but  in  connection  with  its  road  in  this 
State,  the  president  or  chief  officer  of  such  company  shall  only  be  \ 
required  to  return  such  proportion  of  the  entire  value  of  all  its  rolling-  | 
stock  as  the  number  of  miles  of  its  railroad  in  this  State  bears  to  the 
whole  number  of  miles  operated  by  said  company  in  and  out  of  this 
State." 

This  return,  made  by  the  corporation  through  its  officers,  is  the 
statement  of  its  own  case,  in  all  the  particulars  that  enter  into  the 
question  of  the  value  of  its  taxable  property,  and  may  be  verified  and 
fortified  by  such  explanations  and  proofs  as  it  may  see  fit  to  insert-. 
It  is  laid  by  the  auditor  of  public  accounts  before  the  board  of  rail- 
road commissioners,  and  constitutes  the  matter  on  which  they  are  to 
act.  They  are  required  to  meet  for  that  purpose  on  the  first  day  of 
September  in  each  year,  at  the  office  of  the  auditor,  at  the  seat  of 
government,  when  these  returns  are  to  be  submitted  to  them.  The 
statute  declares  that,  "should  the  valuations  ...  be  either  too  high  ,, 
or  too  low,  they  shall  correct  and  equalize  the  same  by  a  proper  in- 
crease or  decrease  thereof.  Said  board  shall  keep  a  record  of  their 
proceedings,  to  be  signed  by  each  member  present  at  any  meeting; 
and  the  said  board  is  hereby  authorized  to  examine  the  books  and 
property  of  any  railroad  company  to  ascertain  the  value  of  its 
property,  or  to  have  them  examined  by  any  suitable  disinterested 
person,  to  be  appointed  by  them  for  that  purpose."  And  in  the  per- 
formance of  these  duties,  their  sessions  are  limited  to  a  period  of  not 
longer  than  twenty  days  in  any  one  year. 

These  meetings  are  public,  and  not  secret.  The  time  and  place  for 
holding  them  are  fixed  by  law.  The  proceedings  of  the  board  are 
required  to  be  made  matter  of  record,  and  authenticated  by  the  signa- 
ture of  the  quorum  present.  Any  one  interested  has  the  right  to  be  ]/ 
present.  In  reference  to  this  point,  the  Court  of  Appeals  of  Ken- 
tucky, in  its  decision  in  these  cases,  says  (81  Ky.  492,  512)  :  "  As  we 
construe  this  act,  although  in  the  nature  of  an  original  assessment, 
the  parties  had  the  right  to  be  heard,  and  were  in  fact  heard  before 
the  board  passing  on  the  question  of  valuation."  It  is  averred,  in  the 
petitions  filed  in  these  actions,  that  ''defendant  did  appear  before 
said  board  by  its  officers,  agents,  and  attorneys,  and  presented  such 
facts,  figures,  and  information,  and  argument  in  relation  to  the  valua- 
tion and  assessment  for  taxation  of  its  said  property,  as  it  saw  proper 
to;"  and  "that  said  board,  after  a  full  hearing  of  defendant  by  her 
officers,  agents,  and  attorneys,  and  a  full  consideration  of  said  re- 
turns, reports,  information,  and  arguments  before  them,  value.d  and 
assessed  for  taxation  "  the  defendant's  line  of  railroad,  &c.  These 
averments  are  not  denied,  but  stand  confessed  in  the  record  of  each 
case. 

It  is  said,  however,  in  answer  to  this,  by  counsel  for  plaintiffs  in 
error,  in  argument,  that  whatever  was  in  fact  this  alleged  hearing,  it 
could  only  have  been  accorded  as  a  matter  of  grace  and  favor,  because 


<^. 


208  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

it  was  not  demandable,  as  of  right,  under  the  law,  and  consequently 
has  no  such  legal  value  as  attaches  to  a  hearing  to  which  the  law 
gives  a  right,  and  to  which  it  compels  the  attention  of  the  officer, 
under  an  imperative  obligation,  with  the  sense  of  official  responsibil- 
ity for  impartial  and  right  decision,  which  is  imputed  to  the  discharge 
of  official  duty. 

But  such  is  not  the  construction  put  upon  the  statute,  as  we  have 
seen,  by  the  Court  of  Appeals  of  the  State,  nor  the  practical  construc- 
tion, as  we  infer  from  the  averments  of  the  pleadings,  put  upon  it  by 
the  officers  called  to  act  under  it.  And  if  the  plaintiffs  in  error  have 
the  constitutional  right  to  such  hearing,  for  which  they  contend,  the 
statute  is  properly  to  be  construed  so  as  to  recognize  and  respect  it, 
and  not  to  deny  it.  The  constitution  and  the  statute  will  be  con- 
strued together  as  one  law.  This  was  the  principle  of  construction 
applied  by  this  court,  following  the  decisions  of  the  State  court,  in 
Neal  V.  Delaware,  103  U.  S.  370,  where  words,  denying  the  right, 
were  regarded  as  stricken  out  of  the  State  constitution  and  statutes, 
by  the  controlling  language  of  the  Constitution  of  the  United  States ; 
and  in  the  case  of  Cooper  v.  The  Wandsworth  Board  of  Works,  14 
C.  B.  N.  S.  180,  in  a  case  where  a  hearing  w^as  deemed  essential,  it 
was  said  by  Byles,  J.,  "that,  although  there  are  no  positive  words  in  a 
[statute  requiring  that  the  party  shall  be  heard,  yet  the  justice  of  the 
common  law  will  supply  the  omission  of  the  legislature."     p.  191. 

It  is  still  urged,  however,  that  there  is,  notwithstanding  what  has 
been  said,  no  security  that  the  final  action  of  the  board  of  railroad 
commissioners,  in  valuing  and  assessing  railroad  property  under  this 
statute,  may  not  be  unequal,  unjust  and  oppressive,  and  that  either 
by  error  of  judgment,  through  caprice,  prejudice,  or  even  from  an 
intention  to  oppress,  valuations  may  be  made  which  are  excessive, 
bearing  no  reasonable  relation  to  what   is  fair  and  just,  and  fixed 
arbitrarily,  based  neither  upon  actual  evidence  nor  an  honest  estimate. 
/-But  the  same  suppositions  may  be  indulged  in,  in  opposition  to  all 
I   contrary  presumptions,    with  reference  to  the   final    action  of   any 
1  tribunal  appointed  to  determine  the  matter,  however  carefully  con- 
stituted, and  however  carefully  guarded  in  its  procedure,  and  whether 
\  judicial  or  administrative.     Such  possibilities  are  but  the  necessary 
imperfections  of  all  human  institutions,  and  do  not  admit  of  remedy ; 
at  least  no  revisory  power  to  prevent  or  redress  them  enters  into  the 
judicial  system,  for,  by  the  supposition,  its  administration  is  itself 
subject  to  the  same  imperfections. 

But  whatever  relief  courts  of  justice  may  afford  against  the  injuries 
apprehended,  when  in  fact  they  have  resulted,  is  secured  to  the  plain- 
tiffs in  error  by  the  very  statute  of  which  they  complain.  For  the 
valuation  of  railroad  property,  under  that  act,  and  the  assessment  of 
the  taxes  thereon,  are  not  final,  in  the  sense  that  they  constitute  a 
charge  upon  the  property  subject  to  the  tax,  or  a  liability  fixed  upon 
the  corporation  owning  it.     That  result  can  be  attained,  and  the  tax 


SECT.  I. 


d.] 


KENTUCKY    RAILROAD    TAX    CASES. 


209 


actually  collected,  only  by  sui^;,  as  provided  in  the  fifth  section  of  the 
statute,  either  against  the  officers  of  the  companies  for  penalties  in- 
curred by  a  failure  to  pay  the  taxes  levied,  or  for  the  recovery  of  the 
taxes  themselves,  by  action  in  the  Franklin  Circuit  Court,  or  in  the 
courts  having  jurisdiction  in  the  counties,  for  the  taxes  payable  to 
them  respectively.  The  case  is  thus  brought  directly  and  distinctly 
within  the  decision  in  Davidson  v.  New  Orleans,  96  U.  S.  97,  104, 
where  it  was  held,  ''  that,  whenever  by  the  laws  of  a  State,  or  by 
State  authority,  a  tax,  assessment,  servitude,  or  other  burden  is 
imposed  upon  property  for  the  public  use,  whether  it  be  of  the  whole 
State,  or  of  some  more  limited  portion  of  the  community,  and  those 
laws  provide  for  a  mode  of  confirming  or  contesting  the  charge  thus 
imposed,  in  the  ordinary  courts  of  justice,  with  such  notice  to  the 
person,  or  such  proceeding  in  regard  to  the  property  as  is  appropriate 
to  the  nature  of  the  case,  the  judgment  in  such  proceedings  cannotX 
be  said  to  deprive  the  owner  of  his  property  without  due  pi'ocess  of  J 
law,  however  obnoxious  it  may  be  to  other  objections."  And  this  is 
the  principle  that  was  followed  in  the  subsequent  case  of  Hagar  v. 
Reclamation  District,  111  U.  S.  701.  In  that  case,  the  statute  of 
California,  which  conferred  the  jurisdiction,  authorized  any  defence, 
going  either  to  the  validity  or  to  the  amount  of  the  tax  assessed,  to 
be  pleaded.  What  inquiries  may  be  permitted  in  such  cases,  of 
course,  is  a  matter  that  depends  upon  the  particular  provisions  of  the 
law  of  the  jurisdiction.  -In  the  absence  of  such  provisions,  and  as  a 
principle  of  general  jurisprudence,  it  is  safe  to  say,  that  any  defence 
is  admissible  which  establishes  the  illegality  of  the  proceeding  result- 
ing in  the  alleged  assessment,  whether  because  it  is  in  violation  of 
the  local  law  which  is  relied  on  as  conferring  the  authority  upon 
which  it  is  based,  or  because  it  constitutes  a  denial  of  a  right  secured 
to  the  party  complaining  by  the  Constitution  of  the  United  States. 
The  judgments  now  under  review  were  rendered  in  just  such  actions, 
so  that  we  cannot  escape  the  conclusion  that  there  is  no  ground  for 
the  plaintiffs  in  error  to  contend  that  they  have  been  rendered  with- 
out due  process  of  law. 

The  plaintiffs  in  error,  however,  did  interpose  a  defence  below, 
legitimate  in  itself,  and  arising  under  the  Constitution  of  the  United 
States,  namely,  that  in  the  proceedings  of  the  board  of  railroad  com- 
missioners, resulting  in  the  valuation  and  assessment,  under  the  act 
of  April  3,  1878,  they  were  severall}^  denied  the  equal  protection 
the  laws,  contrary  to  the  Fourteenth  Amendment  totlie  Constitution 
As  this  defence  was  overruled  by  the  Court  of  Appeals  of  Keiitueky, 
another  Federal  question  is  presented  which  we  are  bound  now  to 
examine  and  decide. 

The  discrimination  against  railroad  companies  and  their  property, 
which  is  the  subject  of  complaint,  as  being  unjust  and  unconstitu-, 
tional,  arises  from  the  fact  that,  in  the  legislation  of  Kentucky  on 
the  subject,  railroad  property,  though  called  real  estate,  is  classed  by.' 

li 


210  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

/  itself  as  distinct  from  other  real  estate,  such  as  farms  and  city  lots, 
(  and  subjected  to  different  means  and  methods  for  ascertaining  its 
\  value   for   purposes  of  taxation,    and  differing  as    well    from  those 
\  applied  to  the   property  of   corporations    chartered   for    other  pur- 
poses, such  as  bridge,  mining,  street  railway,  manufacturing,  gas  and 
'water  companies.     These  latter  report  to  the  auditor  the  total  cash 
value  of  their  property,  and  pay  into  the  treasury  as  a  tax  upon  each 
$100  of  its  value,  a  sum  equal  to  the  tax  collected  upon  the  same 
value  of  real  estate ;  and  their  reports  and  valuations  are  treated  as 
complete  and  perfect  assessments,  not  subject  to  revision   by  any 
board  or  court,  and  conclusive  upon  the  taxing  officers. 

But  there  is  nothing  in  the  constitution  of  jKentuck^^  that  requires 
/taxes  to  be  levied  by  a  uniform   method  upon  all  descriptions  of 
I  property.     The  whole  matter  is  left  to  the  discretion  of  the  legisla- 
j  tive  power,  and  there  is  nothing  to  forbid  the  classification  of  property 
]  for  purposes  of  taxation  and  the  valuation  of  different  classes  by 
different  methods.     The  rule  of  equality,  in  respect  to  the  subject, 
only  requires  the  same  means  and  methods  to  be  applied  impartially 
to  all  the  constituents  of  each  class,  so  that  the  law  shall  operate 
equally  and  uniformly  upon  all   persons   in   similar   circumstances. 
There  is  no  objection,  therefore,  to  the  discrimination  made  as  be- 
tween railroad  companies  and  other  corporations  in  the  methods  and 
instrumentalities  by  which  the  value  of  their  property  is  ascertained. 
The  different  nature  and  uses  of  their  property  justify  the  discrimina- 
tion in  this  respect  which  the  discretion  of  the  legislature  has  seen 
lit  to  impose. 

So,  the  fact  that  the  legislature  has  chosen  to  call  a  railroad,  for 
purposes  of  taxation,  real  estate  does  not  identify  it  with  farming 
lands  and  town  lots,  in  such  a  sense  as  imperatively  to  recpiire  the 
employment  of  the  same  machinery  and  methods  for  all,  in  the  pro- 
cess of  valuation  for  purposes  of  taxation.  Calling  them  by  the  same 
name  does  not  obliterate  the  essential  differences  between  them,  and 
accordingly  it  is  not  insisted  on  in  argument,  as  an  objection  to  the 
system  that  a  railroad  running  through  several  counties  is  valued  and 
taxed  as  a  unit  and  by  a  special  board  organized  for  that  purpose, 
Avhile  other  real  estate  is  valued  in  each  county  by  assessors.  The 
final  point  of  objection  seems  to  be  reduced  to  this.  In  the  case  of 
/'ordinary  real  estate,  it  is  said,  when  the  assessor  has  made  his  valua- 
'i  tion,  it  is  submitted  to  the  board  of  supervisors,  who  may  change  the 
;  valuation,  but  not  so  as  to  increase  it,  without  notice  to  the  tax-payer, 
and  an  opportunity  for  a  formal  hearing  upon  testimony  to  be  adduced 
under  oath,  and  with  a  right  of  appeal  on  his  part,  first,  to  a  county 
judge,  and,  again,  if  the  amount  of  the  tax  is  equal  to  fifty  dollars,  to 
the  Circuit  Court.  This  is  contrasted  with  the  proceeding  in  the 
case  of  railroad  property  before  the  board  of  railroad  commissioners, 
in  which  it  is  alleged  there  is  no  notice  of  an  intended  change  in  the 
;  valuation  returned  by  the  company,  and  no  appeal  allowed  if  it  is 

increased. 

\ 


SECT.  I.  d.]  KELLY    V.   PITTSBURGH.  211 

The  discrimination,  however,  is  apparent  rather  than  real.  An  ex-\ 
aminatiou  of  the  statutes  shows,  that  the  original  valuation  of  the  ■ 
assessor,  in  case  of  ordinary  real  estate,  is  conclusive  upon  the  tax- 
payer, r^o  matter  how  unsatisfactory ;  and  the  appeal  allowed  is  only 
from  the  action  of  the  board  of  supervisors  in  case  they  undertake  to 
increase  the  valuation  made  by  the  assessor.  But  in  the  case  of 
railroad  property,  no  board  has  authority  to  increase  the  original 
assessment  made  by  the  railroad  commissioners,  and  there  is,  there- 
fore, no  case  for  an  appeal  similar  to  that  of  the  owner  of  ordinary 
real  estate. 

But  were  it  otherwise,  the  objection  would  not  be  tenable.  We  , 
have  already  decided  that  the  mode  of  valuing  railroad  property  for 
taxation  under  this  statute  is  due  process  of  law.  That  being  so,  thei 
provision  securing  the  equal  protection  of  the  laws  does  not  require,! 
in  any  case,  an  appeal,  although  it  may  be  allowed  in  respect  to  other' 
persons,  differently  situated.  This  was  expressly  decided  by  this 
court  in  the  case  of  IMissouri  v.  Lewis,  101  U.  S.  22,  30.  It  was  there 
said  by  Mr.  Justice  Bradley,  delivering  the  opinion  of  the  court 
and  speaking  to  this  point,  that,  '*  the  last  restriction,  as  to  the  equal 
protection  of  the  laws,  is  not  violated  by  any  diversity  in  the  juris- 
diction of  the  several  courts  as  to  subject-matter,  amount,  or  finality 
of  decision,  if  all  persons  within  the  territorial  limits  of  their  respec- 
tive juisdictions  have  an  equal  right,  in  like  cases  and  under  like  cir- 
cumstances, to  resort  to  them  for  redress."  The  right  to  classify  rail- 
road property,  as  a  separate  class,  for  purposes  of  taxation,  grows  out 
of  the  inherent  nature  of  the  property,  and  the  discretion  vested  by 
the  constitution  of  the  State  in  its  legislature,  and  necessarily  in- 
volves the  right,  on  its  part,  to  devise  and  carry  into  effect  a  distinct 
scheme,  with  different  tribunals,  in  the  proceeding  to  value  it.  If 
such  a  scheme  is  due  process  of  law,  the  details  in  which  it  differs 
from  the  mode  of  valuing  other  descriptions  and  classes  of  property 
cannot  be  considered  as  a  denial  of  the  equal  protection  of  the  laws. 

We  see  no  error  in  the  several  judgments  of  the  Court  of  Appeals 
of  Kentucky  in  these  cases,  and  they  are  accordingly 

Affirmed. 


KELLY  V.  PITTSBURGH. 

104  Uuited  States,  78.     ISSl. 

Error  to  the  Supreme  Court  of  the  State  of  Pennsylvania. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  James  Kelly,  is  the  owner  of  eighty  acres  of 
land,  which,  prior  to  the  year  1867,  was  a  part  of  the  township  of 
Collins,  in  the  county  of  Alleghany  and  State  of  Pennsylvania.     In 


212  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

that  year  the  legislature  passed  an  act  by  virtue  of  which,  and  the 
subsequent  proceedings  under  it,  this  township  became  a  part  of  the 
city  of  Pittsburgh.  Tiie  authorities  of  the  city  assessed  the  land  for 
the  taxes  of  the  year  1874:  at  a  sum  which  he  asserts  is  enormously 
beyond  its  value,  and  almost  destructive  cf  his  interest  in  the  prop- 
erty. They  are  divisible  into  two  classes ;  namely,  those  assessed 
for  State  and  county  purposes  by  the  county  of  Alleghany,  within 
which  Pittsburgh  is  situated,  and  those  assessed  by  the  city  for  city 
purposes. 

Kelly  took  an  appeal,  allowed  by  the  laws  of  Pennsylvania,  from  the 
original  assessment  of  taxes  to  a  board  of  revision,  but  with  what 
success  does  not  distinctly  appear.  The  result,  however,  was  unsatis- 
factory to  him,  and  he  brought  suit  in  the  Court  of  Common  Plen.s  to 
restrain  the  city  from  collecting  the  tax.  That  court  dismissed  the 
bill,  and  the  decree  having  been  affirmed  on  appeal  by  the  Supreme 
Court,  he  sued  out  this  writ  of  error. 

The  transcript  of  the  record  is  accompanied  by  seven  assignments 
of  error.  All  of  them  except  two  have  reference  to  matters  of  which 
this  court  has  no  jurisdiction.  Those  two,  however,  assail  the  decree 
on  the  ground  that  it  violates  rights  guaranteed  by  the  Constitution 
of  the  United  States.  As  the  same  points  were  relied  on  in  the 
Supreme  Court  of  the  State,  it  becomes  our  duty  to  inquire  whether 
they  are  well  founded.     They  are  as  follows :  — 

First,  The  Supreme  Court  of  Pennsylvania  erred  in  sustaining  the 
authority  of  the  city  of  Pittsburgh  to  assess  and  collect  taxes  from 
complainant's  farm  lands  for  municipal  or  city  purposes,  such  exer- 
cise of  the  taxing  power  being  a  violation  of  rights  guaranteed  to 
him  by  article  5  of  amendments  to  the  Constitution  of  the  United 
States. 

Second,  The  Supreme  Court  of  Pennsylvania  erred  in  sustaining 
the  authority  of  the  city  of  Pittsburgh  to  assess  and  collect  taxes  from 
complainant's  farm  lands  for  municipal  or  city  purposes,  such  exer- 
cise of  the  taxing  power  being  a  violation  of  rights  guaranteed  to  him 
by  art.  14,  sect.  1,  of  the  amendments  to  the  Constitution  of  the 
United  States. 

As  regards  the  effect  of  the  fifth  amendment  of  the  Constitution,  it 
has  always  been  held  to  be  a  restriction  upon  the  powers  of  the  Fed- 
eral government,  and  to  have  no  reference  to  the  exercise  of  such 
powers  by  the  State  governments.  See  Withers  v.  Buckley,  20  How. 
8-4;  Davidson  v.  New  Orleans,  96  U.  S.  97.  We  need,  therefore,  give 
the  first  assignment  no  further  consideration.  But  this  is  not  ma- 
terial, as  the  provision  of  sect.  1,  art.  14,  of  the  amendments  relied 
on  in  the  second  assignment  contains  a  prohibition  on  the  power  of  the 
States  in  language  almost  identical  with  that  of  the  fifth  amendment. 
That  language  is  that  "  no  State  shall  .  .  .  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law." 

The    main   argument  for  the   plaintiff  in  error  —  the  only  one  to 


J 


SECT.  I.  d.]  KELLY    V.   PITTSBURGH.  213 

which  we  can  listen  —  is  that  the  proceeding  in  regard  to  the  taxes 
assessed  on  his  land  deprives  him  of  his  property  without  due  process 
of  Law. 

It  is  not  asserted  that  in  the  methods  by  which  the  value  of  his 
land  was  ascertained  for  the  purpose  of  this  taxation  there  was  any 
departure  from  the  usual  modes  of  assessment,  nor  that  the  manner 
of  apportioning  and  collecting  the  tax  was  unusual  or  materially  dif- 
ferent from  that  in  force  in  all  communities  where  land  is  subject  to 
taxation.  In  these  respects  there  is  no  charge  that  the  method  pur- 
sued is  not  due  process  of  law.  Taxes  have  not,  as  a  general  rule,  in 
this  country  since  its  independence,  nor  in  England  before  that  time, 
been  collected  by  regular  judicial  proceedir.gs.  The  necessities  of 
government,  the  nature  of  the  duty  to  be  performed,  and  the  custom- 
ary usages  of  the  people,  have  established  a  different  procedure, 
which,  in  regard  to  that  matter,  is,  and  always  has  been,  due  process 
of  law. 

The  tax  in  question  was  assessed,  and  the  proper  officers  were  pro- 
ceeding to  collect  it  in  this  way. 

The  distinct  ground  on  which  this  provision  of  the  Constitution  of 
th-e  United  States  is  invoked  is,  that  as  the  land  in  question  is,  and 
always  has  been,  used  as  farm  land,  for  agricultural  use  only,  sub- 
jecting it  to  taxation  for  ordinary  city  purposes  deprives  the  plaintiff 
in  error  of  his  property  without  due  process  of  law.  It  is  alleged, 
and  probably  with  truth,  that  the  estimate  of  the  value  of  the  land 
for  taxation  is  very  greatly  in  excess  of  its  true  value.  Whether 
this  be  true  or  not  we  cannot  here  inquire.  We  have  so  often  de- 
cided that  we  cannot  review  and  correct  the  errors  and  mistakes  of 
the  State  tribunals  on  that  subject,  that  it  is  only  necessary  to  refer 
to  those  decisions  without  a  restatement  of  the  argument  on  which 
they  rest.  State  Kailroad  Tax  Cases,  92  U.  S.  575 ;  Kennard  v. 
Louisiana,  Id.  480  ;  Davidson  v.  New  Orleans,  96  Id.  97 ;  Kirtland  v. 
Hotchkiss,  100  Id.  491;  Missouri  v.  Lewis,  101  Id.  22;  National 
Bank  v.  Kimball,  103  Id.  732. 

But,  passing  from  the  question  of  the  administration  of  the  law  of 
Pennsylvania  by  her  authorities,  the  argument  is,  that  in  the  matter 
already  mentioned  the  law  itself  is  in  conflict  with  the  Constitution. 

It  is  not  denied  that  the  Legislatiire  could  rightfully  enlarge  the 
boundary  of  the  city  of  Pittsburgh  so  as  to  include  the  land.  If  this 
power  were  denied,  we  are  unable  to  see  how  such  denial  could  be 
sustained.  What  portion  of  a  State  shall  be  within  the  limits  of  a 
city  and  be  governed  by  its  authorities  and  its  laws  has  always  been 
considered  to  be  a  proper  subject  of  legislation.  How  thickly  or 
how  sparsely  the  territory  within  a  city  must  be  settled  is  one  of 
the  matters  within  legislative  discretion.  W^hether  territory  shall 
be  governed  for  local  purposes  by  a  county,  a  city,  or  a  township 
organization,  is  one  of  the  most  usual  and  ordinary  subjects  of  State 
legislation. 


214  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

It  is  urged,  however,  with  much  force,  that  laud  of  this  character, 
•which  its  owner  has  not  laid  off  into  town  lots,  but  insists  on  using 
for  agricultural  purposes,  and  through  which  no  streets  are  run  or 
used,  cannot  be,  even  by  the  Legislature,  subjected  to  the  taxes  of  a 
citj',  —  the  water  tax,  the  gas  tax,  the  street  tax,  and  others  of  similar 
character.  .The  reason  for  this  is  said  to  be  that  such  taxes  are  for 
the  benefit  of  those  in  a  city  who  own  property  within  the  limits 
of  such  improvements,  and  who  use  or  might  use  them  if  they 
chose,  while  he  reaps  no  such  benefit.  Cases  are  cited  from  the 
higher  courts  of  Kentucky  and  Iowa  where  this  principle  is  asserted, 
and  where  those  courts  have  held  that  farm  lands  in  a  city  are  not 
subject  to  the  ordinary  city  taxes. 

It  is  no  part  of  our  duty  to  inquire  into  the  grovmds  on  which  those 
courts  have  so  decided.  They  are  questions  which  arise  between  the 
citizens  of  those  States  and  their  own  city  authorities,  and  afford  no 
rule  for  construing  the  Constitution  of  the  United  States. 

We  are  also  referred  to  the  case  of  Loan  Association  v.  Topeka, 
20  Wall.  655,  which  asserts  the  doctrine  that  taxation,  though  sanc- 
tioned by  State  statutes,  if  it  be  not  for  a  public  use,  is  an  unauthorized 
taking  of  private  property. 

We  are  unable  to  see  that  the  taxes  levied  on  this  property  were 
not  for  a  public  use.  Taxes  for  schools,  for  the  support  of  the  poor, 
for  protection  against  fire,  and  for  water-works,  are  the  specified  taxes 
found  in  the  list  complained  of.  We  think  it  will  not  be  denied  by 
any  one  that  these  are  public  purposes  in  which  the  whole  community 
have  an  interest,  and  for  which,  by  common  consent,  property  owners 
everywhere  in  this  country  are  taxed. 

There  are  items  styled  city  tax  and  city  biiildings,  which,  in  the 
absence  of  au}^  explanation,  we  must  suppose  to  be  for  the  good 
government  of  the  city,  and  for  the  construction  of  such  buildings  as 
are  necessary  for  municipal  purposes.  Surely  these  are  all  public 
purposes ;  and  the  money  so  to  be  raised  is  for  public  use.  Xo  item 
of  the  tax  assessed  against  the  plaintiff  in  error  is  pointed  out  as 
intended  for  any  other  than  a  public  use. 

It  may  be  true  that  he  does  not  receive  the  same  amount  of  benefit 
from  some  or  any  of  these  taxes  as  do  citizens  living  in  the  heart  of 
the  city.  It  probably  is  true,  from  the  evidence  found  in  this  record, 
that  his  tax  bears  a  very  unjust  relation  to  the  benefits  received  as 
compared  with  its  amount.  But  who  can  adjust  with  precise  accuracy 
the  amount  which  each  individual  in  an  organized  civil  coiumunity 
shall  contribute  to  sustain  it,  or  can  insure  in  this  respect  absolute 
equality  of  burdens,  and  fairness  in  their  distribution  among  those 
who  must  bear  them  ? 

We  cannot  say  judicially  that  Kelly  received  no  benefit  from  the 
city  organization.  These  streets,  if  they  do  not  penetrate  his  farm, 
lead  to  it.  The  water-works  will  probably  reach  him  some  day,  and 
may  be  near  enough  to  him  now  to  serve  him  on  some  occasion.     The 


SECT.    I.    d.]       FRENCH    V.    BARBER    ASPHALT    PAVING    COMPANY.         215 

schools  may  receive  his  children,  and  in  this  regard  he  can  be  in  no 
worse  condition  than  those  living  in  the  city  who  have  no  children, 
and  yet  who  pay  for  the  support  of  the  schools.  Every  man  in  a 
county,  a  town,  a  city,  or  a  State  is  deeply  interested  in  the  education 
of  the  children  of  the  community,  because  his  peace  and  quiet,  his 
happiness  and  prosperity,  are  largely  dependent  upon  the  intelligence 
and  moral  training  which  it  is  the  object  of  public  schools  to  sup- 
ply to  the  children  of  his  neighbors  and  associates,  if  he  has  none 
himself. 

The  officers  whose  duty  it  is  to  punish  and  prevent  crime  are  paid 
out  of  the  taxes.  Has  he  no  interest  in  maintaining  them,  because 
he  lives  further  from  the  court-house  and  police-station  than  some 
others  ? 

Clearly,  however,  these  are  matters  of  detail  within  the  discretion, 
and  therefore  the  power,  of  the  law-making  body  within  whose  juris- 
diction the  parties  live.  This  court  cannot  say  in  such  cases,  however 
great  the  hardship  or  unequal  the  burden,  that  the  tax  collected  for 
such  purposes  is  taking  the  property  of  the  taxpayer  without  due 
process  of  law. 

.These  views  have  heretofore  been  announced  by  this  court  in  the 
cases  which  have  been  cited,  and  in  McMillen  v.  Anderson.  95  U.  S.  37. 

In  the  case  of  Davidson  v.  New  Orleans,  96  U.  S.  97,  the  w^hole  of 
this  subject  was  very  fully  considered,  and  we  think  it  is  decisive  of 
the  one  before  us.  Decree  affirmed. 


FRENCH   V.   BARBER  ASPHALT   PAVING  COMPANY. 

181  U.  S.  321;  21  Sup.  Ct.  Rep.  625.     1901. 

[This  was  a  suit  in  a  court  of  Missouri  by  the  Barber  Asphalt  pav- 
ing Co.  against  owners  of  lots  in  Kansas  City  to  enforce  the  lien  on  a 
tax  bill  issued  by  that  city  in  part  payment  of  the  cost  of  paving  the 
street  on  which  said  lots  abutted.  In  accordance  with  the  provisions 
of  the  Kansas  City  charter  the  cost  of  the  pavement  had  been  appor- 
tioned and  charged  against  the  lots  fronting  thereon  according  to  the 
frontage  of  the  several  lots  abutting  on  the  improvement,  the  charge 
against  each  lot  being  represented  by  a  tax  bill,  made  a  lien  upon  the 
lot  and  prima  facie  evidence  of  the  validity  of  the  charge,  such  lien  to 
be  enforced  by  suit  in  a  court  against  the  owner  of  the  lot,  without 
liability  to  personal  judgment.  The  lot  owners  contended  in  the  trial 
court  that  the  provisions  of  the  Kansas  City  charter  authorizing  the 
cost  of  paving  to  be  charged  upon  abutting  property  according  to  the 
frontage  without  reference  to  any  benefits  to  the  property  on  which 
the  charge  was  made  was  in  violation  of  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States.     The  trial  court  upheld  the 


216  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.    IV. 

assessment  and  on  appeal  the  Supreme  Court  of  the  State  decided  that 
the  assessment  was  in  accordance  with  the  laws  of  Missouri  and  not 
in  violation  of  the  provisions  of  the  Fourteenth  Amendment.  The 
plaintiff  in  error,  one  of  the  lot  owners,  appealed  from  this  decision 
contending  that  the  assessment  was  in  violation  of  "due  process  of 
law  "  guaranteed  by  the  Fourteenth  Amendment.] 

Mk.  Justice  Shiras  delivered  the  opinion  of  the  court. 

The  question  thus  raised  has  been  so  often  and  so  carefully  dis- 
cussed, both  in  the  decisions  of  this  court  and  of  the  State  courts,  that 
we  do  not  deem  it  necessary  to  again  enter  upon  a  consideration  of 
the  nature  and  extent  of  the  taxing  power,  nor  to  attempt  to  discover 
and  define  the  limitations  upon  that  power  that  may  be  found  in  con- 
stitutional principles.  It  will  be  sufficient  for  our  present  purpose  to 
collate  our  previous  decisions  and  to  apply  the  conclusions  reached 
therein  to  the  pi-esent  case. 

It  may  prevent  confusion,  and  relieve  from  repetition,  if  we  point 
out  that  some  of  our  cases  arose  under  the  provisions  of  the  Fifth  and 
others  under  those  of  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States.  While  the  language  of  those  amendments  is 
the  same,  yet  as  they  were  engrafted  upon  the  Constitution  at  differ- 
ent times  and  in  widely  different  circumstances  of  our  national  life, 
it  may  be  that  questions  may  arise  in  which  different  constructions 
and  applications  of  their  provisions  may  be  proper.  Slaughter-House 
Cases,  16  Wall.  36,  77,  80.     [18] 

[After  quoting  from  Davidson  v.  New  Orleans,  96  U.  S.  97, 103,  the 
opinion  continues.] 

However,  we  shall  not  attempt  to  define  what  it  is  for  a  State  to 
deprive  a  person  of  life,  liberty,  or  property  without  due  process  of 
law,  in  terms  which  would  cover  every  exercise  of  power  thus  for- 
bidden to  the  State,  and  exclude  those  which  are  not,  but  shall  pro- 
ceed, in  the  present  case,  on  the  assumption  that  the  legal  import  of 
the  phrase  "due  process  of  law,"  is  the  same  in  both  Amendments. 
Certainly,  it  cannot  be  supposed  that,  by  the  Fourteenth  Amendment, 
it  was  intended  to  impose  on  the  States,  when  exercising  their  powers 
of  taxation,  any  more  rigid  or  stricter  curb  than  that  imposed  on  the 
Federal  government,  in  a  similar  exercise  of  power,  by  the  Fifth 
Amendment. 

Let  us,  then,  inquire,  as  briefly  as  possible,  what  has  been  decided 
by  this  court  as  to  the  scope  and  effect  of  the  phrase  "due  process  of 
law,"  as  applied  to  legislative  power. 

[Various  other  cases  relating  to  the  meaning  of  the  term  "due 
process  of  law"  are  then  cited  with  quotations  from  the  opinions  and 
the  opinion  continues.] 

In  ^Nlattingly  v.  District  of  Columbia,  97  U.  S.  687,  692,  there  was 
called  in  question  the  validity  of  the  act  of  Congress  of  June  19, 
1878,  20  Stat.  166,  c.  309,  entitled  "  An  act  to  provide  for  the  revi- 


SECT.    I.    d.]       FRENCH    V.    BARBER    ASPHALT   PAVING    COMPANY.        217 

sion  and  correction  of  assessments  for  special  improvements  in  the 
District  of  Columbia  and  for  other  purposes,"  and  it  was  said  by  tliis 
court,  through  jNIr,  Justice  Strong :  "  It  may  be  that  the  burden  laid 
upon  the  property  of  the  complainants  is  onerous.  Special  assess- 
ments for  special  road  or  street  iniprovements  very  often  are  oppres- 
sive. But  that  the  legislative  power  may  authorize  them,  and  may 
direct  them  to  be  made  in  proportion  to  the  frontage,  area,  or  market 
value  of  the  adjoining  property,  at  its  discretion,  is,  under  the  deci- 
sions, no  longer  an  open  question." 

[After  a  quotation  from  Kelly  v.  Pittsburg,  104  U.  S.  78  [211]  the 
opinion  continues.] 

In  Spencer  v.  Merchant,  125  U.  S.  345,  a  judgment  of  the  Court  of 
Appeals  of  the  State  of  New  York,  upholding  the  validity  of  an 
assessment  upon  lands  to  cover  the  expense  of  a  local  improvement, 
was  brought  to  this  court  for  review  upon  the  allegation  that  the 
State  statute  was  unconstitutional. 

[After  quoting  from  the  opinion  of  the  New  York  Court  of  Appeals 
the  opinion  continues.] 

This  definition  of  legislative  power  was  approved  by  this  court,  and 
the  judgment  of  the  Court  of  Appeals  was  affirmed.  The  following 
extract  is  from  the  opinion  of  this  court : 

"  In  the  absence  of  any  more  specific  constitutional  restriction  than 
the  general  prohibition  against  taking  property  without  due  process 
of  law,  the  legislature  of  the  State,  having  the  power  to  fix  the  sum 
necessary  to  be  levied  for  the  expense  of  a  public  improvement,  and 
to  order  it  to  be  assessed,  either,  like  other  taxes,  upon  property 
generally,  or  only  upon  the  lands  benefited  by  the  improvement,  is 
authorized  to  determine  both  the  amount  of  the  whole  tax,  and  the 
class  of  lands  which  will  receive  the  benefit  and  should  therefore 
bear  the  burden,  although  it  may,  if  it  sees  fit,  commit  the  ascer- 
tainment of  either  or  both  of  these  facts  to  the  judgment  of  commis- 
sioners. When  the  determination  of  the  lands  to  be  benefited  is 
entrusted  to  commissioners,  the  owners  may  be  entitled  to  notice  and 
hearing  upon  the  question  whether  their  lands  are  benefited  and  how 
much.  But  the  legislature  has  the  power  to  determine,  by  the  statute 
imposing  the  tax,  what  lands,  which  might  be  benefited  by  the  im- 
provement, are  in  fact  benefited ;  and  if  it  does  so,  its  determination 
is  conclusive  upon  the  owners  and  the  courts,  and  the  owners  have 
no  right  to  be  heard  upon  the  question  whether  their  lands  are  bene- 
fited or  not,  but  only  upon  the  validity  of  the  assessment,  and  its 
apportionment  among  the  different  parcels  of  the  class  which  the 
legislature  has  conclusively  determined  to  be  benefited.  In  deter- 
mining what  lands  are  benefited  by  the  improvement,  the  legislature 
may  avail  itself  of  such  information  as  it  deems  sufficient,  either 
through  investigations  by  its  committees,  or  by  adopting  as  its  own 
the  estimates  or  conclusions  of  others,  whether  those  estimates  or 
conclusions  previously  had  or  had  not  any  legal  sanction." 


218  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.    IV. 

[After  citation  of  other  cases  the  opinion  continues.] 
In  Bauman  v.  Ross,  167  U.  S.  548,  on  appeal  from  the  Court  of 
Appeals  of  the  District  of  Columbia,  it  was  held  that  Congress  may 
direct  that,  when  part  of  a  parcel  of  land  is  appropriated  to  the  public 
use  for  a  highway  in  the  District  of  Columbia,  the  tribunal  vested  by 
law  with  the  duty  of  assessing  the  compensation  or  damages  due  to 
the  owner,  whether  for  the  value  of  the  part  taken,  or  for  any  injury 
to  the  rest,  shall  take  into  consideration,  by  way  of  lessening  the 
whole  or  either  part  of  the  sum  due  him,  any  special  and  direct  bene- 
fits, capable  of  present  estimate  and  reasonable  computation,  caused 
by  the  establishment  of  the  highway  to  the  part  not  taken;  that  the 
estimate  of  the  just  compensation  for  property  taken  for  the  public 
use,  under  the  right  of  eminent  domain,  is  not  required  to  be  made 
by  a  jury,  but  may  be  entrusted  to  commissioners  appointed  by  a 
court,  or  to  an  inquest  consisting  of  more  or  fewer  men  than  an  ordi- 
nary jury;  that  Congress,  in  the  exercise  of  the  right  of  taxation  in 
the  District  of  Columbia,  may  direct  that  half  of  the  amount  of  the 
compensation  or  damages  awarded  to  the  owners  of  lands  appropriated 
to  the  public  use  for  a  highway  shall  be  assessed  and  charged  upon 
the  District  of  Columbia,  and  the  other  half  upon  the  lands  benefited 
thereby  within  the  District,  in  proportion  to  the  benefit;  and  may 
commit  the  ascertainment  of  the  lands  to  be  assessed,  and  the  appor- 
tionment of  the  benefits  among  them,  to  the  same  tribunal  which 
assesses  the  compensation  or  damages  ;  that  if  the  legislature  in  tax- 
ing lands  benefited  by  a  highway,  or  other  public  improvement,  makes 
provision  for  notice,  by  publication  or  otherwise,  to  each  owner  of 
land,  and  for  hearing  him,  at  some  state  of  the  proceedings,  upon  the 
question  what  proportion  of  the  tax  shall  be  assessed  upon  his  land, 
his  property  is  not  taken  without  due  process  of  law. 

In  the  opinion  of  the  court  in  that  case,  delivered  by  Mr.  Justice 
Gray,  it  was  said  that  the  provisions  of  the  statute  under  considera- 
tion, which  regulated  the  assessment  of  damages,  are  to  be  referred, 
not  to  the  right  of  eminent  domain,  but  to  the  right  of  taxation,  and 
that  the  legislature,  in  the  exercise  of  the  right  of  taxation,  has  the 
authority  to  direct  the  whole  or  such  part  as  it  may  prescribe,  of  the 
expense  of  a  public  improvement,  such  as  the  establishing,  the  widen- 
ing, the  grading,  or  the  repair  of  a  street,  to  be  assessed  upon  the 
owners  of  lands  benefited  thereby;  and  that  such  authority  has 
been  repeatedly  exercised  in  the  District  of  Columbia  by  Congress, 
with  the  sanction  of  this  court  — citing  Willard  v.  Presbury,  14  Wall. 
676 ;  Mattingly  v.  District  of  Columbia,  97  U.  S.  687 ;  Shoemaker  v. 
United  States,  147  U.  S.  282,  302.  It  was  also  said  that  the  class  of 
lands  to  be  assessed  for  the  purpose  may  be  either  determined  by  the 
legislature  itself,  by  defining  a  territorial  district,  or  by  other  desig- 
nation ;  or  it  may  be  left  by  the  legislature  to  the  determination  of 
commissioners,  and  be  made  to  consist  of  such  lands,  and  such  only, 
as  the  commissioners  shall  decide  to  be  benefited ;  that  the  rule  of 


SECT.    I.    d.]      FRENCH    V.    BARBER   ASPHALT    PAVING    COMPANY.        219 

apportionment  among  the  parcels  of  land  benefited  also  rests  witliia 
the  discretion  of  the  legislature,  and  may  be  directed  to  be  in  propor- 
tion to  the  position,  the  frontage,  the  area,  or  the  market  value  of  the 
lands,  or  in  proportion  to  the  benefits  as  estimated  by  commissioners. 

This  subject  has  been  recently  considered  by  this  court  in  the  case 
of  Parsons  v.  District  of  Columbia,  170  U.  S.  45,  and  it  was  there  held, 
after  a  review  of  the  authorities,  that  the  enactment  by  Congress  that 
assessments  levied  for  laying  water  mains  in  the  District  of  Columbia 
should  be  at  the  rate  of  $1.25  per  linear  foot  front  against  all  lots  or 
land  abutting  on  the  street,  road  or  alley,  in  which  a  water  main  shall 
be  laid,  was  constitutional,  and  was  conclusive  alike  of  the  necessity 
of  the  work  and  of  its  benefit  as  against  abutting  property. 

We  do  not  deem  it  necessary  to  extend  this  opinion  by  referring  to 
the  many  cases  in  the  state  courts,  in  which  the  principles  of  the 
foregoing  cases  have  been  approved  and  applied.  It  will  be  sufficient 
to  state  the  conclusions  reached,  after  a  review  of  the  state  decisions, 
by  two  text-writers  of  high  authority  for  learning  and  accuracy : 

"  The  major  part  of  the  cost  of  a  local  work  is  sometimes  collected 
by  general  tax,  while  a  smaller  portion  is  levied  upon  the  estates 
specially  benefited. 

*'The  major  part  is  sometimes  assessed  on  estates  benefited,  while 
the  general  public  is  taxed  a  smaller  portion  in  consideration  of  a 
smaller  participation  in  the  benefits. 

"The  whole  cost  in  other  cases  is  levied  on  lands  in  the  immediate 
vicinity  of  the  work. 

"  In  a  constitutional  point  of  view,  either  of  these  methods  is  ad- 
missible, and  one  may  sometimes  be  just  and  another  at  other  times. 
In  other  cases  it  may  be  deemed  reasonable  to  make  the  whole  cost  a 
general  charge,  and  levy  no  special  assessment  whatever.  The  ques- 
tion is  legislative,  and,  like  all  legislative  questions,  may  be  decided 
erroneously ;  but  it  is  reasonable  to  expect  that,  with  such  latitude 
of  choice,  the  tax  will  be  more  just  and  equal  than  it  would  be  were 
the  legislature  required  to  levy  it  by  one  inflexible  and  arbitrary 
rule."     Cooley  on  Taxation,  447. 

"  The  courts  are  very  generally  agreed  that  the  authorit}''  to  require 
the  property  specially  benefited  to  bear  the  expense  of  local  improve- 
ments is  a  branch  of  the  taxing  power,  or  included  within  it.  .  .  . 
Whether  the  expense  of  making  such  improvements  shall  be  paid 
out  of  the  general  treasury,  or  be  assessed  upon  the  abutting  or  other 
property  specially  benefited,  and,  if  in  the  latter  mode,  whetlier  the 
assessment  shall  be  upon  all  property  found  to  be  benefited,  or  alone 
upon  the  abutters,  according  to  frontage  or  according  to  the  area  of 
their  lots,  is  according  to  the  present  weight  of  authority  considered 
to  be  a  question  of  legislative  expediency."  Dillon's  Municipal 
Corporations,  vol.  2,  §  752,  4th  ed. 

This  array  of  authority  was  confronted,  in  the  courts  below,  with 
the  decision  of  this  court  in  the  case  of  Norwood  v.  Baker,  172  U.  S. 


220  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.    lY, 

2G9,  which  was  claimed  to  overrule  our  previous  cases,  and  to  estab- 
lish the  principle  that  the  cost  of  a  local  improvement  cannot  be 
assessed  against  abutting  property  according  to  frontage,  unless  the 
law,  under  which  the  improvement  is  made,  provides  for  a  prelimi- 
nary hearing  as  to  the  benefits  to  be  derived  by  the  property  to  be 
assessed. 

But  we  agree  with  the  Supreme  Court  of  Missouri  in  its  view  that 
such  is  not  the  necessary  legal  import  of  the  decision  in  Norwood  t\ 
Baker.  That  was  a  case  w^here  by  a  village  ordinance,  apparently 
aimed  at  a  single  person,  a  portion  of  whose  property  was  condemned 
for  a  street,  the  entire  cost  of  opening  the  street,  including  not  only 
the  full  amount  paid  for  the  strip  condemned,  but  the  costs  and 
expenses  of  the  condemnation  proceedings,  was  thrown  upon  the 
abutting  property  of  the  person  whose  land  was  condemned.  This 
appeared,  both  to  the  court  below  and  to  a  majority  of  the  judges 
of  this  court,  to  be  an  abuse  of  the  law,  an  act  of  confiscation,  and 
not  a  valid  exercise  of  the  taxing  power.  This  court,  however,  did 
not  affirm  the  decree  of  the  trial  court  awarding  a  perpetual  injunc- 
tion against  the  making  and  collection  of  any  special  assessments 
upon  Mrs.  Baker's  property,  but  said : 

"  It  should  be  observed  that  the  decree  did  not  relieve  the  abutting 
property  from  liability  for  such  amount  as  could  be  properly  assessed 
against  it.  Its  legal  effect,  as  we  now  adjudge,  was  only  to  prevent 
the  enforcement  of  the  particular  assessment  in  question.  It  left 
the  village,  in  its  discretion,  to  take  such  steps  as  were  within  its 
power  to  take,  either  under  existing  statutes  or  under  any  authority 
that  might  thereafter  be  conferred  upon  it,  to  make  a  new  assessment 
upon  the  plaintiff's  abutting  property  for  so  much  of  the  expense 
of  the  opening  of  the  street  as  was  found  upon  due  and  proper  inquiry 
to  be  equal  to  the  special  benefits  accruing  to  the  property.  By 
the  decree  rendered  the  court  avoided  the  performance  of  functions 
appertaining  to  an  assessing  tribunal  or  body,  and  left  the  subject 
under  the  control  of  the  local  authorities  designated  by  the  State." 

That  this  decision  did  not  go  the  extent  claimed  by  the  plaintiff  in 
error  in  this  case  is  evident,  because  in  the  opinion  of  the  majority 
it  is  expressly  said  that  the  decision  was  not  inconsistent  with  our 
decisions  in  Parsons  v.  District  of  Columbia,  170  U.  S.  45,  56,  and  in 
Spencer  v.  Merchant,  125  U.  S.  345,  357. 

It  may  be  conceded  that  courts  of  equity  are  always  open  to  afford 
a  remedy  where  there  is  an  attempt,  under  the  guise  of  legal  pro- 
ceedings, to  deprive  a  person  of  his  life,  liberty,  or  property,  without 
due  process  of  law.  And  such,  in  the  opinion  of  a  majority  of  the 
judges  of  this  court,  was  the  nature  and  effect  of  the  proceedings  in 
the  case  of  Norwood  v.  Baker. 

But  there  is  no  such  a  state  of  facts  in  the  present  case.  Those 
facts  are  thus  stated  by  the  court  of  Missouri. 

"  The  work  done  consisted  of  paving  with  asphaltum  the  roadway 


SECT.    I.    d.]      FRENCH    V.   BARBER    ASPHALT   PAVING    COMPANY.        221 

of  Forest  avenue  in  Kansas  City,  thirty-six  feet  in  width,  from  Inde- 
pendence avenue  to  Twelfth  street,  a  distance  of  one  half  a  mile. 
Forest  avenue  is  one  of  the  oldest  and  best  improved  residence 
streets  in  the  city,  and  all  of  the  lots  abutting  thereon  front  the 
street  and  extend  back  therefrom  uniformly  to  the  depth  of  an  ordi- 
nary city  lot  to  an  alley.  The  lots  are  all  improved  and  used  for 
residence  purposes,  and  all  of  the  lots  are  substantially  on  the  grade 
of  the  street  as  improved,  and  are  similarly  situated  with  respect 
to  the  asphalt  pavement.  The  structure  of  the  pavement  along  its 
entire  extent  is  uniform  in  distance  and  quality.  There  is  no  show- 
ing that  there  is  any  difference  in  the  value  of  any  of  the  lots  abutting 
on  the  improvement." 

What  was  complained  of  was  an  orderly  procedure  under  a  scheme 
of  local  improvements  prescribed  by  the  legislature  and  approved  by 
the  courts  of  the  State  as  consistent  with  constitutional  principles. 

The  judgment  of  the  Supreme  Court  of  ^Missouri  is       Affirmed} 


1  Mr.  Justice  Harlan  (with  whom  concurred  Mr.  Justice  White  aud  Mb. 
Justice  McKenna)  disseuting,  stated  his  conclusion  as  follows  : 

"I  do  not  doubt  —  indeed,  the  opinion  in  Norwood  v.  Baker  concedes  —  that  the 
legislature  has  a  wide  discretion  in  cases  of  special  assessments  to  meet  the  cost  of 
improving  or  opening  public  highways.  But  I  deny  that  the  owner  of  abutting 
property  can  be  precluded  from  showing  that  the  amount  assessed  upon  him  is  in  sub- 
stantial excess  of  special  l)enefits  accruing  to  his  property.  To  tlie  extent  of  such 
excess  the  burden  should  be  borne  by  the  community  for  whose  benefit  the  improve- 
ment is  made.  I  entirely  concur  in  the  views  of  Church,  C.  J.,  as  expressed  in 
Guest  V.  Brookli/n,  69  N.  Y.  506.  He  said :  '  'J'he  riglit  to  make  a  public  street  is 
based  upon  public  necessity,  and  the  public  should  pay  for  it.  To  force  an  expensive 
improvement  [against  the  consent  of  the  owners,  or  a  majority  of  them]  upon  a  few 
property  owners  against  their  consent,  and  compel  them  to  pay  the  entire  expense, 
under  the  delusive  pretense  of  a  corresponding  specific  benefit  conferred  upon  their 
property,  is  a  species  of  despotism  that  ought  not  to  be  perpetuated  under  a  govern- 
ment which  claims  to  protect  projjerty  ecpially  with  life  and  liberty.  Besides  its 
manifest  injustice,  it  deprives  the  citizen  practically  of  the  principal  protection  [aside 
fiom  constitutional  restraints]  against  unjust  taxation,  viz.,  the  responsihilitv  of  the 
representative  for  his  acts  to  his  constituents.  As  respects  general  taxation  where  all 
are  equally  affected,  this  operates,  but  it  has  no  beneficial  application  in  preventing 
local  taxation  for  public  improvements.  The  majority  are  never  backward  in  consent- 
ing to,  or  even  demanding,  improvements  which  they  may  enjoy  without  expense  to 
themselves.'     2  Dillon's  Muu.  Corp.  934,  4th  ed.  note  1. 

"  In  my  opinion  tlie  judgment  in  the  present  case  should  be  reversed  upon  the  ground 
that  the  assessment  in  question  was  nuide  under  a  statutory  rule  exclu(ling  all  intjuiry 
as  to  special  benefits  and  re([uiring  the  property  abutting  on  tlie  avenue  in  question  to 
meet  the  entire  cost  of  paving  it,  even  if  such  cost  was  in  substantial  excess  of  the 
special  benefits  accruing  to  it ;  leaving  Kansas  City  to  obtaiu  authority  to  make  a  new 
assessment  upon  the  abutting  property  for  so  much  of  the  cost  of  paving  as  may  be 
found  upon  due  in(iuiry  to  be  not  in  excess  of  the  special  benefits  accruing  to  such 
property.  Any  otiier  judgment  will,  I  think,  involve  a  grave  departure  from  the 
principles  that  protect  private  property  against  arbitrary  legislative  power  exerted 
under  the  guise  of  taxation." 


222  THE    LEGISLATIVE    DEPARTMENT.  fCHAP.  IV. 


N 


VEAZIE  BANK  v.  FENNO. 

8  Wallace,  533.     1869. 


) 


[This  suit  was  brought  in  the  United  States  Circuit  Court  for  Maine 
by  the  Bank,  a  corporation  chartered  by  the  State  of  Maine,  against 

(defendant  as  United  States  Internal  llevenue  Collector,  to  recover  a 
sum  of  money  paid  by  the  Bank  under  protest  as  a  tax  on  its  circula- 
tion under  the  provisions  of  act  of  Congress  of  July  13,  1866,  §  9, 
14  Stat.  146.  The  judges  of  the  Circuit  Court  certified  a  division  of 
opinion  as  to  the  constitutionality  of  the  provision.] 

Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  court. 

[The  portions  of  the  opinion  in  which  it  is  decided  that  the  pro- 
vision was  not  unconstitutional  as  a  direct  tax,  nor  as  a  Federal  tax  on 
a  State  franchise,  are  omitted.] 

It  cannot  be  doubted  that  under  the  Constitution  the  power  to  pro- 
vide a  circulation  of  coin  is  given  to  Congress.  And  it  is  settled  by 
the  uniform  practice  of  the  government  and  by  repeated  decisions, 
that  Congress  may  constitutionally  authorize  the  emission  of  bills  of 
credit.  It  is  not  important  here  to  decide  whether  the  quality  of 
legal  tender,  in  payment  of  debts,  can  be  constitutionally  imparted  to 
these  bills  ;  it  is  enough  to  say  that  there  can  be  no  question  of  the 
power  of  the  government  to  emit  them;  to  make  them  receivable 
in  payment  of  debts  to  itself;  to  fit  them  for  use  by  those  who 
see  fit  to  use  them  in  all  the  transactions  of  commerce;  to  provide 
for  their  redemption;  to  make  them  a  currency,  uniform  in  value 
and  description,  and  convenient  and  useful  for  circulation.  These 
powers,  until  recently,  were  only  partially  and  occasionally  exercised. 
Lately,  however,  they  have  been  called  into  full  activity,  and  Congress 
has  undertaken  to  supply  a  currency  for  the  entire  country. 

The  methods  adopted  for  the  supply  of  this  currency  were  briefly 
explained  in  the  first  part  of  this  opinion.  It  now  consists  of  coin, 
of  United  States  notes,  and  of  the  notes  of  the  national  banks.  Both 
descriptions  of  notes  may  be  properly  described  as  bills  of  credit,  for 
both  are  furnished  by  the  government ;  both  are  issued  on  the  credit 
I  of  the  government;  and  the  government  is  responsible  for  the  re- 
)  demption  of  both ;  primarily  as  to  the  first  description,  and  imme- 
diately  upon  default  of  the  bank,  as  to  the  second.  When  these  bills 
shall  be  made  convertible  into  coin,  at  the  will  of  the  holder,  this 
currency  will  perhaps  satisfy  the  wants  of  the  community,  in  respect 
to  a  circulating  medium,  as  perfectly  as  any  mixed  currency  that  can 
be  devised. 

Having  thus,  in  the  exercise  of  undisputed  constitutional  powers, 

/undertaken  to  provide  a  currency  for  the  whole  country,  it  cannot  be 

I  questioned  that  Congress  may,  constitutionally,  secure  the  benefit  of 

it  to  the  people  by  appropriate  legislation.    To  this  end,  Congress  has 


SECT.  I.  e.]   POLLOCK  V.    FARMERS'  LOAN  AND  TRUST  CO.       223 

denied  the  quality  of  legal  tender  to  foreign  coins,  and  has  provided  byi| 
law  against  the  imposition  of  counterfeit  and  base  coin  on  the  commu- 
nity. To  the  same  end,  Congress  may  restrain,  by  suitable  enact- 
ments, the  circulation  as  money  of  any  notes  not  issued  under  its  I 
own  authority.  Without  this  power,  indeed,  its  attempts  to  secure  a 
sound  and  uniform  currency  for  the  country  must  be  futile. 

Viewed  in  this  light,  as  well  as  in  the  other  light  of  a  duty  on  con- 
tracts or  property,  we  cannot  doubt  the  constitutionality  of  the  tax 

under  consideration.^    '••  ■  (^  ._^2<_tA-/  [J  ^(U^  -j  - 

*  •  •  W     '"         •  •  •'*  •  • 


/u<cm^^ 


e.  Direct  Taxes. 


POLLOCIv  V.   FARMERS'   LOAN   AND  TRUST  COMPANY. 

157  United  States,  429  ;  and  158  United  States,  601.     1895. 

[This  suit  was  brought  in  the  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  New  York  by  Pollock  and  others  as 
stockholders  in  defendant  company,  and  in  behalf  of  all  the  stock- 
holders, to  restrain  that  company  from  paying  to  the  United  States 
a  tax  on  its  income  according  to  the  provisions  of  sees.  27  to  37 
of  act  of  Congress  of  Aug.  15,  1894,  relating  to  the  collection  ot\ 
an  income  tax.  It  was  alleged  that  the  income  of  the  company  was 
derived  from  ,xeaL_e§tatej  bonds  and  stocks  of  corporations,  and 
municipal  bonds.  On  demurrer  to  plaintiff's  bilTtHe  question  was 
argued  whetlTer  the  statutory  provisions  in  question  were  unconsti- 
tutional in  view  of  the  third  clause  of  sec.  2  and  the  fourth  clause 
of  sec.  9  of  art.  1  of  the  Constitution  relating  to  the  levy  and 
apportionment  of  direct  taxes  by  Congress.  The  demurrer  was  sus- 
tained and  the  bill  dismissed,  whereupon  complainant  appealed  to 
this  court,  and  it  was  held  by  a  majority  of  the  judges  that  the  stat- 
ute was  unconstitutional  so  far  as  it  levied  a  tax  on  the  rents  or  in- 
come of  real  estate.  On  other  questions  involved  the  judges  who 
heard  the  argument  were  equally  divided  in  opinion  (157  U.  S. 
429).  A  rehearing  was  subsequently  granted  by  the  court  and. the 
following  opinion  was  delivered  (158  U.  S.  GOl).] 

Mr.  Chief  Justici:  Fuller  delivered  the  opinion  of  the  court. 

Whenever  this  court  is  required  to  pass  upon  the  validity  of  an 
act  of  Congress  as  tested  by  the  fundamental  law  enacted  by  the 
people,  the  duty  imposed  demands  in  its  discharge  the  utmost 
deliberation  and  care,  and  invokes  the  deepest  sense  of   responsi- 

^  i\In.  Justice  Nelson  delivered  a  disseiitinj^  opinion,  in  which  Mu.  Jistice 
Davis  concurred. 


224  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV, 

bility.  And  this  is  especially  so  when  the  question  involves  the 
exercise  of  a  great  governmental  power,  and  brings  into  considera- 
tion, as  vitally  affected  by  the  decision,  that  complex  system  of 
government,  so  sagaciously  framed  to  secure  and  perpetuate  "  an  in- 
destructible Union,  composed  of  indestructible  States." 

^Ve  have,  therefore,  with  an  anxious  desire  to  omit  nothing  which 
might  in  any  degree  tend  to  elucidate  the  questions  submitted,  and 
aided  by  further  able  arguments  embodying  the  fruits  of  elaborate 
research,  carefully  reexamined  these  cases,  with  the  result  that, 
while  our  former  conclusions  remain  unchanged,  their  scope  must  be 
enlarged  by  the  acceptance  of  their  logical  consequences. 

The  very  nature  of  the  Constitution,  as  observed  by  Chief  Justice 
Marshall,  in  one  of  his  greatest  judgments,  "  requires  that  only  its 
great  outlines  should  be  marked,  its  important  objects  designated, 
and  the  minor  ingredients  which  compose  those  objects  be  deduced 
[from  the  nature  of  the  objects  themselves."  "In  considering  this 
question,  then,  we  must  never  forget,  that  it  is  a  Constitution  that 
we  are  expounding."     McCulloch  v.  jNlaryland,  4  Wheat.  316,  407. 

As  heretofore  stated,  the  Constitution  divided  Federal  taxation 
/into  two  great  classes,  the  class  of  direct_taxes,  and  the  class  of 
'  ^duties,  imj)_ostSj_and^_excises ;  and  prescribed  two  rules  which  quali- 
!  lied  the  grant  of  power  as  to  each  class. 

The  power  to  lay  direct  taxes  apportioned  among  the  several 
States  in  proportion  to  their  representation  in  the  popular  branch  of 
Congress,  a  representation  based  on  population  as  ascertained  Viy  the 
census,  was  plenary  and  absolute  ;^3it_to_jay_directjbaxes  without 
apportionment  was  forbidden.  The  power  to  lay"  duties,  imposts, 
and  excises  was  subject  to  the  qualification  that  the  imposition  must 
be  uniform  throughout  the  United  States. 

Our  previous  decision  was  confined  to  the  consideration  of  the 
validity  of  the  tax  on  the  income  from  real  estate,  and  on  the  income 
from  municipal  bonds.  The  question  thus  limited  was  whether  such 
taxation  was  direct  or  not,  in  the  meaning  of  the  Constitution;  and 
the  court  went  no  farther,  as  to  the  tax  on  the  income  from  real 
estate,  than  to  hold  that  it  fell  within  the  same  class  as  the  source 
/W'hence  the  income  was  derived,  that  is,  that  a  tax  upon  the  realty 
and  a  tax  upon  the  receipts  therefrom  were  alike  direct;  while  as  tcV 
the  income  from  municipal  bonds,  that  could  not  be  taxed  because  of 
want  of  power  to  tax  the  source,  and  no  reference  was  made  to  the 
nature  of  the  tax  as  being  direct  or  indirect. 

We  are  now  permitted  to  broaden  the  field  of  inquiry,  and  to  de- 
'termine  to  which  of  the  two  great  classes  a  tax  upon  a  person's 
entire  income,  whether  derived  from  rents,  or  products,  or  other- 
wise, of  real  estate,  or  from  bonds,  stocks,  or  other  forms  of  personal 
property,  belongs;  and  we  are  unable  to  conclude  that  the  enforced 
subtraction  from  the  yield  of  all  the  owner's  real  or  personal  prop- 
erty, in  the  manner  prescribed,  is  so  different  from  a  tax  upon  the 


SECT.  I.  e.]       POLLOCK    V.    FARMERS'    LOAN   AND   TRUST   CO.  225| 

property  itself,  that  it  is  not  a  direct,  but  an  indirect  tax,   in  thai 
meaning  of  the  Constitution. 

The  words  of  the  Constitution  are  to  be  taken  in  their  obvious 
sense,  and  to  have  a  reasonable  construction.  In  Gibbons  v.  Ogden, 
Mr.  Chief  Justice  Marshall,  with  his  usual  felicity,  said :  "  As  men, 
whose  intentions  require  no  concealment,  generally  employ  the 
words  which  most  directly  and  aptly  express  the  ideas  they  intend 
to  convey,  the  enlightened  patriots  who  framed  our  Constitution, 
and  the  people  who  adopted  it,  must  be  understood  to  have  employed 
words  in  their  natural  sense,  and  to  have  intended  what  they  have 
said."  9  Wheat.  1,  188.  And  in  Rhode  Island  v.  Massachusetts, 
where  the  question  was  whether  a  controversy  between  two  States 
over  the  boundary  between  them  was  within  the  grant  of  judicial 
power,  Mr.  Justice  Baldwin,  speaking  for  the  court,  observed :  "  The 
solution  of  this  question  must  necessarily  depend  on  the  words  of 
the  Constitution;  the  meaning  and  intention  of  the  convention 
which  framed  and  proposed  it  for  adoption  and  ratification  to  the 
conventions  of  the  people  of  and  in  the  several  States;  together 
with  a  reference  to  such  sources  of  judicial  information  as  are  re- 
sorted to  by  all  courts  in  construing  statutes,  and  to  which  this 
court  has  always  resorted  in  construing  the  Constitution."  12  Pet. 
657,  721. 

We  know  of  no  reason  for  holding  otherwise  than  that  the  words 
"direct  taxes,"  on  the  one  hand,  and  "duties,  imposts  and  excises,"  i 
on  the  other,  were  used  in  the  Constitution  in  their  natural  and 
obvious  sense.  ISTor,  in  arriving  at  what  those  terms  embrace,  do 
we  perceive  any  ground  for  enlarging  them  beyond,  or  narrowing 
them  within,  their  natural  and  obvious  import  at  the  time  the  Con- 
stitution was  framed  and  ratified. 

And,  passing  from  the  text,  we  regard  the  conclusion  reached  as 
inevitable,  when  the  circumstances  which  surrounded  the  conven- 
tion and  controlled  its  action  and  the  views  of  those  who  framed  and 
those  who  adopted  the  Constitution  are  considered. 

We  do  not  care  to  retravel  ground  already  traversed;  but  some 
observations  may  be  added. 

In  the  light  of  the  struggle  in  the  convention  as  to  whether  or  not 
the  new  Nation  should  be  empowered  to  levy  taxes  directly  on  the 
individual  until  after  the  States  had  failed  to  respond  to  requisi- 
tions —  a  struggle  which  did  not  terminate  until  the  amendment  to 
that  effect,  proposed  by  Massachusetts  and  concurred  in  by  South 
Carolina,  New  Hampshire,  New  York,  and  Rhode  Island,  had  been 
rejected  —  it  would  seem  beyond  reasonable  question  that  direct 
taxation,  taking  the  place  as  it  did  of  requisitions,  was  purposely  i 
restrained  to  apportionment  according  to  representation,  in  order' 
that  the  former  system  as  to  ratio  might  be  retained,  while  the  mode 
of  collection  was  changed. 

This  is  forcibly  illustrated  by  a  letter  of  Mr.  Madison  of  January 

15 


.?^^ 


A 


226  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  17. 

29,  1789,  recently  published  (by  Mr.  \Yortliington  C.  Ford  in  The 
Nation.  AjDril  25,  1895;  republished  in  51  Albany  Law  Journal, 
292),  written  after  the  ratification  of  the  Constitution,  but  before 
the  organization  of  the  government  and  the  submission  of  the  pro- 
posed amendment  to  Congress,  which,  while  opposing  the  amend- 
ment as  calculated  to  impair  the  power,  only  to  be  exercised  in 
extraordinary  emergencies,  assigns  adequate  ground  for  its  rejec- 
tion as  substantially  unnecessary,  since,  he  says,  "every  State  which 
chooses  to  collect  its  own  quota  may  always  prevent  a  Federal  collec- 
tion, by  keeping  a  little  beforehand  in  its  finances,  and  making  its 
payment  at  once  into  the  Federal  treasury." 

The  reasons  for  the  clauses  of  the  Constitution  in  respect  of  direct 
taxation  are  not  far  to  seek.      The  States,   respectively,  possessed 
plenary  powers  of  taxation.     They  could  tax  the  property  of  their 
citizens  in  such  manner  and  to  such  extent  as  they  saw  fit;  they  had 
unrestricted  powers  to  impose  duties  or  imposts  on  imports   from 
abroad,  and  excises  on  manufactures,  consumable  commodities,   or 
otherwise.     They  gave  up  the  great  sources  of  revenue  derived  from 
commerce;  they  retained  the  concurrent  power  of  levying  excises, 
and  duties  if  covering  anything  other  than  excises ;  but  in  respect  of 
them  the  range  of  taxation  was  narrowed  by  the  power  granted  over 
interstate  commerce,  and  by  the  danger  of  being  put  at  disadvan- 
tage in  dealing  with  excises  on  manufactures.     They  retained  the 
power  of  direct  taxation,  and   to   that   they  looked  as  their  "cliTel 
resource ;  ^but^  even  in  respect  of  that,  they  granted  the  concurrent 
power,  and  if  the  tax  were"'  placed  by  both  governmeiits^on  the  same 
subject,  the  claim  of  the  United  States  had  preferenceT    Therefore^ 
"tiiey  did  not  grant  the  power  of  direct  taxation  ^\Tt1aout  regard  to 
their  own  condition  and  resources  as  States;  but  they  graiited_the 
:  gower  of  apportioned  direct  taxation,  a  power  just  as  efficacious  to 
j  serve  the   needs  of  the   general   government,  but   securing   to  the 
•  States  the  opportunity  to  pay  the  amount  apportioned,  and  to  re- 
coup from  their  own  citizens  in  the  most  feasible  way,  and  in  har- 
mony  with   their   systems   of   local    self-government.       If,   in    the 
changes  of  wealth  and  population  in  particular  States,  apportion- 
ment produced  inequality,  it  was  an  inequality  stipulated  for,  just 
,as  the  equal  representation  of  the  States,   however  small,   in  the 
Senate,  was  stipulated  for.     The  Constitution  ordains  affirmatively 
that  each  State  shall  have  two  members  of  that  body,  and  negatively 
that  no  State  shall  by  amendment  be  deprived  of  its  equal  suffrage 
in  the  Senate  without  its  consent.     The  ConstilUition^ 
datively  that  representatives  and  direct  taxes  shall  be  apportionecT 
j  among  the  several  States  according  to  numbers,  and  negatively  that 
'-  no  direct  tax  shall  be  laid  unless  in  proportion  to  the  enumeration. 
The  founders   anticipated  that  the   expenditures  of  the   States, 
their  counties,  cities,  and  towns,  would  chiefly  be  met  by  direct 
taxation  on  accumulated  property,  while  they  expected  that  those 


^  A 


SECT.  I.  e.]       POLLOCK    V.    FARMERS'    LOAN    AND    TRUST   CO.  227 

of  the  Federal  government  would  be  for  the  most  part  met  by  in-' 
direct  taxes.  And  in  order  that  the  power  of  direct  taxation  by  the 
general  government  should  not  be  exercised,  except  on  necessity; 
and,  when  the  necessity  arose,  should  be  so  exercised  as  to  leave  the 
Sti^tes  at  liberty  to  discharge  their  respective  obligations,  and  should 
not  be  so  exercised,  unfairly  and  discriminatingly,  as  to  particular 
States  or  otherwise,  by  a  mere  majority  vote,  possibly  of  those 
whose  constituents  were  intentionally  not  subjected  to  any  part  of 
the  burden,  the  qualitied  grant  was  made.  Those  who  made  it  knew 
that  the  power  to  tax  involved  the  power  to  destroy,  and  that,  in 
the  language  of  Chief  Justice  Marshall,  in  McCulloch  v.  Maryland, 
"the  only  security  against  the  abuse  of  this  power  is  found  in  the 
structure  of  the  government  itself.  In  imposing  a  tax,  the  legisla-  ( 
ture  acts  upon  its  constituents.  This  is,  in  general,  a  sufficient 
security  against  erroneous  and  oppressive  taxation."  4  Wheat.  428. 
And  they  retained  this  security  by  providing  that  direct  taxation 
and  representation  in  the  lower  house  of  Congress  should  be  adjusted 
on  the  same  measure. 

Moreover,  whatever  the  reasons  for  the  constitutional  provisions, 
there  they  are,  and  they  appear  to  us  to  speak  in  plain  language. 

It  is  said  that  a  tax  on  the  whole  income  of  property  is  not  a  ] 
direct  tax  in  the  meaning  of  the  Constitution,  but  a  duty,  and,  as  S 
a  duty,  leviable  without  apportionment,  whether  direct  or  indirect,    s 
We  do  not  think  so.     Direct   taxation  was  not   restricted   in   one 
breath,  and  the  restriction  blown  to  the  winds  in  another. 

Cooley  (On  Taxation,  p.  3)  says  that  the  word  ^Uluty^'  ordinarily'  , 
"means  an  indirect  tax  imposed  on  the  importation,  exportation  or  1 /^ 
consumption  of  goods;"  having  "a  broader  meaning  than  custom, 
which  is  a  duty  imposed  on  imports  or  exports;"  that  "the  term 
impost  also  signifies  any  tax,  tribute  or  duty,  but  it  is  seldom  applied 
to  any  but  the  indirect  taxes.     An  excise  duty  is  an  inland  impost,  ' 
levied  upon  articles  of  manufacture  or  sale,  and  also  upon  licenses  to    ^ 
pursue  certain  trades  or  to  deal  in  certain  commodities." 

In  the  Constitution,  the  words  "duties,  imposts  and  excises"  are;kl 
put  in  antithesis  to  direct  taxes.    Gouverneur  Morris  recognized  this  ^ 
in  his  remarks  in  modifying  his  celebrated  motion,  as  did  Wilson  in 
approving  of  the  motion  as  modified.     5  Ell.  Deb.  (Madison  Papers) 
302.     And  Mr.  Justice  Story,  in  his  Commentaries  on  the  Constitu- 
tion, (§  952,)  expresses  the  view  that  it  is  not  unreasonable  to  pre- 
sume that  the  word  "duties  "  was  used  as  equivalent  to  "customs" 
or  "  imposts  "  by  the  framers  of  tlie  Constitution,    since  in  other 
clauses  it  was  provided  that  "'No  tax  or  duty  shall  be  laid  on  arti- 
cles exported  from  any  State,"  and  that  "No  State  shall,  withoutx 
the  consent  of  Congress,  lay  any  imposts  or  duties  on  imports  or  j 
exports,  except  what  may  be  absolutely  necessary  for  executing  its/ 
inspection  laws ;  "  and  he  refers  to  a  letter  of  Mr.  Madison  to  Mr. 
Cabell,  of  September  18,  1828,  to  that  effect.     3  Madison's  Writ- 
ings, 636. 


^'^i^^    ^^-^-^^-gry^^U^C-^  V-Z>-tV^ 


i" 


228  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

In  this  connection  it  may  be  useful,  though  at  the  risk  of  repeti- 
tion, to  refer  to  the  views  of  Hamilton  and  Madison  as  thrown  into 
relief  in  the  pages  of  the  Federalist,  and  in  respect  of  the  enactment 
of  the  carriage  tax  act,  and  again  to  briefly  consider  the  Hylton 
case,  3  Dall.  171,  so  much  dwelt  on  in  argument. 

The  act  of  June  5,  1791,  c.  45,  1  Stat.  373,  laying  duties  upon 
carriages  for   the   conveyance  of   persons,   was  enacted    in   a   time 
of  threatened  war.     Bills  were  then  pending  in  Congress  to  increase 
the  military  force  of  the  United  States,  and  to  authorize  increased 
taxation  in  various  directions.     It  was,  therefore,  as  much  a  part  of 
a  svstem  of  taxation  in  war  times,  as  was  the  income  tax  of  the  war 
of  the  Kebeilion.     The  bill  passed  the  House  on  the  twenty-ninth  of 
May,  apparently  after  a  very  short  debate.     Mr.  jMadison  and  Mr. 
Ames  are  the  only  speakers  on  that   day  reported  in  the  Annals. 
"Mr.  Madison  objected  to  this  tax  on  carriages  as  an  unconstitu- 
4,    r       tioual  tax;   and,  as   an   unconstitutional   measure,    he   w^ould  vote 
^  .      against  it."     Mr.  Ames  said:  "It  was  not  to  be  wondered  at  if  he, 
\      coming  from  so  different  a  part  of  the  country,  should  have  a  differ- 
"•  ent  idea  of  this  tax  from  the  gentleman  who  spoke  last.     In  Mas- 
sachusetts, this  tax  had  been  long  known ;  and  there  it  was  called 
an  excise.     It  was  difficult  to    define  whether  a  tax    is   direct   or 
not.     He  had  satisfied  himself  that  this  was  not  so." 

On  the  first  of  June,  1794,  ]\Ir.  Madison  wrote  to  Mr.  Jefferson : 
"The  carriage  tax,  which  only  struck  at  the  Constitution,  has  passed 
the  House  of  Representatives."  3  Madison's  Writings,  18.  The 
bill  tlien  went  to  the  Senate,  where,  on  the  third  day  of  June,  it 
"  was  considered  and  adopted,"  and  on  the  following  day  it  received 
the  signature  of  President  Washington.  On  the  same  third  day 
of  June  the  Senate  considered  "  an  act  laying  certain  duties  upon 
snuff  and  refined  sugar  ; "  "  an  act  making  further  provisions  for 
securing  and  collecting  the  duties  on  foreign  and  domestic  distilled 
spirits,  stills,  wines,  and  teas  ; "  '•'  an  act  for  the  more  effectual  pro- 
tection of  the  Southwestern  frontier ; "  "  an  act  laying  additional 
duties  on  goods,  wares,  and  merchandise,  etc. ; "  "  an  act  laying 
duties  on  licenses  for  selling  wines  and  foreign  distilled  spirituous 
liquors  by  retail;"  and  "an  act  laying  duties  on  property  sold  at 
auction." 

It  appears  then  that  Mr.  Madison  regarded. the  carriage  tax  bill  as 
unconstitutional,  and  accordingly  gave  his  vote  against  it,  although 
it  was  to  a  large  extent,  if  not  altogether,  a  war  measure. 

Where  did  Mr.  Hamilton  stand  ?  At  that  time  he  was  Secretary 
of  the  Treasury,  and  it  may  therefore  be  assumed,  without  proof, 
that  he  favored  the  legislation.  But  upon  what  ground?  He  must, 
of  course,  have  come  to  the  conclusion  that  it  was  not  a  direct  tax. 
Pid  he  agree  with  Fisher  Ames,  his  personal  and  political  friend, 
that  the  tax  was  an  excise?  The  evidence  is  overwhelming  that  he 
did. 


SECT.  I.  e.]       POLLOCK   V.    FARMERS'   LOAN   AND   TRUST    CO. 


229 


In  the  thirtieth  number  of  the  Federalist,  after  depicting  the  help- 
less and  hopeless  condition  of  the  country  growing  out  of  the  in- 
ability of  the  confederation  to  obtain  from  the  States  the  moneys 
assigned  to  its  expenses,  he  says:  "The  more  intelligent  adversaries 
of  the  new  Constitution  admit  the  force  of  this  reasoning;  but  they 
qualify  their  admission,  by  a  distinction  between  what  they  call 
internal  and  external  taxations.  The  former  they  would  reserve  to 
the  State  governments ;  the  latter,  which  they  explain  into  commer- 
cial imposts,  or  rather  duties  on  imported  articles,  they  declare 
themselves  willing  to  concede  to  the  Federal  head."  In  the  thirty- 
sixth  number,  while  still  adopting  the  division  of  his  opponents,  he 
says :  "  The  taxes  intended  to  be  comprised  under  the  general  de- 
nomination of  internal  taxes,  may  be  subdivided  into  those  of  the 
(ZiVeei  and  those  of  the  i?icZirec«  kind.  .  .  .  As  to  the  latter,  %  i<7iic7i 
must  he  understood  duties  and  excises  on  articles  of  consumption ,  one 
is  at  a  loss  to  conceive,  what  can  be  the  nature  of  the  diihculties 
apprehended."  Thus  we  find  Mr.  Hamilton,  while  writing  to  induce  ' 
the  adoption  of  the  Constitution,  first,  dividing  the  power  of  taxa- 
tion into  external  and  internal,  putting  into  the  former  the  power 
of' imposing  duties  on  imported  articles  and  into  the  latter  all  re- 
maining powers;  and.  second,  dividing  the  latter  into  direct  and 
indirect,  putting  into  the  latter,  duties  and  excises  on  articles  of 
consumption. 

It  seems  to  us  to  inevitably  follow  that  in  Mr.  Hamilton's  judg- 
ment at  that  time  all  internal  taxes,  except  duties  and  excises  on 
articles  of  consumption,  fell  into  the  category  of  direct  taxes. 

Did  he,  in  supporting  the  carriage  tax  bill,  change  his  views  in 
this  respect  ?  His  argument  in  the  Hylton  case  in  support  of  the 
law  enables  us  to  answer  this  question.  It  was  not  reported  by 
Dallas,  but  was  published  in  1851  by  his  son  in  the  edition  of  all 
Hamilton's  writings  except  the  Federalist.  After  saying  that  we 
shall  seek  in  vain  for  any  legal  meaning  of  the  respective  terms 
"direct  and  indirect  taxes,"  and  after  forcibly  stating  the  impossi- 
bility of  collecting  the  tax  if  it  is  to  be  considered  as  a  direct  tax," 
he  says,  doubtingly:  "The  following  are  presumed  to  be  the  only 
direct  taxes.  Capitation  or  poll  taxes.  Taxes  on  lands  and  build- 
ings. General  assessments,  whether  on  the  whole  property  of  indi- 
viduals, or  on  their  whole  real  or  personal  estate;  all  else  must  of^, 
necessity  be  considered  as  indirect  taxes."  '^Duties,  imposts  ana. 
excises  appear  to  be  contradistinguished  from  taxes."  "  If  the  mean- 
ing of  the  word  excise  is  to  be  sought  in  the  l>ritish  statutes,  it  will 
be  found  to  include  the  duty  on  carriages,  which  is  there  considered 
a,s  an  excise."  "Where  so  important  a  distinction  in  the  Constitu- 
tion is  to  be  realized,  it  is  fair  to  seek  the  meaning  of  terms  in  the 
statutory  language  of  that  country  from  which  our  jurisprudence  is 
derived."  7  Hamilton's  Works,  818.  Mr.  Hamilton  therefore 
clearly  supported  the  law  which  Mr.  Madison  opposed,  for  the  same 


230  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

\   reason  that  his  friend  Fisher  Ames  did,  because  it  was  an  excise, 
and  as  such  was  specitically  comprehended  by  the  Constitution.     Any 
loose  expressions  in  definition  of  the  word  "direct,"  so  far  as  con- 
flicting with  his  well-considered  views  in  the  Federalist,  must  be 
regarded  as  the  liberty  which  the  advocate  usually  thinks  himself 
entitled  to  take  with  his  subject.     He  gives,  however,  it  appears  to 
us,  a  definition  which  covers  the  question  before  us.     A  tax  upon 
rt)ne's  whole   income  is  a  tax   upon   the   annual   receipts  from   his 
/(.  whole  property,  and  as  such  falls  within  the  same  class  as  a  tax 
i  upon  that  property,  and  is  a  direct  tax,  in  the  meaning  of  the  Con- 
Vstitution.     And  Mr.  Hamilton  in  his  report  on  the  public  credit,  in 
referring   to   contracts  with    citizens   of   a   foreign    country,    said : 
"This  principle,   which  seems  critically  correct,  would  exempt  as 
well  the  income  as  the   capital  of  the   property.     It  protects   the 
use,  as  effectually  as  the   thing.     What,  in  fact,   is  property,  but 
(  a  fiction,  without  the  beneficial  use  of  it  ?     In  many  cases,  indeed, 
Ithe  income  or  annuity  is  the  property  itself."     3  Hamilton's  Works, 
34. 

We  think  there  is  nothing  in  the  Hylton  case  [3  Dall.  171]  in  con- 
flict with  the  foregoing.  The  case  is  badly  reported.  The  report 
does  not  give  the  names  of  both  the  judges  before  whom  the  case  was 
argued  in  the  Circuit  Court.  The  record  of  that  court  shows  that  Mr. 
Justice  Wilson  was  one  and  District  Judge  Griffin  of  Virginia  was  the 
other.  Judge  Tucker  in  his  appendix  to  the  edition  of  Blackstone 
published  in  1803,  (Tucker's  Blackstone,  vol.  1,  part  1,  p.  294,)  says : 
*'The  question  was  tried  in  this  State,  in  the  case  of  United  States 
V.  Hylton,  and  the  court  being  divided  in  opinion,  was  carried  to  the 
Supreme  Court  of  the  United  States  by  consent.  It  was  there  argued 
by  the  proposer  of  it,  (the  first  Secretary  of  the  Treasury,)  on  behalf 
of  the  United  States,  and  by  the  present  Chief  Justice  of  the  United 
States,  on  behalf  of  the  defendant.  Each  of  those  gentlemen  was 
supposed  to  have  defended  his  own  private  opinion.  That  of  the 
Secretary  of  the  Treasury  prevailed,  and  the  tax  was  afterwards  sub- 
mitted to,  universally,  in  Virginia." 

We  are  not  informed  whether  Mr.  Marshall  participated,  in  the  two 
days'  hearing  at  Eichmond,  and  there  is  nothing  of  record  to  indi- 
cate that  he  appeared  in  tlie  case  in  this  court;  but  it  is  quite  prob- 
able that  Judge  Tucker  was  aware  of  the  opinion  which  he 
entertained  in  regard  to  the  matter. 

Mr.  Hamilton's  argument  is  left  out  of  the  report,  and  in  place  of 
it  it  is  said  that  the  argument  turned  entirely  upon  the  point 
whether  the  tax  was  a  direct  tax,  while  his  brief  shows  that,  so  far 
as  he  was  concerned,  it  turned  upon  the  point  whether  it  was  an 
excise,  and  therefore  not  a  direct  tax. 

Mr.  Justice  Chase  thought  that  the  tax  was  a  tax  on  expense,  be- 
cause a  carriage  was  a  consumable  commodity,  and  in  that  view  the 
tax  on  it  was  on  the  expense  of  the  owner.     He  expressly  declined 


SECT.  I.  e.]   POLLOCK  V.    FARMERS'  LOAN  AND  TRUST  CO. 


231 


to  give  an  opinion  as  to  what  were  the  direct  taxes  contemplated  by 
the  Constitution.    Mr.  Justice  Paterson  said :  "  All  taxes  on  expenses  ; 

or  consumption  are  indirect  taxes ;  a  tax  on  carriages  is  of  tliis  kind."  ;! 

He  quoted  copiously  from  Adam  Smith  in  support  of  his  conclusions,  j 

although  it  is  now  asserted  that  the  justices  made  small  account  of  | 

that  writer.     Mr.  Justice  Iredell  said:  "There  is  no  necessity,  or 
propriety,  in  determining  what  is  or  is  not,  a  direct,  or  indirect,  tax,  j 

in  all  cases.     It  is  sufficient,  on  the  present  occasion,  for  the  court  j 

to  be  satisfied,  that   this  is  not  a  direct   tax  contemplated  by  the  j 

Constitution."  j 

What  was  decided  in  the  Hylton  case  was,  then,  that  a  tax  onjl  -j 

carnages  was  an  excise,  andj  therefore,  an  indirect  tax.     The  con-*'  ! 

tention  of  jMr.  Madison  TiTthe  House  was  only  so  far  disturbed  by  it, 
that  the  court  classified  it  where  he  himself  would  have  held  it  con- 
stitutional, and  he  subsequently  as  President   approved   a  similar  j 
act.     3  Stat.  40.     The  contention  of  Mr.  Hamilton  in  the  Federalist                ] 
was  not  disturbed  by  it  in  the  least.     In  our  judgment,  the  construc- 
tion given  to  the  Constitution  by  the  authors  of  the  Federalist  (the  i 
five  numbers  contributed  by  Chief  Justice  Jay  related  to  the  danger  ^ 
from  foreign  force  and  influence,  and  to  the  treaty-making  power)  ; 
should  not  and  cannot  be  disregarded. 

The  Constitution  prohibits  any  direct  tax,  unless  in  proportion  to  ■< 

numbers  as  ascertained  by  the  census;  and,  in  the  light  of  the  cir- .  i 

cumstances  to  which  we  have  referred,  is  it  not  an  evasion  of  that  i  V 
prohibition  to  hold  that  a  general  unapportioned  tax,  imposed  upon  '/ *         ; 
all  property  owners  as  a  body  for  or  in  respect  of  their  property,  is  j  '• 

not  direct,  in  the  meaning  of  the  Constitution,  because  confined  tq/  \ 

the  income  therefrom  ? 

Whatever  the  speculative  views  of  political  economists  or  revenue 
reformers  may  be,  can  it  be  properly  held  that  the  Constitution, 
taken  in  its  plain  and  obvious  sense,  and  with  due  regard  to  the 
circumstances  attending  the  formation  of  the  government,  authorizes 
a  general  unapportioned  tax  on  the  products  of  the  farm  and  the 
rents  of  real  estate,  although  imposed  merely  because  of  owncrsliip 
and  with  no  possible  means  of  escape  from  payment,  as  belonging 
to  a  totally  different  class  from  that  which  includes  the  property 
from  whence  the  income  proceeds  ?  | 

There  can  be  but  one  answer  unless  the  constitutional  restriction  < 

is  to  be  treated  as  utterly  illusory  and  futile,  and  the  object  of  its  ! 

framers  defeated.     We  find  it  impossible  to  hold  that  a  fundamental  1 

requisition,  deemed  so  important  as  to  be  enforced  by  two  provisions,  f  ■  j 

one  affirmative  and  one  negative,  can  be  refined  away  by  forced  dis-  1 

tinctions  between  that  which  gives  value  to  property,  and  the  prop- 
erty itself.  i 
Nor  can  we  perceive  any  ground  why  the  same  reasoning  does  not    ,           ] 
apply  to  capital  in  personalty  held  for  the  purpose  of   income  or               ] 
ordinarily  yielding  income,  and  to  the  income  therefrom.     All  the    \           ] 


232  THE   LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

real  estate  of  the  country,  and  all  its  invested  personal  property,  are 
/  open  to  the  direct  operation  of  the  taxing  power  if  an  apportionment 
be  made  according  to  the  Constitution.  The  Constitution  does  not 
say  that  no  direct  tax  shall  be  laid  by  apportionment  on  any  other 
property  than  land;  on  the  contrary,  it  forbids  all  unapportioned 
direct  taxes;  and  we  know  of  no  warrant  for  excepting  personal 
property  from  the  exercise  of  the  power,  or  any  reason  why  an  appor- 
tioned direct  tax  cannot  be  laid  and  assessed,  as  Mr.  Gallatin  said 
in  his  report  when  Secretary  of  the  Treasury  in  1812,  "upon  the 
same  objects  of  taxation  on  which  the  direct  taxes  levied  under  the 
'(^ authority  of  the  State  are  laid  and  assessed." 

Personal  property  of  some  kind  is  of  general  distribution;  and  so 
are  incomes,  though  the  taxable  range  thereof  might  be  narrowed 
through  large  exemptions. 

The  Congress  of  the  Confederation  found  the  limitation  of  the 
sources  of  the  contributions  of  the  States  to  "  land,  and  the  build- 
ings and  improvements  thereon,"  by  the  eighth  article  of  July  9, 
1778,  so  objectionable  that  the  article  was  amended  April  28,  1783, 
so  that  the  taxation  should  be  apportioned  in  proportion  to  the  whole 
number  of  white  and  other  free  citizens  and  inhabitants,  including 
those  bound  to  servitude  for  a  term  of  years  and  three-fifths  of  all 
other  persons,  except  Indians  not  paying  taxes;  and  Madison,  Ells- 
worth, and  Hamilton  in  their  address,  in  sending  the  amendment  to 
the  States,  said:  "This  rule,  although  not  free  from  objections,  is 
liable  to  fewer  than  any  other  that  could  be  devised."  1  Ell.  Deb. 
93,  95,  98. 

Nor  are  we  impressed  with  the  contention  that,  because  in  the 
four  instances  in  which  the  power  of  direct  taxation  has  been  exer- 
cised. Congress  did  not  see  lit,  for  reasons  of  expediency,  to  levy  a 
/tax  upon  personalty,  this  amounts  to  such  a  practical  construction 
of  the  Constitution  that  the  power  did  not  exist,  that  we  must  regard 
ourselves  bound  by  it.  "We  sliould  regret  to  be  compelled  to  hold 
the  powers  of  the  general  government  thus  restricted,  and  certainly 
cannot  accede  to  the  idea  that  the  Constitution  has  become  weakened 
by  a  particular  course  of  inaction  under  it. 

The  stress  of  the  argument  is  thrown,  however,  on  the  assertion 
that  an  income  tax  is  not  a  property  tax  at  all;  that  it  is  not  a  real 
estate  tax,  or  a  crop  tax,  or  a  bond  tax ;  that  it  is  an  assessment  upon 
the  taxpayer  on  account  of  his  money-spending  power  as  shown  by 
his  revenue  for  the  year  preceding  the  assessment;  that  rents  re- 
ceived, crops  harvested,  interest  collected,  have  lost  all  connection 
with  their  origin,  and  although  once  not  taxable  have  become 
transmuted  in  their  new  form  into  taxable  subject-matter;  in  other 
words,  that  income  is  taxable  irrespective  of  the  source  from  whence 
it  is  derived. 

This  was  the  view  entertained  by  INEr.  Pitt,  as  expressed  in  his 
celebrated  speech  on  introducing  his  income  tax  law  of  1799,  and  he 


SECT.  I.  e.]       POLLOCK   V.    FARMERS'    LOAN   AND   TRUST   CO.  233 

did  not  hesitate  to  carry  it  to  its  logical  conclusion.  The  English 
loan  acts  provided  that  the  public  dividends  should  be  paid  "free  of 
all  taxes  and  charges  whatsoever;"  but  Mr.  Pitt  successfully  con- 
tended tliat  the  dividends  for  tlie  purposes  of  the  income  tax  were 
to  be  considered  simply  in  relation  to  the  recipient  as  so  much 
income,  and  that  the  fund  holder  had  no  reason  to  complain.  And 
this,  said  Mr.  Gladstone,  fifty-five  years  after,  was  the  rational  con- 
struction of  the  pledge.     Financial  Statements,  32. 

The  dissenting  justices  proceeded  in  effect  upon  this  ground  in 
^Weston  V.  Charleston,  2  Pet.  449,   but  the  court  rejected  it.     That 
was  a  State  tax,  it  is  true ;  but  the  States  have  power  to  lay  income 
taxes,  and  if  the  source  is  not  open  to  inquiry,  constitutional  safe- 
guards might  be  easily  eluded. 

We  have  unanimously  held  in  this  case  that,  so  far  as  this  law\ 
operates  on  the  receipts  from  municipal  bonds,  it  cannot  be  sustained,! 
because  it  is  a  tax  on  the  power  of  the  States,  and  on  their  instru- J 
mentalities  to  borrow  money,  and   consequently  repugnant  to  the' 
Constitution.     But  if,  as  contended,  the  interest  when  received  has 
become  merely  money  in  the  recipient's  pocket,  and  taxable  as  such 
without  reference  to  the  source  from  which  it  came,  the  question  is 
iminaterial  whether  it  could  have  been  originally  taxed  at  all  or  not. 
This   was   admitted   by   the    Attorney  General  with   characteristic 
candor;  and  it  follows  that,  if  the  revenue  derived  from  municipal 
bonds  cannot  be  taxed  because  the  source  cannot  be,  the  same  rule 
applies  to  revenue  from  any  other  source  not  subject  to  the  tax;  and 
the  lack  of  power  to  levy  any  but  an  apportioned  tax  on  real  and 
personal  property  equally  exists  as  to  the  revenue  therefrom. 

Admitting  that  this  act  taxes  the  income  of  property  irrespective 
of  its  source,  still  we  cannot  doubt  that  such  a  tax  is  necessarily 
a  direct  tax  in  the  meaning  of  the  Constitution. 

We  have  considered  the  act  only  in  respect  of  the  tax  on  income 
derived  from  real  estate,  and  from  invested  personal  property,  and 
have  not  commented  on  so  much  of  it  as  bears  on  gains  or  profits  from 
business,  privileges,  or  employments,  in  view  of  the  instances  in 
which  taxation  on  business,  privileges,  or  employments  has  assumed 
the  guise  of  an  excise  tax  and  been  sustained  as  such. 

Being  of  opinion  that  so  much  of  the  sections  of  this  law  as  lays 
a  tax  on  income  from  real  and  personal  property  is  invalid,  we  are 
brought  to  the  question  of  the  effect  of  that  conclusion  upon  these 
sections  as  a  whole. 

It  is  elementary  that  the  same  statute  may  be  in  part  constitu- 
tional and  in  part  unconstitutional,  and  if  the  parts  are  wholly  inde- 
pendent of  each  other,  that  which  is  constitutional  may  stand  while 
that  which  is  unconstitutional  will  be  rejected.  And  in  the  case 
before  us  there  is  no  question  as  to  the  validity  of  this  act,  except 
sections  twenty-seven  to  thirty-seven,  inclusive,  which  relate  to  :he 


?7 


234  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

subject  which  has  been  under  discussion ;  and  as  to  them  we  think 
the  rule  laid  down  by  Chief  Justice  Shaw  in  Warren  v.  Charlestown, 
2  Gray,  84,  is  applicable,  that  if  the  different  parts  "  are  so  mutually 
connected  with  and  dependent  on  each  other,  as  conditions,  consid- 
erations or  compensations  for  each  other,  as  to  warrant  a  belief  that 
the  legislature  intended  them  as  a  whole,  and  that,  if  all  could  not 
be  carried  into  effect,  the  legislature  would  not  pass  the  residue 
independently,  and  some  parts  are  unconstitutional,  all  the  provi- 
sions which  are  thus  dependent,  conditional  or  connected,  must  fall 
with  them."  Or,  as  the  point  is  put  by  jVEr.  Justice  Matthews  in 
Foindexter  v.  Greenhow,  114  U.  S.  270,  304:  "It  is  undoubtedly 
true  that  there  may  be  cases  where  one  part  of  a  statute  may  be 
enforced  as  constitutional,  and  another  be  declared  inoperative  and 
void,  because  unconstitutional ;  but  these  are  cases  where  the  parts 
are  so  distinctly  separable  that  each  can  stand  alone,  and  where  the 
court  is  able  to  see,  and  to  declare,  that  the  intention  of  the  legisla- 
ture was  that  the  part  pronounced  valid  should  be  enforceable,  even 
though  the  other  part  should  fail.  To  hold  otherwise  would  be  to 
substitute,  for  the  law  intended  by  the  legislature,  one  they  may 
never  have  been  willing  by  itself  to  enact."  And  again,  as  stated 
by  the  same  eminent  judge  in  Spraigue  v.  Thompson,  118  U.  S.  90, 
95,  where  it  was  urged  that  certain  illegal  exceptions  in  a  section  of 
a  statute  might  be  disregarded,  but  that  the  rest  could  stand  :  "  The 
insuperable  difficulty  with  the  application  of  that  principle  of  con- 
struction to  the  present  instance  is,  that  by  rejecting  the  exceptions 
intended  by  the  legislature  of  Georgia  the  statute  is  made  to  enact 
what  confessedly  the  legislature  never  meant.  It  confers  upon  the 
statute  a  positive  operation  beyond  the  legislative  intent,  and  bej-ond 
what  any  one  can  say  it  would  have  enacted  in  view  of  the  illegality 
of  the  exceptions." 

According  to  the  census,  the  true  valuation  of  real  and  personal 
property  in  the  United  States  in  1890  was  $65, 037, 091;  197,  of  which 
real  estate  with  improvements  thereon  made  up  $39,544,544,333. 
Of  course,  from  the  latter  must  be  deducted,  in  applying  these  sec- 
tions, all  unproductive  property  and  all  property  whose  net  yield 
does  not  exceed  four  thousand  dollars ;  but,  even  with  such  deduc- 
tions, it  is  evident  that  the  income  from  realty  formed  a  vital  part 
of  the  scheme  for  taxation  embodied  therein.  If  that  be  stricken 
out,  and  also  the  income  from  all  invested  personal  property,  bonds, 
stocks,  investments  of  all  kinds,  it  is  obvious  that  by  far  the  largest 
part  of  the  anticipated  revenue  would  be  eliminated,  and  this  would 
leave  the  burden  of  the  tax  to  be  borne  by  professions,  trades,  em- 
ployments, or  vocations;  and  in  that  way  what  was  intended  as  a 
tax  on  capital  would  remain  in  substance  a  tax  on  occupations  and 
labor.  We  cannot  believe  that  such  was  the  intention  of  Congress. 
We  do  not  mean  to  say  that  an  act  laying  by  apportionment  a  direct 
tax  on  all  real  estate  and  personal  property,  or  the  income  thereof, 


SECT.  II.  a.]  GIBBONS   V.    OGDEN.  235 

miglit  not  also  lay  excise  taxes  on  business,  privileges,  employments, 
and  vocations.  But  this  is  not  such  an  act;  and  the  scheme  must 
be  considered  as  a  whole.  Being  invalid  as  to  the  greater  part,  and 
falling,  as  the  tax  would,  if  any  part  were  held  valid,  in  a  direction 
wliich  could  not  have  been  contemplated  except  in  connection  with 
the  taxation  considered  as  an  entirety,  we  are  constrained  to  con- 
clude that  sections  twenty-seven  to  thirty-seven,  inclusive,  of  the 
act,  which  became  a  law  without  the  signature  of  the  President  on 
August  28,  1894,  are  wholly  inoperative  and  void. 

Our  conclusions  may,  therefore,  be  summed  up  as  follows : 

First.  We  adhere  to  the  opinion  already  announced,  that,  taxesX/' 
on  real  estate  being  indisputably  direct  taxes,  taxes  on  the  rents  ovN\ 
income  of  real  estate  are  equally  direct  taxes.  [^ 

Second.    We  are  of  opinion  that  taxes  on  personal  proj^erty,  or  on  Vl^ 
the  income  of  personal  property,  are  likewise  direct  taxes.  '' , 

Third.    The   tax    imposed   by    sections    twenty-seven   to   thirty-   ' 
seven,  inclusive,  of  the  act  of  1894,  so  far  as  it  falls  on  the  incom^ 
of  real  estate  and  of  personal  property,  being  a  direct  tax  withiuL  ^ 
the  meaning  of  the   Constitution,  and,  therefore,  unconstitutional  i\ 
and  void  because  not  apportioned  according  to  representation,  all  'V\ 
those   sections,    constituting   one   entire   scheme   of    taxation,    are  \ 
necessarily  invalid.  ^' 

The  decrees  hereinbefore  entered  in  this  court  will  he  vacated  ;  the 
decrees  beloio  will  he  reversed,  and  the  cases  remanded,  with 
instructions  to  grant  the  relief  prayed.^ 


Section  II.  —  Regulation  of  Commerce. 


''-^-. 


1 


9  Wheaton,  1;  6  Curtis,  1.     1824. 


a.    Extent  of  Federal  Power. 

GIBBONS  V.  OGDEN.  .    ^ 

Error  to  the  court  for  the  trial  of  impeachments  and  correction  of  ^    / 
errors  of  the  State  of  New  York.     Aaron  Ogden  filed  his  bill  in  the  ^  y ^ 
Court  of  Chancery  of  that  State,   against  Thomas  Gibbons,  setting  -^  ' 
forth  the  several  acts  of  the  legislature  thereof,  enacted  for  the  pur-  ^2- 
pose  of  securing  to  Robert  R.  Livingston  and  Robert  Fulton,  the  ex- 
clusive navigation  of  all  the  waters  within  the  jurisdiction  of  that  j 


^  Dissentinfij   opinions   were  delivered   by   Mr.  Justice   Harlan,  Mr.  Justice 
Brown,  Mk.  Justice  Jacksox,  and  ^Ir.  Justice  White. 


'^ 


236  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

State,  with  boats  moved  by  fire  or  steam,  for  a  terra  of  years  which 
has  not  j^et  expired;  and  authorizing  the  chancellor  to  award  an 
injunction,  restraining  any  person  whatever  from  navigating  those 
waters  with  boats  of  that  description.  The  bill  stated  an  assignment 
from  Livingston  and  Fulton  to  one  John  K.  Livingston,  and  from 
him  to  the  complainant,  Ogden,  of  the  right  to  navigate  the  waters 
between  Elizabethtown,  and  other  places  in  New  Jersey,  and  the  city 
of  New  York  ;  and  that  Gibbons,  the  defendant  below,  was  in  posses- 
sion of  two  steamboats,  called  The  Stoudinger  and  The  Bellona, 
which  were  actually  running  between  Kew  York  and  Elizabethtown, 
in  violation  of  the  exclusive  privilege  conferred  on  the  complainant, 
and  praying  an  injunction  to  restrain  the  said  Gibbons  from  using 
the  said  boats,  or  any  other  propelled  by  fire  or  steam,  in  navigating 
the  waters  within  the  territory  of  New  Y'ork.  The  injunction  having 
A  been  awarded,  the  answer  of  Gibbons  was  filed,  in  which  he  stated 
that  the  boats  employed  by  him  were  duly  enrolled  and  licensed,  to 
be  employed  in  carr^^ing  on  the  coasting  trade,  under  tlie  act  of  Con- 
gress, passed  the  18th  of  February,  1793,  c.  8  (1  Stats,  at  Large,  305), 
entitled  "  An  act  for  enrolling  and  licensing  ships  and  vessels  to  be 
employed  in  the  coasting  trade  and~nsheries,  and  for  regulating  the 
same."  And  the  defendant  insisted  on  his  right,  in  virtue  of  such 
licenses,  to  navigate  the  waters  between  Elizabethtown  and  the  city 
of  New  Y''ork,  the  said  acts  of  the  legislature  of  the  State  of  Ncav 
York  to  the  contrary  notwithstanding.  At  the  hearing,  the  chancel- 
lor perpetuated  the  injunction,  being^of  the  opinion  that  the  said  acts 
were  not  repugnant  to  the  Constitution  and  laws  of  the  United  States, 
and  were  valid.  This  decree  was  affirmed  in  the  court  for  the  trial  of 
impeachments  and  correction  of  errors,  which  is  the  highest  court  of 
law  and  equity  in  the  State,  before  which  the  cause  could  be  carried, 
and  it  was  thereupon  brought  to  this  court  by  writ  of  error. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  and,  after 
stating  tTre"case,  proceeded  as  follows :  — 

The  appellant  contends  that  this  decree  is  erroneous,  because  the 
laws  which  j^urport  to  give  the  exclusive  privilege  it  sustains,  are 
repugnant  to  the  Constitution  and  laws  of  the  United  States. 

They  are  said  to  be  repugnant  — 
/        1.   To  that  clause  in  the  Constitution  which  authorizes  Congress  to 
regulate  commerce. 

2.  To  that  which  authorizes  Congress  to  promote  the  progress  of 
science  and  useful  arts. 

The  State  of  New  York  maintains  the  constitutionality  of  these 
laws  ;  and  their  legislature,  their  council  of  revision,  and  their  judges, 
have  repeatedly  concurred  in  this  opinion.  It  is  supported  by  great 
names  —  by  names  which  have  all  the  titles  to  consideration  that 
virtue,  intelligence,  and  office,  can  bestow.  No  tribunal  can  approach 
the  decision  of  this  question,  without  feeling  a  just  and  real  respect 
for  that  opinion  which  is  sustained  by  such  authority ;  but  it  is  the 


^"^ 


SECT.  II.  a.]  GIBBONS   V.    OGDEN.  237 

province  of  this  court,  while  it  respects,  not  to  bow  to  it  implicitly; 
and  the  judges  must  exercise,  in  the  examination  of  the  subject,  that 
understanding  which  Providence  has  bestowed  upon  them,  with  that 
independence  which  the  people  of  the  United  States  expect  from  this 
department  of  the  government. 

As  preliminary  to  the  very  able  discussions  of  the  Constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence  ou 
its  construction,  reference  has  been  made  to  the  political  situation 
of  these  States,  anterior  to  its  formation.  It  has  been  said  that  they 
were  sovereign,  were  completely  independent,  and  were  connected 
with  each  other  only  by  a  league.  This  is  true.  But,  when  these 
allied  sovereigns  converted  their  league  into  a  government,  when 
they  converted  their  congress  of  ambassadors,  deputed  to  deliberate 
on  their  common  concerns,  and  to  recommend  measures  of  general 
utility,  into  a  legislature,  empowered  to  enact  laws  on  the  most 
interesting  subjects,  the  whole  character  in  which  the  States  appear 
underwent  a  change,  the  extent  of  which  must  be  determined  by 
a  fair  consideration  of  the  instrument  by  which  that  change  was 
effected. 

This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said  that 
these  powers  ought  to  be  construed  strictly.  But  why  ought  they 
to  be  so  construed  ?  Is  there  one  sentence  in  the  Constitution  which 
gives  countenance  to  this  rule  ?  In  the  last  of  the  enumerated 
powers,  that  which  grants,  expressly,  the  means  for  carrying  all 
others  into  execution,  Congress  is  authorized  "  to  make  all  laws 
which  shall  be  necessary  and  proper  "  for  the  purpose.  But  this 
limitation  on  the  means  which  may  be  used,  is  not  extended  to  the 
powers  which  are  conferred  ;  nor  is  there  one  sentence  in  the  Consti- 
tution, which  has  been  pointed  out  by  the  gentlemen  of  the  bar,  or 
which  we  have  been  able  to  discern,  that  prescribes  this  rule.  We  do 
not,  therefore,  think  ourselves  justified  in  adopting  it.  What  do  gen- 
tlemen mean  by  a  strict  construction  ?  If  they  contend  only  against 
that  enlarged  construction,  which  would  extend  words  beyond  their 
natural  and  obvious  import,  we  might  question  the  application  of  the 
term,  but  should  not  controvert  the  principle.  If  they  contend  for 
that  narrow  construction  which,  in  support  of  some  theory  not  to  be 
found  in  the  Constitution,  would  deny  to  the  government  those  powers 
which  the  words  of  the  grant,  as  usually  understood,  import,  and 
which  are  consistent  with  the  general  views  and  objects  of  the  instru- 
ment ;  for  that  narrow  construction,  which  would  cripple  the  govern- 
ment, and  render  it  unequal  to  the  objects  for  which  it  is  declared  to 
be  instituted,  and  to  which  the  powers  given,  as  fairly  understood, 
render  it  competent;  then  we  cannot  perceive  the  propriety  of  this 
strict  construction,  nor  adopt  it  as  the  rule  by  which  the  Constitution 
is  to  be  expounded.  As  men  whose  intentions  require  no  concealment, 
generally  employ  the  words  which  most  directly  and  aptly  express 


238  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

the  ideas  they  intend  to  convey,  the  enlightened  patriots  who  framed 
our  constitution,  and  the  people  who  adopted  it,  must  be  understood 
to  have  employed  words  in  their  natural  sense,  and  to  have  intended 
what  they  have  said.  If,  from  the  imperfection  of  human  language, 
there  should  be  serious  doubts  respecting  the  extent  of  any  given 
power,  it  is  a  well  settled  rule  that  the  objects  for  which  it  was 
given,  especially  when  those  objects  are  expressed  in  the  instrument 
itself,  should  have  great  influence  in  the  construction.  We  know  of 
no  reason  for  excluding  tliis  rule  from  the  present  case.  The  grant 
does  not  convey  power  which  might  be  beneficial  to  the  grantor,  if 
retained  by  himself,  or  which  can  enure  solely  to  the  benefit  of  the 
grantee ;  but  is  an  investment  of  power  for  the  general  advantage,  in 
the  hands  of  agents  selected  for  that  purpose  ;  which  power  can  never 
be  exercised  by  the  people  themselves,  but  must  be  placed  in  the 
hands  of  agents,  or  lie  dormant.  We  know  of  no  rule  for  construing 
the  extent  of  such  powers,  other  than  is  given  by  the  language  of  the 
instrument  which  confers  them,  taken  in  connection  with  the  purposes 
for  which  they  were  conferred. 

The  words  are  :  "  Congress  shall  have  power  to  regulate  ^ominerce 
y  /  with  foreign  nations,  and  among  the  several  States,  and  with^Tlie 
Indian  tribes." 

The  subject  to  be  regulated  is  commerce  ;  and  our  Constitution 
being,  as  was  aptly  said  at  the  bar,  one  of  enumeration,  and  not  ol, 
de^ition,  to  ascertain  the  extent  of  the  power,  it  becomes  necessary 
to  settle  the  meaning  of  the  word.  The  counsel  for  the  appellee  would 
limit  it  to  traffic,  to  buying  and  selling,  or  the  interchange  of  commodi- 
ties, and  do  not  admit  that  it  comprehends  navigation.  This  would 
VI  restrict  a  general  term,  applicable  to  many  objects,  to  one  of  its  sig- 
/\\  nifications.  Commerce,  undoubtedly,  is  traffic,  but  it  is  something 
'  more;  it  is  intercourse.  It  describes  the  commercial  intercourse  be- 
tween nations,  and  parts  of  nations,  in  all  its  branches,  and  is  regulated 
by  prescribing  rules  for  carrying  on  that  intercourse.  The  mind  can 
scarcely  conceive  a  system  for  regulating  commerce  between  nations, 
which  shall  exclude  all  laws  concerning  navigation,  which  shall  be 
silent  on  the  admission  of  the  vessels  of  the  one  nation  into  the  ports 
of  the  other,  and  be  confined  to  prescribing  rules  for  the  conduct  of 
individuals,  in  the  actual  employment  of  buying  and  selling,  or  of 
barter. 

If  commerce  does  not  include  navigation,  the  government  of  the 
Union  has  no  direct  power  over  that  subject,  and  can  make  no  law 
prescribing  what  shall  constitute  American  vessels,  or  requiring  that 
they  shall  be  navigated  by  American  seamen.  Yet  this  power  has 
been  exercised  from  the  commencement  of  the  government,  has  been 
exercised  with  the  consent  of  all,  and  has  been  understood  by  all  to 
be  a  commercial  regulation.  All  America  understands,  and  has  uni- 
formly understood,  the  word  "  commerce,"  to  comprehend  navigation. 
It  was  so  understood,  and  must  have  been  so  understood,  when  the 


SECT.  II.  a.]  GIBBONS    V.    OGDEN.  239 

Constitution  was  framed.  The  power  over  commerce,  including  navi- 
gation, was  one  of  the  primary  objects  for  whicli  the  people  of  America 
adopted  their  government,  and  must  have  been  contemplated  in  form- 
ing it.  The  convention  must  have  used  the  word  in  that  sense,  because 
all  have  understood  it  in  that  sense  ;  and  the  attempt  to  restrict  it 
comes  too  late. 

If  the  opinion  that  "  commerce,"  as  the  word  is  used  in  the  Consti- 
tution, comprehends  navigation  also,  requires  any  additional  con- 
firmation, that  additional  confirmation  is,  we  think,  furnished  by  the 
words  of  the  instrument  itself. 

It  is  a  rule  of  construction  aclcnowledged  by  all,  that  the  excep- 
tions from  a  power  mark  its  extent ;  for  it  would  be  absurd,  as  weTl 
as  useless,  ^to~^cq)r7foirr"ar''granted  power  that  which  was  not 
granted  —  that  which  the  words  of  the  grant  could  not  comprehend. 
If,  then,  there  are  in  the  Constitution  plain  exceptions  from  the  power 
over  navigation,  plain  inhibitions  to  the  exercise  of  that  power  in  a 
particular  way,  it  is  a  proof  tliat  those  who  made  these  exceptions,  and 
prescribed  these  inhibitions,  understood  the  power  to  which  they 
applied  as  being  granted. 

"The  9th  section  of  the  1st  article  declares  that  "no  preference 
shall  be  given,  b}'  any  regulation  of  commerce  or  revenue,  to  the 
ports  of  one  State  over  those  of  another."  This  clause  cannot  be 
understood  as  applicable  to  those  laws  only  which  are  passed  for 
the  purposes  of  revenue,  because  it  is  expressly  applied  to  commer- 
cial regulations ;  and  the  most  obvious  preference  which  can  be  given 
to  one  port  over  another,  in  regulating  commerce,  relates  to  naviga- 
tion. But  the  subsequent  part  of  the  sentence  is  still  more  explicit. 
It  is,  "  nor  shall  vessels  bound  to  or  from  one  State,  be  obliged  to 
enter,  clear,  or  pay  duties,  in  another."  These  words  have  a  direct 
reference  to  navigation. 

The  universally  acknowledged  power  of  the  government  to  impose 
embargoes,  must  also  be  considered  as  showing  that  all  America  is 
united  in  that  construction  which  comprehends  navigation  in  the 
word  commerce.  Gentlemen  have  said,  in  argument,  that  this  is  a 
branch  of  the  war-making  power,  and  that  an  embargo  is  an  instru- 
ment of  war,  not  a  regulation  of  trade. 

That  it  may  be,  and  often  is,  used  as  an  instrument  of  war,  cannot 
be  denied.  An  embargo  may  be  imposed  for  the  purpose  of  facili- 
tating the  equipment  or  manning  of  a  fleet,  or  for  the  purpose  of 
concealing  the  progress  of  an  expedition  preparing  to  sail  from  a 
particular  port.  In  these  and  in  similar  cases,  it  is  a  military  in- 
strument, and  partakes  of  the  nature  of  war.  But  all  embargoes  are 
not  of  this  description.  They  are  sometimes  resorted  to  without  a 
view  to  war,  and  with  a  single  view  to  commerce.  In  such  case,  an 
embargo  is  no  more  a  war  measure  than  a  merchantman  is  a  ship  of 
war,  because  both  are  vessels  which  navigate  the  ocean  with  sails  and 
seamen. 


I 


240  THE   LEGISLATIVE   DEPARTMENT.  [CHAP,  IV. 

When  Congress  imposed  that  embargo  which,  for  a  time,  engaged 
the  attention  of  every  man  in  the  United  States,  the  avowed  object 
of  the  law  was,  the  protection  of  commerce,  and  the  avoiding  of  war. 
By  its  friends  and  its  enemies  it  was  treated  as  a  commercial,  not  as 
a  war  measure.  The  persevering  earnestness  and  zeal  with  which  it 
was  opposed,  in  a  part  of  our  country  which  supposed  its  interests  to 
be  vitally  affected  by  the  act,  cannot  be  forgotten.  A  want  of  acute- 
ness  in  discovering  objections  to  a  measure  to  which  they  felt  the  most 
deep-rooted  hostility,  will  not  be  imputed  to  those  who  were  arrayed 
in  opposition  to  this.  Yet  they  never  suspected  that  navigation  was 
no  branch  of  trade,  and  was,  therefore,  not  comprehended  in  the 
power  to  regulate  commerce.  They  did,  indeed,  contest  the  constitu- 
tionality of  the  act,  but,  on  a  principle  which  admits  the  construction 
for  which  the  appellant  contends.  They  denied  that  the  particular 
law  in  question  was  made  in  pursuance  of  the  Constitution,  not  because 
the  power  could  not  act  directly  on  vessels,  but  because  a  perpetual 
embargo  was  the  annihilation,  and  not  the  regulation  of  commerce. 
In  terms,  they  admitted  the  applicability  of  the  words  used  in  the 
Constitution  to  vessels  ;  and  that,  in  a  case  which  produced  a  degree 
and  an  extent  of  excitement,  calculated  to  draw  forth  every  principle 
on  which  legitimate  resistance  could  be  sustained.  Xo  example  could 
more  strongly  illustrate  the  universal  understanding  of  the  American 
people  on  this  subject. 

The  word  used  in  the  Constitution,  then,  comprehends,  and  has  been 
/'always  understood  to  comprehend,  navigation,  within  its  meaning ; 
I  and  a  power  to  regulate  navigation  is  as  expressly  granted  as  if  that 
[  term  had  been  added  to  the  word  "  commerce." 

To  what  commerce  does  this  power  extend  ?  The  Censtitution  in- 
forms us,  to  commerce  ''  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes." 

It  has,  we  believe,  been  universally  admitted  that  these  words  com- 
prehend every  species  of  commercial  intercourse  between  the  United 
States  and  foreign  nations.  No  sort  of  trade  can  be  carried  on  be- 
tween this  country  and  any  other,  to  which  this  power  does  not  ex- 
tend. It  has  been  truly  said  that  commerce,  as  the  word  is  used  in 
the  Constitution,  is  a  unit,  every  part  of  which  is  indicated  by  the 
term. 

If  this  be  the  admitted  meaning  of  the  word,  in  its  application  to 
foreign  nations,  it  must  carry  the  same  meaning  throughout  the  sen- 
tence, and  remain  a  unit,  unless  there  be  some  plain  intelligible  cause 
which  alters  it. 

The  subject  to  which  the  power  is  next  applied,  is  to  commence 

\  "among   the   several    States."      The   word   "among"   means   inter- 

/  mingled  with.     A  thing  wFich  is  among  others,  is  intermingled  with 

\    them.      Commerce  among  the  States,  cannot  stop  at  the  external 

■   boundary  line  of  each  State,  but  may  be  introduced  into  the  interior:' 

It  is  not  intended  to  say  that  these  words  comprehend  that  com- 


C-^^ 


SECT.  II.  a.]  GIBBONS   V.    OGDEN.  241 

merce  which  is  completely  internal,  which  is  carried  on  between  man 
and  man  in  a  State,  or  between  different  parts  of  the  same  State,  and 
which  does  not  extend  to  or  affect  other  States.  Such  a  power  would 
be  inconvenient,  and  is  certainly  unnecessary. 

Comprehensive  as  the  word  "  among  "  is,  it  may  very  properly  be 
restricted  to  that  commerce  which  concerns  more  States  than  one. 
The  phrase  is  not  one  which  would  probably  have  been  selected  to 
indicate  the  completely  interior  traffic  of  a  State,  because  it  is  not  an 
apt  phrase  for  that  purpose  ;  and  the  enumeration  of  the  particular 
classes  of  commerce  to  which  the  power  was  to  be  extended,  would 
not  have  been  made,  had  the  intention  been  to  extend  the  power  to 
every  description.  The  enumeration  presupposes  something  not  enu- 
merated; and  that  something,  if  we  regard  the  language,  or  the  sub- 
ject of  the  sentence,  must  be  the  exclusively  internal  commerce  of  a 
State.  The  genius  and  character  of  the  whole  government  seem  to 
be,  that  its  action  is  to  be  applied  to  all  the  external  concerns  of  the 
nation,  and  to  those  internal  concerns  which  affect  the  States  gen- 
erally ;  but  not  to  those  which  are  completely  within  a  particular 
~  State,  which  do  not  affect  other  States,  and  with  which  it  is  not 
n'ecessary  to  interfere,  for  the  purpose  of  executing  some  of  the 
general  powers  of  the  government.  The  completely  internal  com- 
merce of  a  State,  then,  may  be  considered  as  reserved  for  the  State 
itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power  of 
Congress  does  not  stop  at  the  jurisdictional  lines  of  the  several 
States.  It  would  be  a  very  useless  power,  if  it  could  not  pass  those 
lines.  The  commerce  of  the  United  States  with  foreign  nations,  is 
that  of  the  whole  United  States.  Every  district  has.  a  right  to  par- 
ticipate in  it.  The,  deep  streams  which  penetrate  our  country  in 
every  direction,  pass  through  the  interior  of  almost  every  State  in 
the  Union,  and  furnish  the  means  of  exercising  this  right.  If  Con- 
gress has  the  power  to  regulate  it,  that  power  must  be  exercised 
whenever  the  subject  exists.  If  it  exists  within  the  States,  if  a 
foreign  voyage  may  commence  or  terminate  at  a  port  within  a  State, 
then  the  power  of  Congress  may  be  exercised  within  a  State. 

This  principle  is,  if  possible,  still  more  clear,  when  applied  to  com- 
merce "  among  the  several  States."  The)^  either  join  each  other,  in 
which  case  they  are  separated  by  a  mathematical  line,  or  they  are 
remote  from  each  other,  in  which  case  other  States  lie  between  them. 
What  is  commerce  "  among  "  them  ;  and  how  is  it  to  be  conducted  ? 
Can  a  trading  expedition  between  two  adjoining  States  commence  and 
terminate  outside  of  each  ?  And  if  the  trading  intercourse  be  between 
two  States  remote  from  each  other,  must  it  not  commence  in  one,  ter- 
minate in  the  other,  and  probably  pass  through  a  third  ?  Com  merce 
among  the  States,  must,  of  necessity,  be  commerce  with  the  States.  / 
In  the  regulation  of  trade  with  the  Indian  tribes,  the  action  of  the  law, 
especially  when  the  Constitution  was  made,  was  chiefly  within  a  State. 

16 


242  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

The  power  of  Congress,  then,  whatever  it  may Jie^jnustjhe-_exerciaed 
within  the  territorial  jurisdiction  of  the  sev^eral  States.  The  sense 
of  the  nation  on  this  subject,  is  unequivocally  manifested  by  the  pro- 
visions made  in  the  laws  for  transporting  goods,  by  land,  between 
Baltimore  and  Providence,  between  New  York  and  Philadelphia,  and 
between  Philadelphia  and  Baltimore. 

We  are  now  arrived  at  the  inquiry  —  what  is  this  power  ? 

It  is  the  power  to  regulate  ;  that  is,  to  prescribe  the  rule  by  which 
commerce  is  to  be  governed.  This  power,  like  all  others  vested  in 
Congress,  is  complete  iii  itself,  may  be  exercised  to  its  utmost  extent, 
"and  acknowledges  no  limitations  other  than  are  prescribed  in  thu  Ccm- 
stitution.  These  are  expressed  in  plain  terms,  and  do  not  affect  the 
questions  which  arise  in  this  case,  or  which  have  been  discussed  at 
the  bar.  If,  as  has  always  been  understood,  the^sovereignty  of  Con- 
gress,  though  limited  to  specified  objects,  is  plenai^^s^o^thOse^^F^ 
jects,  the  power  over  commerce  with  foreign  nations^  and  among__tlje^ 
several  States,  is  vested  in  Congress  as  absolutely  as  it  would  Tiein  a 
single  government,  having  in  its  constitution  the  same  restrictions 
on  the  exercise  of  the  power  as  are  found  in  the  Constitution  of  the 
vUnited  States.  The  wisdom  and  the  discretion  of  Congress,  their 
identity  wdth  the  people,  and  the  influence  which  their  constituents 
possess  at  elections,  are,  in  this,  as  in  many  other  instances,  as  that, 
for  example,  of  declaring  war,  the  sole  restraints  on  which  they  have 
relied,  to  secure  them  from  its  abuse.  They  are  the  restraints  on 
which  the  people  must  often  rely  solely,  in  all  representative  gov- 
ernments. 

The  power  of  Congress,  then,  comprehends  navigation  within  the 
limits  of  every  State  in  the  Union,  so  far  as  that  navigation  may  be, 
in  any  manner,  connected  with  "  commerce  with  foreign  nations,  or 
among  the  several  States,  or  with  the  Indian  tribes."  It  may,  of 
consequence,  pass  the  jurisdictional  line  of  New  York,  and  act  upon 
the  very  waters  to  which  the  prohibition  now  under  consideration 
applies. 

It  has  been  contended,  by  the  counsel  for  the  appellant,  that,  as 
the  word  to  "  regulate  "  implies  in  its  nature  full  power  ©ver  the 
thing  to  be  regulated,  it  excludes,  necessarily,  the  action  of  all  others 
that  would  perform  the  same  operation  on  the  same  thing.  That 
regulation  is  designed  for  the  entire  result,  applying  to  those  parts 
which  remain  as  they  were,  as  well  as  to  those  which  are  altered. 
It  produces  a  uniform  whole,  which  is  as  much  disturbed  and  deranged 
by  changing  what  the  regulating  power  designs  to  leave  untouched, 
as  that  on  which  it  has  operated. 

There  is  great  force  in  this  argument,  and  the  court  is  not  satisfied 
that  it  has  been  refuted. 

Since,  however,  in  exercising  the  power  of  regulating  their  own 
purely  internal  afifairs,  whether  of  trading  or  police,  the  States  may 


SECT.  II.  a. J  GIBBONS   V.   OGDEN.  243 

sometimes  enact  laws,  the  validity  of  which  depends  on  their  inter- 
fering with,  and  being  contrary  to,  an  act  of  Congress  passed  in  pur- 
suance of  the  Constitution,  the  court  will  enter  upon  the  inquiry, 
whether  the  laws  of  New  York,  as  expounded  by  the  highest  tribunal 
of  that  State,  have,  in  their  application  to  this  case,  come  into  col- 
lision with  an  act  of  Congress,  and  deprived  a  citizen  of  a  right  to 
which  that  act  entitles  him.  .  .   . 

It  has  been  contended  that,  if  a  law  passed  by  a  State,  in  the  ex- 
ercise of  its  acknowledged  sovereignty,  comes  into  conflict  with  a 
law  passed  by  Congress  in  pursuance  of  the  Constitution,  they  affect 
the  subject,  and  each  other,  like  equal  opposing  powers. 

But  the  framers  of  our  Constitution  foresaw  this  state  of  things, ' 
and  provided  for  it  by  declaring  the  supremacy  not  only  of  itself,  but 
ofthe  laws  made  in  pursuance  of  it.  Tlie  nullity  of  any  act,  incon- 
sistent with  the  Constitution,  is  produced  by  the  declaration  that  the 
Constitution  is  the  supreme  law.  The  appropriate  application  of  that 
part  of  the  clause  which  confers  the  same  supremacy  on  laws  and 
treaties,  is  to  such  acts  of  the  State  legislatures  as  do  not  transcend 
their  powers,  but,  though  enacted  in  the  execution  of  acknowledged 
State  powers,  interfere  with,  or  are  contrary  to,  the  laws  of  Congress, 
made  in  pursuance  of  the  Constitution,  or  some  treaty  made  under 
the  authority  of  the  United  States.  In  every  such  case  the  act 
of  Congress,  or  the  treaty,  is  supreme  ;  and  the  law  of  the  State, 
though  enacted  in  the  exercise  of  powers  not  controverted,  must 
yield  to  it. 

As  this  decides  the  cause,  it  is  unnecessary  to  enter  in  an  exami- 
nation of  that  part  of  the  Constitution  which  empowers  Congress  to 
promote  the  progress  of  science  and  the  useful  arts. 

The  court  is  aware  that,  in  stating  the  train  of  reasoning  by  which 
we  have  been  conducted  to  this  result,  much  time  has  been  consumed 
in  the  attempt  to  demonstrate  propositions  which  may  have  been 
thought  axioms.  It  is  felt  that  the  tediousness  inseparable  from  the 
endeavor  to  prove  that  which  is  already  clear,  is  imputable  to  a  con- 
siderable part  of  this  opinion.  But  it  was  unavoidable.  The  conclu- 
sion to  which  we  have  come  depends  on  a  chain  of  principles  which 
it  was  necessary  to  preserve  unbroken;  and,  although  some  of  them 
were  thought  nearly  self-evident,  the  magnitude  of  the  question,  the 
weight  of  character  belonging  to  those  from  whose  judgment  we  dis- 
sent, and  the  argument  at  the  bar,  demanded  that  we  should  assume 
nothing. 

Powerful  and  ingenious  minds,  taking  as  postulates  that  the  powers 
expressly  granted  to  the  government  of  the  Union  are  to  be  con- 
tracted by  construction  into  the  narrowest  possible  compass,  and 
that  the  original  powers  of  the  States  are  retained,  if  any  possible 
construction  will  retain  them,  may,  by  a  course  of  well-digested  but 
refined  and  metaphysical  reasoning  founded  on  these  premises,  ex- 


244  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

plain  away  the  Constitution  of  our  country,  and  leave  it  a  magnificent 
structure,  indeed,  to  look  at,  but  totally  unfit  for  use.  They  may  so 
entangle  and  perplex  the  understanding,  as  to  obscure  principles 
which  were  before  thought  quite  plain,  and  induce  doubts  where,  if 
the  mind  were  to  pursue  its  own  course,  none  would  be  perceived. 
In  such  a  case,  it  is  peculiarly  necessary  to  recur  to  safe  and  funda- 
mental principles  to  sustain  those  principles,  and,  when  sustained,  to 
make  them  the  tests  of  the  arguments  to  be  examined.^ 


HENDERSON  v.   MAYOR  OF  THE  CITY  OF  NEW  YORK. 

92  United  States,  259.     1875. 

[Appeals  from  decisions  of  Federal  courts,  one  in  New  York  and 
one  in  Louisiana,  involving  the  validity  of  State  immigration  laws. 
The  provisions  of  the  statutes  in  question  are  sufficiently  stated  in 
the  opinion.] 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

In  the  case  of  the  City  of  New  York  v.  Miln,  reported  in  11  Pet. 
103,  the  question  of  the  constitutionality  of  a  statute  of  the  State 
concerning  passengers  in  vessels  coming  to  the  port  of  New  York 
was  considered  by  this  court.  It  was  an  act  passed  Feb.  11,  1824, 
consisting  of  several  sections.  The  first  section,  the  only  one  passed 
upon  by  the  court,  required  the  master  of  every  ship  or  vessel  arriv- 
ing in  the  port  of  New  York  from  any  country  out  of  the  United 
States,  or  from  any  other  State  of  the  United  States,  to  make  report 
in  writing,  and  on  oath,  within  twenty-four  hours  after  his  arrival, 
to  the  mayor  of  the  city,  of  the  name,  place  of  birth,  last  legal  set- 
tlement, age,  and  occupation  of  every  person  brought  as  a  passenger 
from  any  country  out  of  the  United  States,  or  from  any  of  the  United 
States  into  the  port  of  New  York,  or  into  any  of  the  United  States, 
and  of  all  persons  landed  from  the  ship,  or  put  on  board,  or  suffered 
to  go  on  board,  any  other  vessel  during  the  voyage,  with  intent  of 
proceeding  to  the  city  of  New  York.  A  penalty  was  prescribed  of 
seventy-five  dollars  for  each  passenger  not  so  reported,  and  for  every 
person  whose  name,  place  of  birth,  last  legal  settlement,  age,  and 
occupation  should  be  falsely  reported. 

The  other  sections  required  him  to  give  bond,  on  the  demand  of 
the  mayor,  to  save  harmless  the  city  from  all  expense  of  support  and 
maiuteiiance  of  such  passenger,  or  to  return  any  passenger,  deemed 
liable  to  become  a  charge,  to  his  last  place  of  settlement;  and  re* 

1  Mb.  Justice  Johxson  delivered  a  concurriug  opinion. 


SECT.  II.  a.]         HENDERSON    V.    MAYOR   OF   NEW    YORK.  245 

quired  each  passenger,  not  a  citizen  of  the  United  States,  to  make 
report  of  himself  to  the  mayor,  stating  liis  age,  occupation,  the  name 
of  the  vessel  in  which  he  arrived,  the  place  where  he  landed,  and 
name  of  the  commander  of  the  vessel.  We  gather  from  the  report 
of  the  case  that  the  defendant,  Miln,  was  sued  for  the  penalties 
claimed  for  refusing  to  make  the  report  required  in  the  first  section. 
A  division  of  opinion  was  certified  by  the  judges  of  the  Circuit  Court 
on  the  question,  Avhether  the  act  assumes  to  regulate  commerce  be- 
tween the  port  of  New  York  and  foreign  ports,  and  is  unconstitu- 
tional and  void. 

This  Court,  expressly  limiting  its  decision  to  the  first  section  of 
the  act,  held  that  it  fell  within  the  police  powers  of  the  States,  and 
was  not  in  conflict  with  the  Federal  Constitution. 

From  this  decision  Mr,  Justice  Story  dissented,  and  in  his  opinion 
stated  that  Chief  Justice  IMarshall,  who  had  died  between  the  first 
and  the  second  argument  of  the  case,  fully  concurred  with  him  in  the 
view  that  the  statute  of  New  York  was  void,  because  it  was  a  regu- 
lation of  commerce  forbidden  to  the  States. 

In  the  Passenger  Cases,  reported  in  7  How.  283,  the  branch  of 
the  statute  not  passed  upon  in  the  preceding  case  came  under  consid- 
eration in  this  court.  It  was  not  the  same  statute,  but  was  a  law 
relating  to  the  marine  hospital  of  Staten  Island.  It  authorized  the 
health  commissioner  to  demand,  and,  if  not  paid,  to  sue  for  and  re- 
cover, from  the  master  of  every  vessel  arriving  in  the  port  of  New 
York  from  a  foreign  port  one  dollar  and  fifty  cents  for  each  cabin 
passenger,  and  one  dollar  for  each  steerage  passenger,  mate,  sailor, 
or  mariner,  and  from  the  master  of  each  coasting  vessel  twenty-five 
cents  for  each  person  on  board.  These  moneys  were  to  be  appro- 
priated to  the  use  of  the  hospital. 

The  defendant,  Smith,  who  was  sued  for  the  sum  of  $295  for 
refusing  to  pay  for  295  steerage  passengers  on  board  the  British  ship 
"Henry  Bliss,"  of  which  he  was  master,  demurred  to  the  declaration 
on  the  ground  that  the  act  was  contrary  to  the  Constitution  of  the 
United  States,  and  void.  From  a  judgment  against  him,  affirmed 
in  the  Court  of  Errors  of  the  State  of  New  York,  he  sued  out  a  writ 
of  error,  on  which  the  question  was  brought  to  this  court. 

It  was  here  held,  at  the  January  Term,  1849,  that  the  statute  was 
"repugnant  to  the  Constitution  and  laws  of  the  United  States,  and 
therefore  void."     7  How.  572. 

Immediately  after  this  decision,  the  State  of  New  York  modified 
her  statute  on  that  subject,  with  a  view,  no  doubt,  to  avoid  the 
constitutional  objection ;  and  amendments  and  alterations  have  con- 
tinued to  be  made  up  to  the  present  time. 

As  the  law  now  stands,  the  master  or  owner  of  every  vessel  land- 
ing passengers  from  a  foreign  port  is  bound  to  make  a  report  similar 
to  the  one  recited  in  the  statute  held  to  be  valid  in  the  case  of  New 
York  V.  Miln ;  and  on  this  report  the  mayor  is  to  indorse  a  demand 


246  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

upon  the  master  or  owner  that  he  give  a  bond  for  every  passenger 
landed  in  tlie  city,  in  the  penal  sum  of  i^oOO,  conditioned  to  indem- 
nify the  Commissioners  of  Emigration,  and  every  county,  city,  and 
town  in  the  State,  against  any  expense  for  the  relief  or  support  of 
the  person  named  in  the  bond  for  four  years  thereafter;  but  the 
owner  or  consignee  may  commute  for  such  bond,  and  be  released 
from  giving  it,  by  paying,  within  twenty-four  hours  after  the  land- 
ing of  the  passengers,  the  sum  of  one  dollar  and  fifty  cents  for  each 
one  of  them.  If  neither  the  bond  be  given  nor  the  sum  paid  within 
the  twenty-four  hours,  a  penalty  of  $500  for  each  pauper  is  incurred, 
which  is  made  a  lien  on  the  vessel,  collectible  by  attachment  at  the 
suit  of  the  Commissioner  of  Emigration. 

Conceding  the  authority  of  the  Passenger  Cases  which  will  be 
more  fully  considered  hereafter,  it  is  argued  that  the  change  in  the 
statute  now  relied  upon  requiring  primarily  a  bond  for  each  passen- 
ger landed,  as  an  indemnity  against  his  becoming  a  future  charge 
to  the  State  or  county,  leaving  it  optional  with  the  ship-owner  to 
avoid  this  by  paying  a  fixed  sum  for  each  passenger,  takes  it  out  of 
the  principle  of  the  case  of  Smith  v.  Turner,  — the  Passenger  Case 
from  New  York.  It  is  said  that  the  statute  in  that  case  was  a  direct 
tax  on  the  passenger,  since  the  act  authorized  the  shipmaster  to  col- 
lect it  of  him,  and  that  on  that  ground  alone  was  it  held  void;  while 
in  the  present  case  the  requirement  of  the  bond  is  but  a  suitable 
regulation  under  the  power  of  the  State  to  protect  its  cities  and  towns 
from  the  expense  of  supporting  persons  who  are  paupers  or  diseased, 
or  helpless  women  and  children,  coming  from  foreign  countries. 

In  whatever  language  a  statute  may  be  framed,  its  purpose  must 
be  determined  by  its  natural  and  reasonable  effect;  and  if  it  is 
apparent  that  the  object  of  this  statute,  as  judged  by  that  criterion, 
is  to  compel  the  owners  of  vessels  to  pay  a  sum  of  money  for  every 
passenger  brought  by  them  from  a  foreign  shore,  and  landed  at  the 
port  of  New  York,  it  is  as  much  a  tax  on  passengers  if  collected 
from  them,  or  a  tax  on  the  vessel  or  owners  for  the  exercise  of  the 
right  of  landing  their  passengers  in  that  city,  as  was  the  statute  held 
void  in  the  Passenger  Cases. 

To  require  a  heavy  and  almost  impossible  condition  to  the  exercise 
of  this  right,  with  the  alternative  of  payment  of  a  small  sum  of 
money,  is,  in  effect,  to  demand  payment  of  that  sum.  To  suppose 
that  a  vessel,  which  once  a  month  lands  from  three  hundred  to  one 
thousand  passengers,  or  from  three  thousand  to  twelve  thousand  per 
annum,  will  give  that  many  bonds  of  $300  with  good  sureties,  with 
a  covenant  for  four  years,  against  accident,  disease,  or  poverty  of  the 
passenger  named  in  such  bond,  is  absurd,  when  this  can  be  avoided 
by  the  payment  of  one  dollar  and  fifty  cents  collected  of  the  passen- 
ger before  he  embarks  on  the  vessel. 

Such  bonds  would  amount  in  many  instances,  for  every  voyage, 
to  more   than  the  value  of  the  vessel.     The  liability  on  the  bond 


SECT.  II.  a.]  HENDERSON    V.   MAYOR   OF   NEW    YORK.  247 

would  be,  through  along  lapse  of  time,  contingent  on  circumstances 
which  the  bondsman  could  neither  foresee  nor  control.  The  cost  of 
preparing  the  bond  and  approving  sureties,  with  the  trouble  inci- 
dent to  it  in  each  case,  is  greater  than  the  sum  required  to  be  paid 
as  commutation.  It  is  inevitable,  under  such  a  law,  that  the  money 
would  be  paid  for  each  passenger,  or  the  statute  resisted  or  evaded. 
It  is  a  law  in  its  purpose  and  effect  imposing  a  tax  on  the  owner  of 
the  vessel  for  the  privilege  of  landing  in  New  York  passengers  trans- 
ported from  foreign  countries. 

It  is  said  that  the  purpose  of  the  act  is  to  protect  the  State  against 
the  consequences  of  the  flood  of  pauperism  immigrating  from  Europe, 
and  first  lauding  in  that  city. 

But  it  is  a  strange  mode  of  doing  this  to  tax  every  passenger  alike 
who  comes  from  abroad.  The  man  who  brings  with  him  important 
additions  to  the  wealth  of  the  country,  and  the  man  who  is  perfectly 
free  from  disease,  and  brings  to  aid  the  industry  of  the  country  a 
stout  heart  and  a  strong  arm,  are  as  much  the  subject  of  the  tax  as 
the  diseased  pauper  who  may  become  the  object  of  the  charity  of 
the  city  the  day  after  he  lands  from  the  vessel. 

-No  just  rule  can  make  the  citizen  of  France  landing  from  an  Eng- 
lish vessel  on  our  shore  liable  for  the  support  of  an  English  or  Irish 
pauper  who  lands  at  the  same  time  from  the  same  vessel. 

So  far  as  the  authority  of  the  cases  of  New  York  v.  Miln  and  Pas- 
senger Cases  can  be  received  as  conclusive,  they  decide  that  the 
requirement  of  a  catalogue  of  passengers,  with  statements  of  their 
last  residence,  and  other  matters  of  that  character,  is  a  proper  exer- 
cise of  State  authority  and  that  the  requirement  of  the  bond,  or  the 
alternative  payment  of  money  for  each  passenger,  is  void,  because 
forbidden  by  the  Constitution  and  laws  of  the  United  States.  But 
the  Passenger  Cases  (so  called  because  a  similar  statute  of  the 
State  of  Massachusetts  was  the  subject  of  consideration  at  the  same 
term  with  that  of  New  York)  were  decided  by  a  bare  majority  of 
the  court.  Justices  IVIcLean,  Wayne,  Catron,  McKinley,  and  Grier 
held  both  statutes  void;  while  Chief  Justice  Taney,  and  Justices 
Daniel,  Nelson,  and  Woodbury,  held  them  valid.  Each  member  of 
the  court  delivered  a  separate  opinion,  giving  the  reasons  for  his 
judgment,  except  Judge  Nelson,  none  of  them  professing  to  be  the 
authoritative  opinion  of  the  court.  Nor  is  there  to  be  found,  in  the 
reasons  given  by  the  judges  who  constituted  the  majority,  such  har- 
mony of  views  as  would  give  that  weight  to  the  decision  which  it 
lacks  by  reason  of  the  divided  judgments  of  the  members  of  the 
court.  Under  these  circumstances,  with  three  cases  before  us  aris- 
ing under  statutes  of  three  different  States  on  the  same  subject, 
which  have  been  discussed  as  though  open  in  this  court  to  all  con- 
siderations bearing  upon  the  question,  we  approach  it  with  the  hope 
of  attaining  a  unanimity  not  found  in  the  opinions  of  our  prede- 
cessors. 


248  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

As  already  indicated,  the  provisions  of  the  Constitution  of  the 
United  States,  on  which  the  principal  reliance  is  placed  to  make 
void  the  statute  of  New  York,  is  that  which  gives  to  Congress  the 
power  "to  regulate  commerce  with  foreign  nations."  As  was  said 
in  United  States  v.  Holliday,  3  Wall.  417,  "commerce  with  foreign 
nations  means  commerce  between  citizens  of  the  United  States  and 
citizens  or  subjects  of  foreign  governments."  It  means  trade,  and  it 
means  intercourse.  It  means  commercial  intercourse  between 
nations,  and  parts  of  nations,  in  all  its  branches.  It  includes  navi- 
gation, as  the  principal  means  by  which  foreign  intercourse  is 
effected.  To  regulate  this  trade  and  intercourse  is  to  prescribe  the 
rules  by  which  it  shall  be  conducted.  "The  mind,"  says  the  great 
Chief  Justice,  "can  scarcely  conceive  a  system  for  regulating  com- 
merce between  nations  which  shall  exclude  all  laws  concerning  navi- 
gation, which  shall  be  silent  on  the  admission  of  the  vessels  of  one 
nation  into  the  ports  of  another;"  and  he  might  have  added,  with 
equal  force,  which  prescribed  no  terms  for  the  admission  of  their 
cargo  or  their  passengers.     Gibbons  v.  Ogden,  9  Wheat.  190. 

Since  the  delivery  of  the  opinion  in  that  case,  which  has  become 
the  accepted  canon  of  construction  of  this  clause  of  the  Constitution, 
as  far  as  it  extends,  the  transportation  of  passengers  from  European 
ports  to  those  of  the  United  States  has  attained  a  magnitude  and 
importance  far  beyond  its  proportion  at  that  time  to  other  branches 
of  commerce.  It  has  become  a  part  of  our  commerce  with  foreign 
nations,  of  vast  interest  to  this  country,  as  well  as  to  the  immigrants 
who  come  among  us  to  find  a  welcome  and  a  home  within  our  bor- 
ders. In  addition  to  the  wealth  which  some  of  them  bring,  they 
bring  still  more  largely  the  labor  which  we  need  to  till  our  soil, 
build  our  railroads,  and  develop  the  latent  resources  of  the  country 
in  its  minerals,  its  manufactures,  and  its  agriculture.  Is  the  regu- 
lation of  this  great  system  a  regulation  of  commerce  ?  Can  it  be 
doubted  that  a  law  which  prescribes  the  terms  on  which  vessels 
shall  engage  in  it  is  a  law  regulating  this  branch  of  commerce  ? 

The  transportation  of  a  passenger  from  Liverpool  to  the  city  of 
New  York  is  one  voyage.  It  is  not  completed  until  the  passenger 
is  disembarked  at  the  pier  in  the  latter  city.  A  law  or  a  rule 
emanating  from  any  lawful  authority,  which  prescribes  terms  or 
conditions  on  which  alone  the  vessel  can  discharge  its  passengers, 
is  a  regulation  of  commerce;  and,  in  case  of  vessels  and  passengers 
coming  from  foreign  ports,  is  a  regulation  of  commerce  with  foreign 
nations. 

The  accuracy  of  these  definitions  is  scarcely  denied  by  the  advo- 
cates of  the  State  statutes.  But  assuming  that,  in  the  formation 
of  our  government,  certain  powers  necessary  to  the  administration 
of  their  internal  affairs  are  reserved  to  the  States,  and  that  among 
these  poweTs  are  those  for  the  preservation  of  good  order,  of  the 
health  and  comfort  of  the  citizens,  and  their  protection  against  pau- 


SECT.  II.  a.]         HENDERSON   V.   MAYOR   OF   NEW   YORK. 


249 


perism  and  against  contagious  and  infectious  diseases,  and  other 
matters  of  legislation  of  like  character,  they  insist  that  the  power 
here  exercised  falls  within  this  class,  and  belongs  rightfully  to  the 
States. 

This  power,  frequently  referred  to  in  the  decisions  of  this  court, 
has  been,  in  general  terms,  somewhat  loosely  called  the  police 
power.  It  is  not  necessary  for  the  course  of  this  discussion  to  at- 
tempt to  define  it  more  accurately  than  it  has  been  defined  already. 
It  is  not  necessary,  because  whatever  may  be  the  nature  and  extent 
of  that  power,  where  not  otherwise  restricted,  no  definition  of  it,  and 
no  urgency  for  its  use,  can  authorize  a  State  to  exercise  it  in  regard 
to  a  subject-matter  wliich  has  been  confided  exclusively  to  the  dis- 
cretion of  Congress  by  the  Constitution. 

Nothing  is  gained  in  the  argument  by  calling  it  the  police  power. 
Very  many  statutes,  when  the  authority  on  which  their  enactments 
rest  is  examined,  may  be  referred  to  different  sources  of  power  and 
supported  equally  well  under  any  of  them.  A  statute  may  at  the 
same  time  be  an  exercise  of  the  taxing  power  and  of  the  power 
of  eminent  domain.  A  statute  punishing  counterfeiting  may  be  for 
the  protection  of  the  private  citizen  against  fraud,  and  a  measure  for 
the  protection  of  the  currency  and  for  the  safety  of  the  government 
which  issues  it.  It  must  occur  very  often  that  the  shading  which 
marks  the  line  between  one  class  of  legislation  and  another  is  very 
nice,  and  not  easily  distinguishable. 

But,  however  difficult  this  may  be,  it  is  clear,  from  the  nature  of 
our  complex  form  of  government,  that  whenever  the  statute  of  a 
State  invades  the  domain  of  legislation  which  belongs  exclusively  to 
the  Congress  of  the  United  States,  it  is  void,  no  matter  under  what 
class  of  powers  it  may  fall,  or  how  closely  allied  to  powers  conceded 
to  belong  to  the  States. 

"It  has  been  contended,"  says  Marshall,  C.  J.,  "that  if  a  law 
passed  by  a  State,  in  the  exercise  of  its  acknowledged  sovereignty, 
comes  into  conflict  with  a  law  passed  by  Congress  in  pursuance  of 
the  Constitution,  they  affect  the  subject  and  each  other  like  equal 
opposing  powers.  But  the  framers  of  our  Constitution  foresaw  this 
state  of  things,  and  provided  for  it  by  declaring  the  supremacy, 
not  only  of  itself,  but  of  the  laws  made  in  pursuance  thereof. 
The  nullity  of  any  act  inconsistent  with  the  Constitution  is  pro- 
duced by  the  declaration  that  the  Constitution  is  supreme."  Where 
the  Federal  Government  has  acted,  he  says,  "  In  every  such  case  the 
act  of  Congress  or  the  treaty  is  supreme ;  and  the  laws  of  the  State, 
though  enacted  in  the  exercise  of  powers  not  controverted,  must 
yield  to  it."     9  Wheat.  210. 

It  is  said,  however,  that,  under  the  decisions  of  this  court,  there 
is  a  kind  of  neutral  ground,  especially  in  that  covered  by  the  regu- 
lation of  commerce,  which  may  be  occupied  by  the  State,  and  its 
legislation  be  valid  so  long  as  it  interferes  with  no  act  of  Congress, 


250  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

or  1;reaty  of  the  United  States.  Such  a  proposition  is  supported  by 
tlie  opinions  of  several  of  the  judges  in  the  Passenger  Cases;  by  the 
decisions  of  this  court  in  Cooly  v.  The  Board  of  Wardens,  12  How. 
299;  and  by  the  cases  of  Crandall  v.  Nevada,  6  Wall.  35,  and  Giluian 
V.  Philadelphia,  3  Wall.  713.  But  this  doctrine  has  always  been 
controverted  in  this  court,  and  has  seldom,  if  ever,  been  stated  Avith- 
out  dissent.  These  decisions,  however,  all  agree,  that  under  the 
commerce  clause  of  the  Constitution,  or  within  its  compass,  there 
are  powers,  which,  from  their  nature,  are  exclusive  in  Congress;  and, 
in  the  case  of  Cooly  v.  The  Board  of  Wardens,  it  was  said,  that 
"whatever  subjects  of  this  power  are  in  their  nature  national,  or 
admit  of  one  uniform  system  or  plan  of  regulation,  may  justly  be 
said  to  be  of  such  a  nature  as  to  require  exclusive  legislation  by 
Congress."  A  regulation  which  imposes  onerous,  perhaps  impossi- 
ble, conditions  on  those  engaged  in  active  commerce  with  foreign 
nations,  must  of  necessity  be  national  in  its  character.  It  is  more 
than  this;  for  it  may  properly  be  called  international.  It  belongs 
to  that  class  of  laws  which  concern  the  exterior  relation  of  this  whole 
nation  with  other  nations  and  governments.  If  our  government 
should  make  the  restrictions  of  these  burdens  on  commerce  the  sub- 
ject of  a  treaty,  there  could  be  no  doubt  that  such  a  treaty  would  fall 
within  the  power  conferred  on  the  President  and  the  Senate  by  the 
Constitution.  It  is  in  fact,  in  an  eminent  degree,  a  subject  which 
concerns  our  international  relations,  in  regard  to  which  foreign 
nations  ought  to  be  considered  and  their  rights  respected,  whether 
the  rule  be  established  by  treaty  or  by  legislation. 

It  is  equally  clear  that  the  matter  of  these  statutes  may  be,  and 
ought  to  be,  the  subject  of  a  uniform  system  or  plan.  The  laws 
which  govern  the  right  to  land  passengers  in  the  United  States  from 
other  countries  ought  to  be  the  same  in  New  York,  Boston,  New 
Orleans,  and  San  Francisco.  A  striking  evidence  of  the  truth  of  this 
proposition  is  to  be  found  in  the  similarity,  we  might  almost  say  in 
the  identity,  of  the  statutes  of  New  York,  of  Louisiana,  and  Cali- 
fornia, now  before  us  for  consideration  in  these  three  cases. 

It  is  apparent,  therefore,  that,  if  there  be  a  class  of  laws  which 
may  be  valid  when  passed  by  the  States  until  the  same  ground  is 
occupied  by  a  treaty  or  an  act  of  Congress,  this  statute  is  not  of 
that  class. 

The  argument  has  been  pressed  with  some  earnestness,  that  inas- 
much as  this  statute  does  not  come  into  operation  until  twenty-four 
hours  after  the  passenger  has  landed,  and  has  mingled  with,  or  has 
the  right  to  mingle  with,  the  mass  of  the  population,  he  is  with- 
drawn from  the  influence  of  any  laws  which  Congress  might  pass  on 
the  subject,  and  remitted  to  the  laws  of  the  State  as  its  own  citizens 
are.  It  might  be  a  sufficient  answer  to  say  that  this  is  a  mere  eva- 
sion of  the  protection  which  the  foreigner  has  a  right  to  expect  from 
the   Federal   Government  when  he  lands   here  a  stranger,    owing 


SECT.  II.  a.]  HENDERSON    V.   MAYOR   OF   NEW    YORK. 


251 


allegiance  to  another  government,  and  looking  to  it  for  such  protec- 
tion as  grows  out  of  his  relation  to  that  government. 

But  the  branch  of  the  statute  which  we  are  considering  is  directed 
to  and  operates  directly  on  the  ship-owner.  It  holds  him  respon- 
sible for  what  he  has  done  before  the  twenty-four  hours  commence. 
He  is  to  give  the  bond  or  pay  the  money  because  he  has  lauded 
the  j)assenger,  and  he  is  given  twenty-four  hours'  time  to  do  this 
before  the  penalty  attaches.  When  he  is  sued  for  this  penalty,  it  is 
not  because  the  man  has  been  here  twenty-four  hours,  but  because 
he  brought  him  here,  and  failed  to  give  the  bond  or  pay  one  dollar 
and  fifty  cents. 

The  effective  operation  of  this  law  commences  at  the  other  end  of 
the  voyage.  The  master  requires  of  the  passenger,  before  he  is 
admitted  on  board,  as  a  part  of  the  passage-money,  the  sum  which 
he  knows  he  must  pay  for  the  privilege  of  landing  him  in  New 
York.  It  is,  as  we  have  already  said,  in  effect,  a  tax  on  the  passen- 
ger, which  he  pays  for  the  right  to  make  the  voyage,  —  a  voyage 
only  completed  when  he  lands  on  the  American  shore.  The  case 
does  not  even  require  us  to  consider  at  what  period  after  his  arrival 
the  passenger  hin)self  passes  from  the  sole  protection  of  the  Consti- 
tution, laws,  and  treaties  of  the  United  States,  and  becomes  subject 
to  such  laws  as  the  State  may  rightfully  pass,  as  was  the  case  in 
regard  to  importations  of  merchandise  in  Brown  v.  Maryland,  12 
Wheat.  417,  and  in  the  License  Cases,  5  How.  504. 

It  is  too  clear  for  argument  that  this  demand  of  the  owner  of  the 
vessel  for  a  bond  or  money  on  account  of  every  passenger  landed  by 
him  from  a  foreign  shore  is,  if  valid,  an  obligation  which  he  incurs 
by  bringing  the  passenger  here,  and  which  is  perfect  the  moment  he 
leaves  the  vessel. 

We  are  of  opinion  that  this  whole  subject  has  been  confided  to 
Congress  by  the  Constitution;  that  Congress  can  more  appropriately 
and  with  more  acceptance  exercise  it  than  any  other  body  known 
to  our  law.  State  or  national;  that  by  providing  a  system  of  laws 
in  these  matters,  applicable  to  all  ports  and  to  all  vessels,  a  serious 
question,  which  has  long  been  matter  of  contest  and  complaint,  may 
be  effectually  and  satisfactorily  settled. 

Whether,  in  the  absence  of  such  action,  the  States  can,  or  how 
far  they  can,  by  appropriate  legislation,  protect  themselves  against 
actual  paupers,  vagrants,  criminals,  and  diseased  persons,  arriving 
in  their  territory  from  foreign  countries,  we  do  not  decide.  The 
portions  of  the  New  York  statute  which  concern  persons  who,  on 
inspection,  are  found  to  belong  to  these  classes  are  not  properly  be- 
fore us,  because  the  relief  sought  is  to  the  part  of  the  statute  appli- 
cable to  all  passengers  alike,  and  is  the  only  relief  which  can  be 
given  on  this  bill. 

The  decree  of  the  Circuit  Court  of  New  York,  in  the  case  of  Hen- 
derson et  al.  V.  Mayor  of  the  City  of  New  York  et  al.,  is  reversed, 


252  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IT. 

and  the  case  remanded,  with  direction  to  enter  a  decree  for  an  injunc- 
tion in  accordance  with  this  opinion. 

The  statute  of  Louisiana,  which  is  involved  in  the  case  of  Commis- 
sioners of  Immigration  v.  North  German  Lloyd,  is  so  very  similar 
to,  if  not  an  exact  copy  of,  that  of  New  York,  as  to  need  no  separate 
consideration.  In  this  case  the  relief  sought  was  against  exacting 
the  bonds  or  paying  the  commutation-money  as  to  all  passengers, 
which  relief  the  Circuit  Court  granted  by  an  appropriate  injunction; 
and  the  decree  in  that  case  is  accordingly  affirmed.^ 


N^  (yJUj^rs/jL 


PENSACOLA  TELEGKAPH  COMPANY  v.   WESTEKN  UNION 
TELEGKAPH  COMPANY. 

96  United  States,  1.     1877. 

[Plaintiff  sought  in  the  Circuit  Court  of  the  United  States  for 
Florida  to  enjoin  the  defendant  from  constructing  a  line  of  telegraph 
through  the  State  to  Pensacola,  claiming  an  exclusive  privilege  to 
maintain  such  a  line  by  virtue  of  State  legislation.  The  bill  being 
dismissed,  plaintiff  appealed  to  this  Court.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

Congress  has  power  "to  regulate  commerce  with  foreign  nations 

and  among  the  several  States  "  (Const,  art.  1,  sect.  8,  par.  3) ;  and 

/'to  establish  post-offices  and  post-roads"  (id.,  par.  7).     The  Consti- 

'  tution  of  the  United  States  and  the  laws  made  in  pursuance  thereof 

/  are  the  supreme  law  of  the  land.    Art.  6,  par.  2.     A  law  of  Congress 

/made  in  pursuance  of  the  Constitution^ suspends  or  overrides  all 

'  State  statutes  with  which  it  is  in  conflict. 

Since  the  case  of  Gibbons  v.  Ogden,  9  Wheat.  1,  it  has  never  been 
doubted  that  commercial  intercourse  is  an  element  of  commerce 
which  comes  within  the  regulating  power  of  Congress.  Post-offices 
and  post-roads  are  established  to  facilitate  the  transmission  of  intelli- 
gence.    Both  commerce  and  the  postal  service  are  placed  within  the 

J  A  tax  on  passengers  cannot  be  exacteil  under  a  State  law  purporting  to  provide 
for  inspection.  The  provisions  of  U.  S.  Const.  Art.  1,  sec.  10,  cl.  2,  as  to  State  inspec- 
tion do  not  apply  to  persons.  People  v.  Compagnie  Generale  Transatlantique,  107 
U.  S.  59. 

But  under  the  commerce  clause  Congress  has  power  to  regulate  immigration,  and 
a  statute  (August  3,  1882,  22  Stat.  214),  providing  for  the  collection  by  the  United 
States  Collector  at  each  port  of  the  sum  of  fifty  cents  for  each  passenger,  not  a  citizen 
of  the  United  States,  who  shall  come  to  that  port  by  steam  or  sailing  vessel  from  a 
foreign  port,  to  be  paid  by  the  master  or  owner  of  the  vessel,  such  money  to  be  turned 
into  the  United  States  Treasury  to  constitute  an  immigration  fund  to  be  used  to  defray 
the  expense  of  regulating  immigration  and  for  the  care  of  immigrants,  and  to  relieve 
such  as  are  in  distress,  was  held  to  be  valid  as  a  regulation  of  comm'erce  and  not  open 
to  the  objection  that  it  is  a  tax  not  uniform.     Head  Money  Cases,- 112  U.  S.  580. 


SECT.  II.  a.]       PENSACOLA  TEL.  CO.  V.  WESTERN  UNION  TEL.  CO.         253 

power  of  Congress,  because,  being  national  in  their  operation,  they 
should  be  under  the  protecting  care  of  the  national  government. 

The  powers  thus  granted  are  not  confined  to  the  instrumentalities 
of  commerce,  or  the  postal  service  known  or  in  use  when  the  Consti- 
tution was  adopted,  but  they  keep  pace  with  the  progress  of  the 
country,  and  adapt  themselves  to  the  new  developments  of  time  and 
circumstances.  They  extend  from  the  horse  with  its  rider  to  the 
stage-coach,  from  the  sailing-vessel  to  the  steamboat,  from  the  coach 
and  the  steamboat  to  the  railroad,  and  from  the  railroad  to  the  tele- 
graph,  as  these  new  agencies  are  successively  brought  into  use  to 
meet  the  demands  of  increasing  population  and  wealth.  They  were 
intended  for  the  government  of  the  business  to  which  they  relate,  at 
all  times  and  under  all  circumstances.  As  they  were  intrusted  to  the 
general  government  for  the  good  of  the  nation,  it  is  not  only  the 
right,  but  the  duty,  of  Congress  to  see  to  it  that  the  intercourse 
among  the  States  and  the  transmission  of  intelligence  are  not  ob- 
structed or  unnecessarily  encumbered  by  State  legislation. 

The  electric  telegraph  marks  an  epoch  in  the  progress  of  time.  In  ' 
a  little  more  than  a  quarter  of  a  century  it  has  changed  the  habits  of  ■ 
business,  and  become  one  of  the  necessities  of  commerce.  It  is  indis- 
pensable as  a  means  of  inter-communication,  but  especially  is  it  so  in 
commercial  transactions.  The  statistics  of  the  business  before  the 
recent  reduction  in  rates  show  that  more  than  eighty  per  cent  of  all 
the  messages  sent  by  telegraph  related  to  commerce.  Goods  are  sold 
and  money  paid  upon  telegraphic  orders.  Contracts  are  made  by 
telegraphic  correspondence,  cargoes  secured,  and  the  movement  of 
ships  directed.  The  telegraphic  announcement  of  the  markets  abroad 
regulates  prices  at  home,  and  a  prudent  merchant  rarely  enters  upou 
an  important  transaction  without  using  the  telegraph  freely  to  secure 
information. 

It  is  not  only  important  to  the  people,  but  to  the  government.    By 
means  of  it  the  heads  of  the  departments  in  Washington  are  kept  in 
close  communication   with  all    the    various    agencies   at   home   and 
abroad,  and  can  know  at  almost  any  hour,  by  inquiry,  what  is  trans- 
piring anywhere  that  affects  the  interest  they  have  in  charge.   Under 
such  circumstances,  it  cannot  for  a  moment  be  doubted  that  this  ■ 
powerful  agency  of  commerce  and  inter-communication  comes  witliin  | 
the  controlling  power  of  Congress,  certainly  as  against  hostile  State/ 
legislation.     In  fact,  from  the  beginning,  it  seems  to  have  been  as- 
sumed that  Congress  might  aid  in  developing  the  system ;  for  the 
first  telegraph  line  of  any  considerable  extent  ever  erected  was  built 
between  Washington  and  Baltimore,  only  a  little  more  than  thirty 
years  ago,  with  money  appropriated  by  Congress  for  that  purpose 
(5  Stat.  618);  and  large  donations  of  land  and  money  have  since  been 
made  to  aid  in  the  construction  of  other  lines  (12  id.  489,  772;  13 
id.  365;  14  id.  292).     It  is  not  necessary  now  to  inquire  wliether  / 
Congress  may  assume  the  telegraph  as  part  of  the  postal  service,  and 


r7 


054  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

exclude  all  others  from  its  use.  The  present  case  is  satisfied,  if  we 
find  that  Congress  has  power,  by  appropriate  legislation,  to  prevent 
the  States  from  placing  obstructions  in  the  way  of  its  usefulness. 

The  crovernment  of  the  United  States,  within  the  scope  of  its 
powersj^'operates  upon  every  foot  of  territory  under  its  jurisdiction. 
It  le'nslates  for  the  whole  nation,  and  is  not  embarrassed  by  State 
lines.  Its  peculiar  duty  is  to  protect  one  part  of  the  country  from 
encroachments  by  another  upon  the  national  rights  which  belong 

to  all. 

The  State  of  Florida  has  attempted  to  confer  upon  a  single  corpo- 
ration the  exclusive  right  of  transmitting  intelligence  by  telegraph 
over  a  certain  portion  of  its  territory.  This  embraces  the  two  west- 
ernmost counties  of  the  State,  and  extends  from  Alabama  to  the 
Gulf.  ]Sro  telegraph  line  can  cross  the  State  from  east  to  west,  or 
from  north  to  south,  within  these  counties,  except  it  passes  over  this 
territory.  Within  it  is  situated  an  important  seaport,  at  which  busi- 
ness centres,  and  with  which  those  engaged  in  commercial  pursuits 
have  occasion  more  or  less  to  communicate.  The  United  States  have 
there  also  the  necessary  machinery  of  the  national  government.  They 
have  a  navy-yard,  forts,  custom-houses,  courts,  post-offices,  and  the 
appropriate  officers  for  the  enforcement  of  the  laws.  The  legisla- 
tion of  Florida,  if  sustained,  excludes  all  commercial  intercourse  by 
telegraph  between  the  citizens  of  the  other  States  and  those  residing 
upon  this  territory,  except  by  the  employment  of  this  corporation. 
The  United  States  cannot  communicate  with  their  own  ofticers  by 
telegraph  except  in  the  same  way.     The  State,  therefore,  clearly  has 

/attempted  to  regulate  commercial  intercourse  between  its  citizens  and 

I  those  of  other  States,  and  to  control  the  transmission  of  all  telegraphic 

\  correspondence  within  its  own  jurisdiction. 

It  is  unnecessary  to  decide  how  far  this  might  have  been  done  if 
Congress  had  not  acted  upon  the  same  subject,  for  it  has  acted.  The 
statute  of  July  24,  1866,  in  effect,  amounts  to  a  prohibition  of  all 
State  monopolies  in  this  particular.  It  substantially  declares,  in  the 
linterest  of  commerce  and  the  convenient  transmission  of  intelligence 

'  from  place  to  place  by  the  government  of  the  United  States  and  its 
citizens,  that  the  erection  of  telegraph  lines  shall,  so  far  as  State  inter- 
ference is  concerned,  be  free  to  all  who  will  submit  to  the  conditions 
imposed  by  Congress,  and  that  corporations  organized  under  the  laws 
of  one  State  for  constructing  and  operating  telegraph  lines  shall  not 
be  excluded  by  another  from  prosecuting  their  business  within  its 
jurisdiction,  if  they  accept  the  terms  proposed  by  the  national  gov- 
jernment  for  this  national  privilege.  To  this  extent,  certainly,  the 
''statute  is  a  legitimate  regulation  of  commercial  intercourse  among  the 
States,  and  is  appropriate  legislation  to  carry  into  execution  the  powers 
of  Congress  over  tjiej)ostal  service.  It  gives  no  foreign  corporation 
the  right  to  Vntir^upmT^mvate'property  without  the  consent  of  the 
owner  and  erect  the  necessary  structures  for  its  business  ;  but  it  does 


SECT.  II.  a.]       PENSACOLA  TEL.  CO.  V.  WESTERN  UNION  TEL.  CO.  255 

provide,   that,  whenever  the  consent  of  the  owner  is  obtained,  no 
State  legislation  shall  prevent  the  occupation  of  post-roads  for  tele-  | 
graph  purposes  by  such  corporations  as  are  willing  to  avail  them- 
selves of  its  privileges. 

It  is  insisted,  however,  that  the  statute  extends  only  to  such  mili- 
tary and  post-roads  as  are  upon  the  public  domain ;  but  this,  we  think, 
is  not  so.  The  language  is,  "  Through  and  over  any  portion  of  the 
public  domain  of  the  United  States,  over  and  along  any  of  the  mili- 
tary or  post-roads  of  the  United  States  which  have  been  or  may 
hereafter  be  declared  such  by  act  of  Congress,  and  over,  under,  or 
across  the  navigable  streams  or  waters  of  the  United  States."  There 
is  nothing  to  indicate  an  intention  of  limiting  the  effect  of  the  words 
employed,  and  they  are,  therefore,  to  be  given  their  natural  and 
ordinary  signification.  Read  in  this  way,  the  grant  evidently  extends 
to  the  public  domain,  the  military  and  post-roads,  and  the  naviga- 
ble waters  of  the  United  States.  These  are  all  within  the  dominion 
of  the  national  government  to  the  extent  of  the  national  powers,  and 
are,  therefore,  subject  to  legitimate  congressional  regulation.  No 
question  arises  as  to  the  authority  of  Congress  to  provide  for  the 
appropriation  of  private  property  to  the  uses  of  the  telegraph,  for  no 
such  attempt  has  been  made.  The  use  of  public  property  alone  is// 
granted.  If  private  property  is  required,  it  must,  so  far  as  thai 
present  legislation  is  concerned,  be  obtained  by  private  arrangement ) 
with  its  owner.  No  compulsory  proceedings  are  authorized.  State 
sovereignty  under  the  Constitution  is  not  interfered  with.  Only 
national  privileges  are  granted. 

The  State  law  in  question,  so  far  as  it  confers  exclusive  rights 
upon  the  Pensacola  Company,  is  certainly  in  conflict  with  this  legis- 
lation of  Congress.  To  that  extent  it  is,  therefore,  inoperative  as 
against  a  corporation  of  another  State  entitled  to  the  privileges  of 
the  act  of  Congress.  Such  being  the  case,  the  charter  of  the  Pensa- 
cola Company  does  not  exclude  the  Western  Union  Company  from 
the  occupancy  of  the  right  of  way  of  the  Pensacola  and  Louisville 
Railroad  Company  under  the  arrangement  made  for  tliat  purpose. 

We  are  aware  that,  in  Paul  v.  Virginia,  8  Wall.  168,  this  court 
decided  that  a  State  might  exclude  a  coi'poration  of  another  State 
from  its  jurisdiction,  and  that  corporations  are  not  within  the  clause 
of  the  Constitution  which  declares  that  "  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States."  Art.  4,  sect.  2.  That  was  not,  however,  the  case 
of  a  corporation  engaged  in  inter-state  commerce ;  and  enough  was 
said  by  the  court  to  show,  that,  if  it  had  been,  very  different  questions 
would  have  been  presented.  The  language  of  the  opinion  is  (p.  182) : 
"  It  is  undoubtedly  true,  as  stated  by  counsel,  that  the  power  conferred 
upon  Congress  to  regulate  commerce  includes  as  well  commerce  car- 
ried on  by  corporations  as  commerce  carried  on  by  individuals.  .  .  . 
This  state  of  facts  forbids  the  supposition  that  it  was  intended  in  the 


256  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IT. 

grant  of  power  to  Congress  to  exclude  from  its  control  the  commerce 
of  corporations.  The  language  of  the  grant  makes  no  reference  to 
the  instrumentalities  by  which  commerce  may  be  carried  on :  it  is 
general,  and  includes  alike  commerce  by  individuals,  partnerships, 
associations,  and  corporations.  .  .  .  The  defect  of  the  argument  lies 
in  the  character  of  their  (insurance  companies)  business.  Issuing 
a  policy  of  insurance  is  not  a  transaction  of  commerce.  .  .  .  Such 
contracts  (policies  of  insurance)  are  not  inter-state  transactions, 
though  the  parties  are  domiciled  in  different  States." 

The  questions  thus  suggested  need  not  be  considered  now,  because 

no  prohibitory  legislation  is  relied  upon,  except  that  which,  as  has 

already  been  seen,  is  inoperative.     Upon  principles  of  comity,  the 

/'corporations  of  one  State  are  permitted  to  do  business  in  another, 

I  unless  it  conflicts  with  the  law,  or  unjustly  interferes  with  the  rights 

]  of  the  citizens  of  the  State  into   which  they  come.      Under  such 

circumstances,  no  citizen  of  a  State  can  enjoin  a  foreign  corporation 

-from  pursuing  its  business.     Until  the  State  acts  in  its  sovereign 

/capacity,  individual  citizens  cannot  complain.    The  State  must  deter- 

{ mine  for  itself  when  the  public  good  requires  that  its  implied  assent 

•  to  the  admission  shall  be  withdrawn.     Here,  so  far  from  withdraw- 

Iing  its  assent,  the  State,  by  its  legislation  of  1874,  in  effect,  invited 
foreign  telegraph  corporations  to  come  in.  Whether  that  legislation, 
in  the  absence  of  congressional  action,  would  have  been  sufficient  to 
authorize  a  foreign  corporation  to  construct  and  operate  a  line  within 
the  two  counties  named,  we  need  not  decide ;  but  we  are  clearly  of 
/tlie  opinion,  that,  with  such  action  and  a  right  of  way  secured  by 
\  private  arrangement  with  the  owner  of  the  land,  this  defendant  cor- 
poration cannot  be  excluded  by  the  present  complainant. 

Decree  affirmed. 


iPO 


V 


LOKD  V.   STEAMSHIP  COMPANY. 

102  United  States,  5-11.     1880. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
California. 

Sects.  4283  and  4289  of  the  Revised  Statutes  are  as  follows :  — 

"  Sect.  4283.  The  liability  of  the  Qg^ner  of  any  vessel,  for  any  embezzlement, 
loss,  or  destruction,  by  any  person,  of  any  property,  goods,  or  merchandise, 
sliipped  or  put  on  board  of  such  vessel,  or  for  any  loss,  damage,  or  injury  by 
collision,  or  for  any  act,  matter,  or  thing  lost,  damage  or  forfeiture  done,  occa- 
sioned, or  incurred,  without  the  privity  or  knowledge  of  such  owner  or  owners, 
shall  in  no  case  exceed  the  amount  of  the  value  of  the  interest  of  such  owner  in 
such  vessel,  and  her  freight  then  pending." 

"  Sect.  4289.    The  provision  of  the  seven  preceding  sections  relating  to  the 


SECT.  II.  a.] 


LORD    V.   STEAMSHIP   COMPANY. 


'J0( 


limitation  of  the  liability  of  the  owners  of  vessels  shall  not  apply  to  the 
owners  of  any  canal-boat,  barge,  or  lighter,  or  to  any  vessel  of  any  descrip- 
tion whatsoever  used  in  rivers  or  inland  navigation." 

Sect.  4283  was  one  of  the  seven  sections  referred  to  in  sect.  4289. 

The  steamship  "  Ventura,"  owned  by  the  defendant  in  error,  the 
Goodall,  Nelson,  and  Perkins  Steamship  Company,  was  employed  in 
navigation  between  San  Francisco  and  San  Diego,  in  the  State  of 
California,  touching  at  the  intermediate  ports  on  the  coast.  In  making 
her  voyages  she  ran  a  distance  of  four  hundred  and  eighty  miles  on 
the  Pacific  Ocean,  She  formed  part  of  a  transportation  line  which 
was  largely  engaged  in  foreign  and  inter-state  commerce,  but  was 
herself  only  employed  on  her  own  route,  and  neither  took  on  nor  put 
off  goods  outside  of  the  State  of  California.  While  on  one  of  her 
regular  voyages  from  San  Francisco  to  San  Diego  she  was  totally  lost, 
with  all  her  pending  freight  and  cargo,  on  the  coast  of  California, 
without  the  privity  or  knowledge  of  her  owner.  This  suit  was  brought/ 
ao-ainst  her  owner  as  a  common  carrier  to  recover  the  value  of  the 
goods  lost.  The  cargo  was  mostly  owned  by  retail  merchants  in  San 
Diego  and  other  places  in  California  who  had  made  purchases  for  their 
business  from  wholesale  merchants  in  San  Francisco  and  was  in  transit 
from  there.  The  steamship  company  pleaded  its  exemption  from 
liability  as  owner  of  the  vessel  under  sect.  4283  of  the  Revised 
Statutes.  On  the  trial  the  court  instructed  the  jury  '^  that  if  the  jury 
believed  that  the  said  losses  occurred  solely  by  reason  of  the  negli- 
gence of  the  master  of  said  ship  and  without  the  privity  or  knowledge 
or  neglect  of  said  defendant,  that  said  sect.  4283  of  the  Revised  Stat- 
utes fully  exonerated  the  defendant  from  liability  for  any  such  losses, 
notwithstanding  the  goods  when  lost  were  being  transported  on  a 
journey,  the  final  termini  of  which  were  different  points  in  the  State 
of  California."  To  this  charge  an  exception  was  duly  taken.  The 
jury  found  in  favor  of  the  defendant,  and  judgment  was  rendered 
accordingly.  To  reverse  that  judgment  the  present  writ  of  error  was 
sued  out. 

Mr.  Chief  Justice  Waite,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

The  single  question  presented  by  the  assignment  of  errors  is, 
whether  Congress  has  power  to  regulate  the  liability  of  the  owners 
of  vessels  navigating  the  high  seas,  but  engaged  only  in  the  trans- 
portation of  goods  and  passengers  between  ports  and  places  in  the 
same  State.  It  is  conceded  that  while  the  Ventura  carried  goods 
from  place  to  place  in  California,  her  voyages  were  always  ocean 
voyages. 

Congress  has  power  "to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes  "  (Const., 
art.  1,  sect.  8),  but  it  has  nothing  to  do  with  the  purely  internal 
commerce  of  the  States,  that  is  to  say,  with  such  commerce  as  is  car- 
ried on  between  different  parts  of  the  same  State,  if  its  operations  i 

17 


258  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

are  confined  exclusively  to  the  jurisdiction  and  territory  of  that  State, 
and  do  not  affect  other  nations  or  States  or  the  Indian  tribes.  This  has 
never  been  disputed  since  the  case  of  Gibbons  v.  Ogden,  9  Wheat,  1, 
194.  The  contracts  sued  on  in  the  present  case  were  in  effect  to 
carry  goods  from  San  Francisco  to  San  Diego  by  the  way  of  the 
Pacific  Ocean.  They  could  not  be  performed  except  by  going  not 
I  only  out  of  California,  but  out  of  the  United  States  as  well. 
,--  Commerce  includes  intercourse,  navigation,  and  not  traffic  alone. 
This  also  was  settled  in  Gibbons  v.  Ogden,  supra^  189.  '•'  Commerce 
with  foreigii  nations,"  says  Mr.  Justice  Daniel,  for  the  court,  in  Veazie 
V.  Moor,  14  How.  568,  "  must  signify  commerce  which,  in  some  sense, 
is  necessarily  connected  with  these  nations,  transactions  which  either 
immediately  or  at  some  stage  of  their  progress  must  be  extra-territo- 
rial." p.  573. 

:  The  Pacific  Ocean  belongs  to  no  one  nation,  but  is  the  common 
property  of  all.  When,  therefore,  the  Ventura  went  out  from  Sun 
Francisco  or  San  Diego  on  her  several  voyages,  she  entered  on  a 
navigation  Avhich  was  necessarily  connected  with  other  nations. 
While  on  the  ocean  her  national  character  only  was  recognized,  and 
she  was  subject  to  such  laws  as  the  commercial  nations  of  the  world 
had,  by  usage  or  otherwise,  agreed  on  for  the  government  of  the 
vehicles  of  commerce  occupying  this  common  property  of  all  mankind. 
She  was  navigating  among  the  vessels  of  other  nations  and  was 
treated  by  them  as  belonging  to  the  country  whose  flag  she  carried. 
.True,  she  was  not  trading  with  them,  but  she  was  navigating  with 
/them,  and  consequently  with  them  was  engaged  in  commerce.  If  in 
her  navigation  she  inflicted  a  wrong  on  anotlier  country,  the  United 
States,  and  not  the  State  of  California,  must  answer  for  what  was 
done.  In  every  just  sense,  therefore,  she  was,  while  on  the  ocean, 
f  engaged  in  commerce  with  foreign  nations,  and  as  such  she  and  the 
business  in  which  she  was  engaged  were  subject  to  the  regulating 
power  of  Congress. 

Navigation  on  the  high  seas  is  necessarily  national  in  its  character. 
Such  navigation  is  clearly  a  matter  of  "  external  concern,"  affecting 
the  nation  as  a  nation  in  its  external  affairs.  It  must,  therefore,  be 
subject  to  the  national  government. 

This  disposes  of  the  case,  since,  by  sect.  4289  of  the  Revised  Stat- 
utes, the  provisions  of  sect.  428.3  are  not  applicable  to  vessels  used  in 
.^livers  or  inland  navigation,  and  this  legislation,  therefore,  is  relieved 
from  the  objection  that  proved  fatal  to  the  trade-mark  law  which  was 
considered  in  Trade-Mark  Cases,  100  U.  S.  82.  The  commerce  regu- 
lated is  expressly  confined  to  a  kind  over  which  Congress  has  been 
given  control.  There  is  not  here,  as  in  Allen  v.  Newberry,  21  How. 
244,  a  question  of  admiralty  jurisdiction  under  the  law  of  1845,  but 
of  the  power  of  Congress  over  the  commerce  of  the  United  States. 
The  contracts  sued  on  do  not  relate  to  the  purely  internal  commerce 
of  a  State,  but  impliedly,  at  least,  connect  themselves  with  the  com- 


SECT.  II.  a.] 


LORD    V.   STEAMSHIP   COMPANY. 


259 


merce  of  the  world,  because  in  their  performance  tlie  laws  of  nations 
on  the  high  seas  may  be  involved,  and  the  United  States  compelled 
to  respond. 

Having  found  ample  authority  for  the  act  as  it  now  stands  in  the 
commerce  clause  of  the  Constitution,  it  is  unnecessary  to  consider 
whether  it  is  within  the  judicial  "power  of  the  United  States  over 
cases  of  admiralty  and  maritime  jurisdiction.  _^ 

Affirmed.^ 

1  In  the  case  of  Hanlev  v.  Kansas  City  Soitiiern  Railroad  Company,  187  U.  S. 
617, 23  Sup.  Ct.  Hep.  214  (1903),  the  question  was  whether  the  State  Board  of  Hailroad 
Commissioners  of  Arkansas  liad  the  right  to  enforce  a  State  regulation  of  railroad  rates 
as  to  a  shipment  of  goods  between  two  points  in  the  State  over  a  line  of  railr(jad  which 
for  a  portion  of  the  distance  between  those  two  points  was  outside  of  the  State.  It  was 
conceded  that  if  the  transportation  of  goods  between  these  points  over  this  line  of  road 
was  interstate  commerce  it  was  subject  to  federal  regulation  and  exempt  from  regu- 
lation by  the  State. 

Mr.  Justice  Holmes  delivering  the  opinion  of  the  court  used  the  following 
language : 

"  It  is  decided  that  navigation  on  the  high  seas  between  ports  of  the  same  State  'S_J 
subject  to  regulation  by  Congress,  Lord  r.  Steamship  Co.,  102  U.  S.  541  [256],  and  's_>- 
not  subject  to  regulation  by  the  State,  Pacific  Coast  Steamship  Co.  v.  Railroad  Commis-  '  ' 
sioners,  9  Sawyer,  253,  and  although  it  is  argued  that  these  decisions  are  not  conclu- 
sive, the  reason  given  by  Mr.  Justice  Field  for  his  decision  in  the  last  cited  case 
disposes  equally  of  the  case  at  bar.     '  To  bring  the  transportation  within  the  control  | 
of  the  State,  as  part  of  its  domestic  commerce,  the  subject  transported  must  be  within  1 
the  entire  voyage  under  the  exclusive  jurisdiction  of  the  State.'     9  Sawyer,  258.     De- 
cisions in  point  are  State  v.  Chicago,  St.  Paul,  Minneapolis  &  Omaha  Railway  Co..  40 
Minnesota,  267  ;  Sternberger  v.  Cape  Fear  &  Yadkin  Valley  Railroad  Co  ,  29  So.  Car. 
510.     See  also  Milk  Producers'  Protective  Association  v.  Delaware,  Lackawanna  & 
Western  Railroad  Co.,  7  Interstate  Commerce  Rep.  92,  160,  161. 

"There  are  some  later  State  decisions  contrary  to  those  last  cited.  Camphell  v. 
Chicuqo,  Milwaukee.  Sr  St.  Paul  Railway  Co.,  86  Iowa,  587  ;  Seaivell  v.  Kansas  Citjf, 
Ft.  Scott  <f  Memphis  Railroad  Co.,  119  Missouri,  222;  Railroad  Commissioners  v. 
Western  Union  Tele(]raph  Co.,  113  No.  Car.  213.  But  these  decisions  were  made 
simply  out  of  deference  to  conclusions  drawn  from  Lnhigh  Valley  Railroad  Co.  v. 
Pennsylvania,  145  U.  S.  192,  and  we  are  of  opinion  that  they  carry  their  conclusioihs 
too  far.  That  was  the  case  of  a  tax  and  was  distinguished  expressly  from  an  attempt 
by  a  State  directly  to  regulate  the  transportation  while  outside  its  borders.  145  U.  S. 
204.  And  although  it  was  intimated  that,  for  the  purposes  before  the  court,  to  some 
extent  commerce  by  transportation  might  have  its  character  fixed  by  the  relation 
between  the  two  ends  of  the  transit,  the  intimation  was  carefully  confined  to  those 
purposes.  Moreover,  the  tax  '  was  determined  in  respect  of  receipts  for  the  propor- 
tion of  the  transportation  within  the  State.'  145  U.  S.  201.  Such  a  proportioned  tax 
had  been  sustained  in  the  case  of  commerce  admitted  to  be  interstate.  Maine  v. 
Grand  Trunk  Radway  Co.,  142  U.  S.  217.  Whereas  it  is  decided,  as  we  have  said, 
that  when  a  rate  is  established,  it  must  be  established  as  a  whole." 


2G0  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

THE   DANIEL  BALL. 

10  Wallace,  557.     1870. 

[This  was  a  proceeding  by  libel  in  behalf  of  the  United  States  in 
the  District  Court  of  the  United  States  for  Michigan  against  a  vessel 
to  recover  a  penalty  for  the  use  of  the  vessel  on  the  navigable  waters 
of  the  United  States  without  a  license  as  required  by  act  of  Congress. 
It  appeared  that  the  vessel  was  used  wholly  on  Grand  River,  which 
is  entirely  within  the  State  of  Michigan,  but  that  the  goods  trans- 
ported wefe  destined,  in  part,  for  points  outside  the  State.  The 
libel  was  dismissed,  but  this  decision  was  reversed  on  appeal  to  the 
Circuit  Court  and  from  the  decree  in  that  Court  an  appeal  is 
prosecuted.] 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court,  as  follows  : 

Two  questions  are  presented  in  this  case  for  our  determination. 

First :  Whether  the  steamer  was  at  the  time  designated  in  the 
libel  engaged'  in  transporting  merchandise  and  passengers  on  a 
navigable  water  of  the  United  States  within  the  meaning  of  the  acts 
of  Congress  ;  and, 

Second :  Whether  those  acts  are  applicable  to  a  steamer  engaged 
as  a  common  carrier  between  places  in  the  same  State,  when  a  portion 
of  the  merchandise  transported  by  her  is  destined  to  places  in  other 
States,  or  comes  from  places  without  the  State,  she  not  running  in 
connection  with  or  in  continuation  of  any  line  of  steamers  or  other 
vessels,  or  any  railway  line  leading  to  or  from  another  State. 

Upon  the  first  of  these  questions  we  entertain  no  doubt.  The 
doctrine  of  the  common  law  as  to  the  navigability  of  waters  has  no 
application  in  this  countrj-.  Here  the  ebb  and  flow  of  the  tide  do 
not  constitute  the  usual  test,  as  in  England,  or  any  test  at  all  of  the 
navigability  of  waters.  There  no  waters  are  navigable  in  fact,  or  at 
least  to  any  considerable  extent,  which  are  not  subject  to  the  tide, 
and  from  this  circumstance  tide  water  and  navigable  water  there 
signify  substantially  the  same  thing.  But  in  this  country  the  case 
is  widely  different.  Some  of  our  rivers  are  as  navigable  for  many 
hundreds  of  miles  above  as  they  are  below  the  limits  of  tide  water, 
and  some  of  them  are  navigable  for  great  distances  by  large  vessels, 
which  are  not  even  affected  by  the  tide  at  any  point  during  their 
entire  length.  The  Genesee  Chief,  12  How.  457;  Hine  v.  Trevor, 
4  Wall.  555.  A  different  test  must,  therefore,  be  applied  to  de- 
termine the  navigability  of  our  rivers,  and  that  is  found  in  their 
navigable  capacity.  Those  rivers  must  be  regarded  as  public  navi- 
gable rivers  in  law  which  are  navigable  in  fact.  ^Vnd  they  are 
navigable  in  fact  when  they  are  used,  or  are  susceptible  of  being 
used,  in  their  ordinary  condition,  as  highways  for  commerce,  over 


SECT.  II.  a.]  THR  DANIEL  BALL.  261 

which  trade  and  travel  are  or  may  be  conducted  in  the  customary 
modes  of  trade  and  travel  on  water.  And  they  constitute  navigable 
waters  of  the  United  States  within  the  meaning  of  the  acts  of  Con- 
gress, in  contradistinction  from  the  navigable  waters  of  the  States, 
when  they  form  in  their  ordinary  condition  by  themselves,  or  by 
uniting  with  other  waters,  a  continued  highway  over  which  commerce 
is  or  may  be  carried  on  with  other  States  or  foreign  countries  in  the 
customary  modes  in  which  such  commerce  is  conducted  by  water. 

If  we  apply  tJiis  test  to  Grand  River,  the  conclusion  follows  that 
it  must  be  regarded  as  a  navigable  water  of  the  United  States. 
From  the  conceded  facts  in  the  case  the  stream  is  capable  of  bearing 
a  steamer  of  one  hundred  and  twenty-three  tons  burden,  laden  with 
merchandise  and  passengers,  as  far  as  Grand  Rapids,  a  distance  of 
forty  miles  from  its  mouth  in  Lake  Micliigan.  And  by  its  junction 
with  the  lake  it  forms  a  continued  highway  for  commerce,  both  with 
other  States  and  with  foreign  countries,  and  is  thus  brought  under 
the  direct  control  of  Congress  in  the  exercise  of  its  commercial 
power. 

That  power  authorizes  all  appropriate  legislation  for  the  protection 
or^advancement  of  either  interstate  or  foreign  commerce,  and  for  that 
purpose  such  legislation  as  will  insure  the  convenient  and  safe  nav- 
igation of  all  the  navigable  waters  of  the  United  States,  whether 
that  legislation  consists  in  requiring  the  removal  of  obstructions  to 
their  use,  in  prescribing  the  form  and  size  of  the  vessels  emplo3'ed 
upon  them,  or  in  subjecting  the  vessels  to  inspection  and  license,  in 
order  to  insure  their  proper  construction  and  equipment.  "The 
power  to  regulate  commerce,"  this  court  said  in  Gilman  v.  Phila- 
delphia, 3  Wall.  724,  "comprehends  the  control  for  that  purpose, 
and  to  the  extent  necessary,  of  all  navigable  waters  of  the  United 
.States  which  are  accessible  from  a  State  other  than  those  in  which 
they  lie.  For  this  purpose  they  are  the  public  property  of  the 
nation,  and  subject  to  all  the  requisite  legislation  of  Congress." 

But  it  is  contended  that  the  steamer  Daniel  Ball  was  only  engaged 
in  the  internal  commerce  of  the  State  of  Michigan,  and  was  not, 
therefore,  required  to  be  inspected  or  licensed,  even  if  it  be  conceded 
that  Grand  River  is  a  navigable  water  of  the  United  States  ;  and  this 
brings  us  to  the  consideration  of  the  second  question  presented. 

There  is  undoubtedly  an  internal  commerce  which  is  subject  to 
the  control  of  the  States.  The  power  delegated  to  Congress  is 
limited  to  commerce  "  among  the  several  States,"  with  foreign 
nations,  and  with  the  Indian  tribes.  This  limitation  necessarily 
excludes  from  Federal  control  all  commerce  not  thus  designated, 
and  of  course  that  commerce  which  is  carried  on  entirely  within  the 
limits  of  a  State,  and  does  not  extend  to  or  affect  other  States. 
Gibbons  v.  Ogden,  9  Wheat.  194,  195.  In  this  case  it  is  admitted 
that  the  steamer  was  engaged  in  shipping  and  transporting  down 
Grand   River,  goods   destined   and    marked    for   other   States   than 


262  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

^Michigan,  and  in  receiving  and  transporting  up  the  river  goods 
brouglit  within  the  State  from  without  its  limits ;  but  inasmuch  as 
her  agency  in  tlie  transportation  was  entirely  within  the  limits  of 
the  State,  and  she  did  not  run  in  connection  with,  or  in  continuation 
of,  any  line  of  vessels  or  railway  leading  to  other  States,  it  is  con- 
tended that  she  was  engaged  entirely  in  domestic  commerce.  But 
this  conclusion  does  not  follow\  So  far  as  she  was  employed  iu 
transporting  goods  destined  for  other  States,  or  goods  brought  from 
without  the  limits  of  Michigan  and  destined  to  places  within  that 
State,  she  was  engaged  in  commerce  between  the  States,  and  how- 
ever limited  that  commerce  may  have  been,  she  was,  so  far  as  it 
went,  subject  to  the  legislation  of  Congress.  She  was  employed  as 
an  instrument  of  that  commerce ;  for  whenever  a  commodity  has 
begun  to  move  as  an  article  of  trade  from  one  State  to  another, 
commerce  in  that  commodity  between  the  States  has  commenced. 
The  fact  that  several  different  and  independent  agencies  are  era- 
ployed  in  transporting  the  commodity,  some  acting  entirely  in  one 
State,  and  some  acting  through  two  or  more  States,  does  in  no 
respect  affect  the  character  of  the  transaction.  To  the  extent  iu 
which  each  agency  acts  in  that  transportation,  it  is  subject  to  the 
regulation  of  Congress. 

It  is  said  that  if  the  position  here  asserted  be  sustained,  there  is 
no  such  thing  as  the  domestic  trade  of  a  State  ;  that  Congress  may 
take  the  entire  control  of  the  commerce  of  the  country,  and  extend 
its  regulations  to  the  railroads  within  a  State  on  which  grain  or  fruit 
is  transported  to  a  distant  market. 

We  answer  that  the  present  case  relates  to  transportation  on  the 
navigable  waters  of  the  United  States,  and  we  are  not  called  upon  to 
express  an  opinion  upon  the  power  of  Congress  over  interstate  com- 
merce when  carried  on  by  land  transportation.  And  we  answer 
further,  that  we  are  unable  to  draw  any  clear  and  distinct  line 
between  the  authority  of  Congress  to  regulate  an  agency  employed 
in  commerce  between  the  States,  when  that  agency  extends 
through  two  or  more  States,  and  when  it  is  confined  in  its  action 
entirel}^  within  the  limits  of  a  single  State.  If  its  authority  does 
not  extend  to  an  agency  in  such  commerce,  when  that  agency  is 
confined  within  the  limits  of  a  State,  its  entire  authority  over  inter- 
state commerce  may  be  defeated.  Several  agencies  combining,  each 
taking  up  the  commodity  transported  at  the  boundary  line  at  one 
end  of  a  State,  and  leaving  it  at  the  boundary  line  at  the  other  end, 
the  Federal  jurisdiction  would  be  entirely  ousted,  and  the  con- 
stitutional provision  would  become  a  dead  letter. 

We  perceive  no  error  in  the  record,  and  the  decree  of  the  Circuit 
Court  must  be  Affirmed. 


I* 


SECT.  II.  a.]  UNITED   STATES    IK    E.   C,    KNIGHT   CO,  263 

UNITED  STATES  v.  E.  C.  KNIGHT  CO, 
156  United  States,  1.     1895. 

[The  bill  filed  in  this  case  in  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania  charged,  in  substance,  that 
the  American  Sugar  Refining  Company  and  four  other  corporations, 
including  the  E.  C.  Knight  Company,  incorporated  under  the  laws  of 
different  States  to  carry  on  the  business  of  refining  sugar,  and  pro- 
ducing nearly  all  the  refined  sugar  manufactured  in  the  United  States, 
had  entered  into  contracts  for  the  purchase  by  the  American  Sugar 
Refining  Company  of  the  shares  of  stock  and  the  property  of  the 
other  companies,  and  the  issuance  in  exchange  to  the  other  companies 
of  shares  of  stock  in  the  said  American  Sugar  Refining  Company ; 
that  these  contracts  were  entered  into  for  the  purpose  of  obtaining 
control  by  the  last  named  company  of  the  price  of  sugar  in  the  United 
States  and  monopolizing  the  manufacture  and  sale  of  refined  sugar 
therein;  and  that  such  contracts  were  in  violation  of  the  provisions 
of -an  act  of  Congress  approved  July  2,  1S90,  entitled  "  An  act  to  pro- 
tect trade  and  commerce  against  unlawful  restraints  and  monopolies," 
26  Stat.  209,  providing  "  that  every  contract,  combination  in  the  form 
of  trust,  or  otherwise,  or  conspiracy  in  restraint  of  trade  and  com- 
merce among  the  several  States  is  illegal,  and  that  persons  who  shall 
monopolize  or  shall  attempt  to  monopolize  or  combine  or  conspire 
with  other  persons  to  monopolize  trade  and  commerce  among  the 
several  States  shall  be  guilty  of  a  misdemeanor."  It  was  prayed  that 
the  agreements  referred  to  be  cancelled  and  declared  void  and  that 
the  defendants  be  enjoined  from  carrying  them  out  and  from  violating 
said  act.] 

Mr.  Chief  Justice  Fuller,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

By  the  purchase  of  the  stock  of  the  four  Philadelphia  refineries, 
with  shares  of  its  own  stock,  the  American  Sugar  Refining  Company 
acquired  nearly  complete  control  of  the  manufacture  of  refined  sugar 
within  the  United  States.  The  bill  charged  that  the  contracts  under 
which  these  purchases  were  made  constituted  combinations  in  re- 
straint of  trade,  and  that  in  entering  into  them  the  defendants  com- 
bined and  conspired  to  restrain  the  trade  and  commerce  in  refined 
•sugar  among  the  several  States  and  with  foreign  nations,  contrary  to 
the  act  of  Congress  of  July  2,  1890. 

The  relief  sought  was  the  cancellation  of  the  agreements  under 
which  the  stock  was  transferred ;  the  redelivery  of  the  stock  to  the 
parties  respectively ;  and  an  injunction  against  the  further  performance 
of  the  agreements  and  further  violations  of  the  act-  As  usual,  there 
was  a  prayer  for  general  relief,  but  only  such  relief  could  he  afforded 
under  that  prayer  as  would  be  agreeable  to  the, case  made  by  the  bill 


264  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

and  consistent  with  that  specifically  prayed.  And  as  to  the  injunc- 
tion asked,  that  relief  was  ancillary  to  and  in  aid  of  the  primary 
equity,  or  ground  of  suit,  and,  if  that  failed,  would  fall  with  it.  That 
ground  here  was  the  existence  of  contracts  to  monopolize  interstate 
or  international  trade  or  commerce,  and  to  restrain  such  trade  or  com- 
merce, which,  by  the  provisions  of  the  act,  could  be  rescinded,  or 
operations  thereunder  arrested. 

In  commenting  upon  the  statute,  21  James  1,  c.  3,  at  the  com- 
mencement of  chapter  85  of  the  third  Institute,  entitled  "  Against 
Monopolists,  Propounders,  and  Projectors,"  Lord  Coke,  in  language 
often  quoted,  said  : 

"  It  appeareth  by  the  preamble  of  this  act  (as  a  judgment  in  Par- 
liament) that  all  grants  of  monopolies  are  against  the  ancient  and 
fundamentall  laws  of  this  Kingdome.  And  therefore  it  is  necessary 
to  define  what  a  monopoly  is. 

"A  monopoly  is  an  institution,  or  allowance  by  the  King  by  his 
grant,  commission,  or  otherwise  to  any  person  or  persons,  bodies 
politique,  or  corporate,  of  or  for  the  sole  buying,  selling,  making, 
working,  or  using  of  anything,  whereby  any  person  or  persons,  bodies 
politique,  or  corporate,  are  sought  to  be  restrained  of  any  freedome  or 
liberty  that  they  had  before,  or  hindred  in  their  lawfull  trade. 

"For  the  word  monopoly,  dicittir a-Trb tov /xovov,  (i.  solo^  koI  TrwXio^ai, 
(i.  vendere,)  quod  est  cum  unus  solus  aliquod  genus  mercaturce  univer- 
sum  vendit,  ut  solus  vendat,  pretiian  ad  siiuni  libitum  statu  ens :  hereof 
you  may  read  more  at  large  in  that  case.  Trin.  44  Eliz.  Lib.  11,  f.  84, 
85  ;  le  case  de  monojwlies."     3  Inst.  181, 

Counsel  contend  that  this  definition,  as  explained  by  the  derivation 
of  the  word,  may  be  applied  to  all  cases  in  which  "one  person  sells 
alone  the  whole  of  any  kind  of  marketable  thing,  so  that  only  he  can 
continiie  to  sell  it,  fixing  the  price  at  his  own  pleasure,"  whether  by 
virtue  of  legislative  grant  or  agreement;  that  the  monopolization  re- 
ferred to  in  the  act  of  Congress  is  not  confined  to  the  common  law 
sense  of  the  term  as  implying  an  exclusive  control,  by  authority,  of 
one  branch  of  industry  without  legal  right  of  any  other  person  to  in- 
terfere therewith  by  competition  or  otherwise,  but  that  it  includes 
engrossing  as  well,  and  covers  controlling  the  market  by  contracts 
securing  the  advantage  of  selling  alone  or  exclusively  all,  or  some 
considerable  portion,  of  a  particular  kind  of  merchandise  or  com- 
modity to  the  detriment  of  the  public  ;  and  that  such  contracts  amount 
to  that  restraint  of  trade  or  commerce  declared  to  be  illegal.  But 
tlie  monopoly  and  restraint  denounced  by  the  act  are  the  monopoly 
and  restraint  of  interstate  and  international  trade  or  commerce,  while 
the  conclusion  to  be  assumed  on  this  record  is  that  the  result  of  the 
transaction  complained  of  was  the  creation  of  a  monopoly  in  the  manu- 
facture of  a  necessary  of  life. 

In  the  view  which  we  take  of  the  case,  we  need  not  discuss  whether 
because  the   tentacles^  which  drew  the  outlying  refineries  into  the 


SECT.  II.  a.]  UNITED    STATES   V.    E.    C.    KNIGHT    CO.  265 

dominant  corporation  were  separately  put  out,  therefore  there  was  no 
combination  to  monopolize  ;  or,  because,  according  to  political  econo- 
mists, aggregation  of  capital  may  reduce  prices,  therefore  the  objec- 
tion to  concentration  of  power  is  relieved;  or,  because  others  were 
theoretically  left  free  to  go  into  the  business  of  refining  sugar,  and 
the  original  stockholders  of  the  Philadelphia  refineries  after  becoming 
stockholders  of  the  American  Company  might  go  into  competition 
with  themselves,  or,  parting  with  that  stock,  might  set  up  again  for 
themselves,  therefore  no  objectionable  restraint  was  imposed. 

The  fundamental  question  is,  whether  conceding  that  the  existence 
of  a  monopoly  in  manufacture  is  established  by  the  evidence,  that 
monopoly  can  be  directly  suppressed  under  the  act  of  Congress  in  the 
mode  attempted  by  this  bill. 

It  cannot  be  denied  that  the  power  of  the  State  to  protect  the  lives, 
health,  and  property  of  its  citizens,  and  to  preserve  good  order  and 
the  public  morals,  "the  power  to  govern  men  and  things  within  the 
limits  of  its  dominion,"  is  a  power  originally  and  always  belonging 
to  the  States,  not  surrendered  by  them  to  the  general  government, 
nor  directly  restrained  by  the  Constitution  of  the  United  States,  and 
essentially  exclusive.     The  relief  of  the  citizens  of  each  State  from 
the  burden  of  monopoly  and  the  evils  resulting  from  the  restraint  of 
trade  among  such  citizens  was  left  with  the  States  to  deal  with,  and 
this  Court  has  recognized  their  possession  of  that  power  even  to  the 
extent  of  holding  that  an  employment  or  business  carried  on  by  pri- 
vate individuals,  when  it  becomes  a  matter  of  such  public  interest 
and  importance  as  to  create  a  common  charge  or  burden  upon  a  citi- 
zen ;  in  other  words,  when  it  becomes  a  practical  monopoly,  to  which 
the  citizen  is  compelled  to  resort  and  by  means  of  which  a  tribute  can 
be  exacted  from  the  community,  is  subject  to  regulation    by  State 
legislative  power.     On  the  other  hand,   the  power  of  Congress  to 
regulate  commerce  among  the  several  States  is  also  exclusive.     The 
Constitution  does  not  provide  that  interstate  commerce  shall  be  free, 
but,  bv  the  grant  of  this  exclusive  power  to  regulate  it,  it  was  left 
free  except  as  Congress  might  impose  restraints.     Therefore  it  has 
been  determined  that  the  failure  of  Congress  to  exercise  this  exclu- 
sive power  in  any  case  is  an  expression  of  its  will  that  the  subject 
shall  be  free  from  restrictions  or  impositions  upon  it  by  the  several 
States,  and  if  a  law  passed  by  a  State  in  the  exercise  of  its  acknowl- 
edged powers  comes  into  conflict  with  that  will,  the  Congress  and  the 
State  cannot  occupy  the  position  of  equal  opposing  sovereignties,  be- 
cause the  Constitution  declares  its  supremacy  and  that  of  the  laws 
passed  in  pursuance  thereof;    and  that  which  is  not  supreme  must 
yield  to  that  which  is  supreme.     "  Commerce,  undoubtedly,  is  traffic," 
said  Chief  Justice  Marshall,  "  but  it  is  something  more  ;  it  is  inter- 
course.    It  describes  the  commercial  intercourse  between  nations  and 
parts  of  nations  in  all  its  branches,  and  is  regulated  by  prescribing 
rules  for  carrying  on  that  intercourse."     That  which  belongs  to  com. 


266  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

merce  is  within  the  jurisdiction  of  the  United  States,  but  that  which 
does  not  belong  to  commerce  is  within  the  jurisdiction  of  the  police 
power  of  the  State.  Gibbons  v.  Ogden,  9  Wheat.  1,  189.  210; 
Brown  v.  Maryland,  12  Wheat.  419,  448;  The  License  Cases,  5  How. 
504,  599;  Mobile  v.  Kimball,  102  U.  S.  691;  Bowman  v.  Chicago  & 
N.  W.  Railway  Co.,  125  U.  S.  465;  Leisy  v.  Hardin,  135  U.  S.  100; 
In  re  Kahrer,  140  U.  S.  545,  555. 

The  argument  is  that  the  power  to  control  the  manufacture  of 
refined  sugar  is  a  monopoly  over  a  necessary  of  life,  to  the  enjoyment 
of  which  by  a  large  part  of  the  population  of  the  United  States  inter- 
state commerce  is  indispensable,  and  that,  therefore,  the  general 
government  in  the  exercise  of  the  power  to  regulate  commerce  may 
repress  such  monopoly  directly  and  set  aside  the  instruments  which 
have  created  it.  But  this  argument  cannot  be  confined  to  necessa- 
ries of  life  merely,  and  must  include  all  articles  of  general  consump- 
tion. Doubtless  the  power  to  control  the  manufacture  of  a  given 
thing  involves  in  a  certain  sense  the  control  of  its  disposition,  but 
this  is  a  secondary  and  not  the  primary  sense;  and  although  the 
exercise  of  that  power  may  result  in  bringing  the  operation  of  com- 
merce into  play,  it  does  not  control  it,  and  affects  it  only  incidentally 
and  indirectly.  Commerce  succeeds  to  manufacture,  and  is  not  a  part 
of  it.  The  power  to  regulate  commerce  is  the  power  to  prescribe  the 
rule  by  which  commerce  shall  be  governed,  and  is  a  power  indepen- 
dent of  the  power  to  suppress  monopoly.  But  it  may  operate  in 
repression  of  monopoly  whenever  that  comes  within  the  rules  by 
which  commerce  is  governed  or  whenever  the  transaction  is  itself  a 
monopoly  of  commerce. 

It  is  vital  that  the  independence  of  the  commercial  power  and  of 
the  police  power,  and  the  delimitation  between  them,  however 
sometimes  perplexing,  should  always  be  recognized  and  observed, 
for  while  the  one  furnishes  the  strongest  bond  of  union,  the  other  is 
essential  to  the  preservation  of  the  autonomy  of  the  States  as  re- 
quired  by  our  dual  form  of  government;  and  acknowledged  evils, 
however  grave  and  urgent  they  may  appear  to  be,  had  better  be 
borne,  than  the  risk  be  run,  in  the  effort  to  suppress  them,  of  more 
serious  consequences  by  resort  to  expedients  of  even  doubtful 
constitutionality. 

It  will  be  perceived  how  far-reaching  the  proposition  is  that  the 
power  of  dealing  with  a  monopoly  directly  may  be  exercised  by  the 
general  government  whenever  interstate  or  international  commerce 
may  be  ultimately  affected.  The  regulation  of  commerce  applies  to 
the  subjects  of  commerce  and  not  to  matters  of  internal  police. 
Contracts  to  buy,  sell,  or  exchange  goods  to  be  transported  among 
the  several  States,  the  transportation  and  its  instrumentalities,  and 
articles  bought,  sold  or  exchanged  for  the  purposes  of  such  transit 
among  the  States,  or  put  in  the  way  of  transit,  may  be  regulated, 
but  this  is  because  they  form  part  of  interstate  trade  or  commerce. 


SECT.  II.  a.]  UNITED    STATES    V.   E.    C.    KNIGHT   CO.  267 

The  fact  tliat  an  article  is  manufactured  for  export  to  another  State 
does  not  of  itself  make  it  an  article  of  interstate  commerce,  and  the 
intent  of  the  manufacturer  does  not  determine  the  time  when  the 
article  or  product  passes  from  the  control  of  the  State  and  belongs 
to  commerce.  This  was  so  ruled  in  Coe  v.  Errol,  116  U.  S.  517,  525, 
in  which  the  question  before  the  court  was  whether  certain  logs  cut 
at  a  place  in  New  Hampshire  and  hauled  to  a  river  town  for  the 
purpose  of  transportation  to  the  State  of  Maine  were  liable  to  be 
taxed  like  other  propert}-  in  the  State  of  New  Hampshire.  Mr.  Jus- 
tice Bradley,  delivering  the  opinion  of  the  court,  said:  "Does  the 
owner's  state  of  mind  in  relation  to  the  goods,  that  is,  his  intent 
to  export  them,  and  his  ptrtial  preparation  to  do  so,  exempt  them 
from  taxation  ?  This  is  the  precise  question  for  solution.  .  .  . 
There  must  be  a  point  of  time  when  they  cease  to  be  governed  ex- 
clusively by  the  domestic  law  and  begin  to  be  governed  and  protected 
by  the  national  law  of  commercial  regulation,  and  that  moment 
seems  to  us  to  be  a  legitimate  one  for  this  purpose,  in  which  they 
commence  their  final  movement  from  the  State  of  their  origin  to  that 
of  their  destination." 

.  And  again,  in  Kidd  v.  Pearson,  128  TJ.  S.  1,  20,  21,  24,  where  the 
question  was  discussed  whether  the  right  of  a  State  to  enact  a 
statute  prohibiting  within  its  limits  the  manufacture  of  intoxicating 
liquors,  except  for  certain  purposes,  could  be  overthrown  by  the 
fact  that  the  manufacturer  intended  to  export  the  liquors  when 
made,  it  was  held  that  the  intent  of  the  manufacturer  did  not  deter- 
mine the  time  when  the  article  or  product  passed  from  the  control 
of  the  State  and  belonged  to  commerce,  and  that,  therefore,  the  stat- 
ute, in  omitting  to  except  from  its  operation  the  manufacture  of 
intoxicating  liquors  within  the  limits  of  the  State  for  export,  did 
not  constitute  an  unauthorized  interference  with  the  right  of  Con- 
gress to  regulate  commerce.  And  Mr.  Justice  Lamar  remarked: 
"No  distinction  is  more  popular  to  the  common  mind,  or  more 
clearly  expressed  in  economic  and  political  literature,  than  that  be- 
tween manufacture  and  commerce.  Manufacture  is  transformation 
—  the  fashioning  of  raw  materials  into  a  change  of  form  for  use. 
The  functions  of  commerce  are  different.  The  buying  and  selling 
and  the  transportation  incidental  thereto  constitute  connuerce;  and 
the  regulation  of  commerce  in  the  constitutional  sense  embraces  the 
regulation  at  least  of  such  transportation.  .  .  H  it  be  held  that 
the  term  includes  the  regulation  of  all  such  manufactures  as  are 
intended  to  be  the  subject  of  commercial  transactions  in  the  future, 
it  is  impossible  to  deny  that  it  would  also  include  all  productive 
industries  that  contemplate  the  same  thing.  The  result  would  be 
that  Congress  would  be  invested,  to  the  exclusion  of  the  States,  with 
the  power  to  regulate,  not  only  manufactures,  but  also  agriculture, 
horticulture,  stock  raising,  domestic  fisheries,  mining  —  in  short, 
every  branch  of  human  industry.     For   is  there  one  of  them  that 


268  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

does  not  contemplate,  more  or  less  clearly,  an  interstate  or  foreign 
market  ?  Does  not  the  wheat  grower  of  the  Northwest  or  the  cotton 
planter  of  the  South,  plant,  cultivate,  and  harvest  his  crop  with  an 
eye  on  the  prices  at  Liverpool,  New  York,  and  Chicago  ?  The  power 
being  vested  in  Congress  and  denied  to  the  States,  it  would  follow  as 
an  inevitable  result  that  the  dut}"  would  devolve  on  Congress  to 
regulate  all  of  these  delicate,  multiform  and  vital  interests  —  inter- 
ests which  in  their  nature  are  and  must  be  local  in  all  the  details  of 
their  successful  management.  .  .  .  The  demands  of  such  a  super- 
vision would  require,  not  uniform  legislation  generally  applicable 
throughout  the  United  States,  but  a  swarm  of  statutes  only  locally 
applicable  and  utterly  inconsistent.  Any  movement  toward  the 
establishment  of  rules  of  production  in  this  vast  country,  with  its 
many  different  climates  and  opportunities,  could  only  be  at  the 
sacrifice  of  the  peculiar  advantages  of  a  large  part  of  the  localities 
in  it,  if  not  of  every  one  of  them.  On  the  other  hand,  any  move- 
ment toward  the  local,  detailed  and  incongruous  legislation  required 
by  such  interpretation  would  be  about  the  widest  possible  departure 
from  the  declared  object  of  the  clause  in  question.  Nor  this  alone. 
Even  in  the  exercise  of  the  power  contended  for,  Congress  would  be 
confined  to  the  regulation,  not  of  certain  branches  of  industry,  how- 
ever numerous,  but  to  those  instances  in  each  and  every  branch 
where  the  producer  contemplated  an  interstate  market.  These  in- 
stances would  be  almost  infinite,  as  we  have  seen;  but  still  there 
would  always  remain  the  possibility,  and  often  it  would  be  the  case, 
that  the  producer  contemplated  a  domestic  market.  In  that  case 
the  supervisory  power  must  be  executed  by  the  State;  and  the 
interminable  trouble  would  be  presented,  that  whether  the  one 
power  or  the  other  should  exercise  the  authority  in  question  would 
be  determined,  not  by  any  general  or  intelligible  rule,  but  by  the 
secret  and  changeable  intention  of  the  producer  in  each  and  every 
act  of  production.  A  situation  more  paralyzing  to  the  State  govern- 
ments, and  more  provocative  of  conflicts  between  the  general  gov- 
ernment and  the  States,  and  less  likely  to  have  been  what  the  frara- 
ers  of  the  Constitution  intended,  it  would  be  difficult  to  imagine." 
And  see  Veazie  v.  Moor,  14  How.  568,  574. 

In  Gibbons  v.  Ogden,  Brown  v.  ]\Iar5'land,  and  other  cases  often 
cited,  the  State  laws,  which  were  held  inoperative,  were  instances 
of  direct  interference  with,  or  regulations  of,  interstate  or  interna- 
tional commerce;  yet  in  Kidd  v.  Pearson  the  refusal  of  a  State  to 
allow  articles  to  be  manufactured  within  her  borders  even  for  export 
was  held  not  to  directly  affect  external  commerce,  and  State  legis- 
lation which,  in  a  great  variety  of  ways,  affected  interstate  com- 
merce and  persons  engaged  in  it,  has  been  frequently  sustained 
because  the  interference  was  not  direct. 

Contracts,  combinations,  or  conspiracies  to  control  domestic  enter- 
prise  in    manufacture,    agriculture,    mining,  production   in   all  its 


SECT.  II.  a.]  UNITED    STATES    V.    E.  C.    KNIGHT    CO.  269 

forms,  or  to  raise  or  lower  prices  or  wages,  might  unquestionably 
tend  to  restrain  external  as  well  as  domestic  trade,  but  the  restraint 
would  be  an  indirect  result,  however  inevitable  and  whatever  its  ex- 
tent, and  such  result  would  not  necessarily  determine  the  object  of 
the  contract,  combination,  or  conspiracy. 

Again,  all  the  authorities  agree  that  in  order  to  vitiate  a  contract 
or  combination  it  is  not  essential  that  its  result  should  be  a  complete 
monopoly;  it  is  sufficient  if  it  really  tends  to  that  end  and  to  deprive 
the  public  of  the  advantages  which  flow  from  free  competition. 
Slight  reflection  will  show  that  if  the  national  power  extends  to  all 
contracts  and  combinations  in  manufacture,  agriculture,  mining,  and 
other  productive  industries,  whose  ultimate  result  may  affect  exter- 
nal commerce,  comparatively  little  of  business  operations  and  affairs 
would  be  left  for  State  control. 

It  was  in  the  light  of  well-settled  principles  that  the  act  of  July 
2,  1890,  was  framed.  Congress  did  not  attempt  thereby  to  assert 
the  power  to  deal  with  monopoly  directly  as  such;  or  to  limit  and 
restrict  the  rights  of  corporations  created  by  the  States  or  the  citi- 
zens of  the  States  in  the  acquisition,  control,  or  disposition  of  prop- 
erty; or  to  regulate  or  prescribe  the  price  or  prices  at  which  such 
property  or  the  products  thereof  should  be  sold;  or  to  make  criminal 
the  acts  of  persons  in  the  acquisition  and  control  of  property  which 
the  States  of  their  residence  or  creation  sanctioned  or  permitted. 
Aside  from  the  provisions  applicable  where  Congress  miglit  exercise 
municipal  power,  what  the  law  struck  at  was  combinations,  contracts, 
and  conspiracies  to  monopolize  trade  and  commerce  among  the 
several  States  or  with  foreign  nations;  but  the  contracts  and  acts  of 
the  defendants  related  exclusively  to  the  acquisition  of  the  Philadel- 
phia refineries  and  the  business  of  sugar  refining  in  Pennyslvania, 
and  bore  no  direct  relation  to  commerce  between  the  States  or  with 
foreign  nations.  The  object  was  manifestly  private  gain  in  the 
manufacture  of  the  commodity,  but  not  through  the  control  of  inter- 
state or  foreign  commerce.  It  is  true  that  the  bill  alleged  that  the 
products  of  these  refineries  were  sold  and  distributed  among  the 
several  States,  and  that  all  the  companies  were  engaged  in  trade  or 
commerce  with  the  several  States  and  with  foreign  nations;  but  this 
was  no  more  than  to  say  that  trade  and  commerce  served  manufac- 
ture to  fulfil  its  function.  Sugar  was  refined  for  sale,  and  sales 
were  probably  made  at  Philadelphia  for  consumption,  and  undoubt- 
edly for  resale  by  the  first  purchasers  throughout  Pennsylvania  and 
other  States,  and  refined  sugar  was  also  forwarded  by  the  companies 
to  other  States  for  sale.  Nevertheless  it  does  not  follow  that  an 
attempt  to  monopolize,  or  the  actual  monopoly  of,  the  manufacture 
was  an  attem])t,  whether  executory  or  consummated,  to  monopolize 
commerce,  even  though,  in  order  to  dis[)Ose  of  the  product,  the  in- 
strumentality of  commerce  was  necessarily  invoked.  There  was  noth- 
ing in  the  proofs  to  indicate  any  intention  to  put  a  restraint  upon 


270  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

trade  or  commerce,  and  the  fact,  as  we  have  seen ,  that  trade  or  com- 
merce might  be  indirectly  affected  was  not  enough  to  entitle  com- 
plainants to  a  decree.  The  subject-matter  of  the  sale  was  shares  of 
manufacturing  stock,  and  the  relief  sought  was  the  surrender  of 
property  which  had  already  passed  and  the  suppression  of  the  alleged 
monopoly  in  manufacture  by  the  restoration  of  the  status  quo  before 
the  transfers;  yet  the  act  of  Congress  only  authorized  the  Circuit 
Courts  to  proceed  by  way  of  preventing  and  restraining  violations 
of  the  act  in  respect  of  contracts,  combinations,  or  conspiracies  in 
r3straint  of  interstate  or  international  trade  or  commerce. 
[The  decree  dismissing  the  bill  is  affirmed.]^ 


Por  more  recent  cases  see  Appendix  A. 


v^-^- 


UNITED   STATES   v.    HOLLIDAY. 
SAME    V.    HAAS. 

3  Wallace,  407.     1865. 


These  were  indictments,  independent  of  each  other,  for  violations 
of  the  act  of  Congress  of  February  13,  1862,  12  Stat,  at  Large,  330, 
which  declares  that  if  any  person  shall  sell  any  spirituous  liquors 
"to  any  Indian  under  the  charge  of  any  Indian  superintendent  or 
Indian  agent  appointed  by  the  United  States,  he  shall,  on  convic- 
tion thereof  before  the  proper  District  Court  of  the  United  States. " 
be  fined  and  imprisoned. 

This  act  of  1862  was  amendatory  of  an  act  of  June  30,  1834,  4 
Stat,  at  Large,  732,  declaring  that  if  any  person  sold  liquor  to  an 
Indian  in  the  Indian  country  he  should  forfeit  five  hundred  dollars. 

These  indictments  were  both  in  District  Courts  of  the  United 
States  —  the  one  against  Haas  in  the  District  Court  for  Minnesota 
(there  not  being  at  the  time  of  the  indictment  any  Circuit  Court  as 
yet  established  in  Minnesota),  and  that  against  Holliday  in  the  Dis- 
trict Court  for  Michigan, — and  under  the  act  of  August  8,  1846, 
'^9  id.  73,  authorizing  the  remission  of  indictments  from  the  District 
to  the  Circuit  Courts,  they  were  both  removed  into  the  Circuit 
Courts;  the  case  of  Haas,  after  he  had  been  convicted  of  the  offence 
charged  and  while  a  motion  in  arrest  of  judgment  was  pending  and 
undetermined  in  the  District  Court. 

In  Haas's  Case,  the  indictment  charged  that  the  defendant  had 
sold  the  liquor  to  a  Winnebago  Indian,  in  the  State  of  Minnesota, 
under  the  charge  of  an  Indian  agent  of  the  United  States;  but  it 

^  Mr.  Justice  Harlan  delivered  a  dissenting  opinion. 


SECT.  11.  a.]  UNITED   STATES   V.   HOLLIDAY.  271 

did  not  allege  that  the  loctis  in  quo  was  within  the  reservation  be- 
longing to  the  Winnebago  tribe,  or  xvithin  any  Indian  reservation,  or 
within  the  Indian  country. 

Upon  this  indictment  the  judges  of  the  Circuit  Court  were  divided 
in  opinion  on  the  questions: 

1.   Whether,  under  the  act  of  February  13,  1862,  the  offence  fori 
which  the  defendant  is  indicted  was  one  of  which  the  Circuit  Court;  f 
could  have  original  jurisdiction  ?  / 

2^  Whether,  under  the  facts  above  stated,  any  court  of  the 
United  States  had  jurisdiction  of  the  offence  ? 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  second  question  in  that  [the  Haas]  case  is  this:  whether, 
under  the  facts  above  stated,  any  court  of  the  United  States  had 
jurisdiction  of  the  offence  ? 

The  facts  referred  to  are,  concisely,  that   spirituous  liquor  was/ 
sold  within  the  territorial  limits  of  the  State  of  Minnesota  and  with- 
out any  Indian  reservation,  to  an  Indian  of  the  Winnebago"  tribe,( 
under  the  charge  of  the  United  States  Indian  agent  for  said  tribe. 

~It  is  denied  by  the  defendant  that  the  act  of  Congress  was  in- 
tended to  apply  to  such  a  case;  and,  if  it  was,  it  is  denied  that  it  can 
be  so  applied  under  the  Constitution  of  the  United  States.  On  the 
first  proposition  the  ground  taken  is,  that  the  policy  of  the  act,  and 
its  reasonable  construction,  limit  its  operation  to  the  Indian  coun- 
try, or  to  reservations  inhabited  by  Indian  tribes.  The  policy  of  the 
act  is  the  protection  of  those  Indians  who  are,  by  treaty  or  other- 
wise, under  the  pupilage  of  the  government,  from  the  debasing 
influence  of  the  use  of  spirits;  and  it  is  not  easy  to  perceive  why 
that  policy  should  not  require  their  preservation  from  this,  to  them, 
destructive  poison,  when  they  are  outside  of  a  reservation,  as  well 
as  within  it.     The  evil  effects  are  the  same  in  both  cases. 

But  the  act  of  1862  is  an  amendment  to  the  20th  section  of  the 
act  of  June  30,  1834,  and,  if  we  observe  what  the  amendment  is,  all 
doubt  on  this  question  is  removed.  The  tirst  act  declared  that  if 
any  person  sold  spirituous  liquor  to  an  Indian  in  the  Indian  coun- 
try  he  should  forfeit  five  hundred  dollars.  The  amended  act  pun- 
ishes any  person  who  shall  sell  to  an  Indian  under  charge  of  an 
Indian  agent,  or  superintendent,  appointed  by  the  United  States. 
The  limitation  to  the  Indian  country  is  stricken  out,  and  that  re- 
quiring the  Indian  to  be  under  charge  of  an  agent  or  superintendent 
is  substituted.  It  cannot  be  doubted  that  the  purpose  of  the  amend- 
ment was  to  remove  the  restriction  of  the  act  to  the  Indian  country, 
and  to  make  parties  liable  if  they  sold  to  Indians  under  the  charge 
of  a  superintendent  or  agent,  wherever  they  might  be. 

It  is  next  asserted  that  if  the  act  be  so  construed  it  is  without  any 
constitutional  authority  in  its  application  to  the  case  before  us. 


( 


272  THE   LEGISLATIVE    DEPARTMENT,  [CHAP.  IV, 

We  are  not  furnished  with  any  argument  by  either  of  the  defend- 
.  ants  on  this  branch  of  the  subject,  and  may  not  therefore  be  able  to 
state  with  entire  accuracy  the  position  assumed.  But  we  understand 
it  to  be  substantially  this:  that  so  far  as  the  act  is  intended  to 
operate  as  a  police  regulation  to  enforce  good  morals  within  the 
limits  of  a  State  of  the  Union,  Lhat  power  belongs  exclusively  to 
the  State,  and  there  is  no  warrant  in  the  Constitution  for  its  exer- 
cise by  Congress.  If  it  is  an  attempt  to  regulate  commerce,  then 
the  commerce  here  regulated  is  a  commerce  wholly  within  the  State, 
among  its  own  inhabitants  or  citizens,  and  is  not  within  the  powers 
conferred  on  Congress  by  the  commercial  clause, 
/  The  act  in  question,  although  it  may  partake  of  some  of  the  quali- 
(ties  of  those  acts  passed  by  State  legislatures,  which  have  been 
I  referred  to  the  police  powers  of  the  States,  is,  we  think,  still  more 
Vclearly  entitled  to  be  called  a  regulation  of  commerce.  "Com- 
merce," says  Chief  Justice  Marshall,  in  the  opinion  in  Gibbons  v. 
Ogden,  to  which  we  so  often  turn  with  profit  when  this  clause  of  the 
Constitution  is  under  consideration,  "commerce  undoubtedly  is 
traffic,  but  it  is  something  more;  it  is  intercourse."  The  law  be- 
'fore  us  professes  to  regulate  traffic  and  intercourse  with  the  Indian 
tribes.  It  manifestly  does  both.  It  relates  to  buying  and  selling 
/^nd  exchanging  commodities,  which  is  the  essence  of  all  commerce, 
and  it  regulates  the  intercourse  between  the  citizens  of  the  United 
^tates  and  those  tribes,  which  is  another  branch  of  commerce,  and 
'^  very  important  one. 

If  the  act  under  consideration  is  a  regulation  of  commerce,  as  it 

undoubtedly  is,  does  it  regulate  that  kind  of  commerce  which   is 

placed  within  the  control  of  Congress  by  the  Constitution.?     The 

words  of  that  instrument  are:  "Congress  shall  have  power  to  regu- 

/late  commerce  with  foreign  nations,  and  among  the  several  States, 

I  and  with^the  Indian_bribes."     Commerce  with  foreign  nations,  with- 

/out  doubt, ^eans  comnierce  between  citizens  of  the  United  States 

[and   citizens  or  subjects   of   foreign    governments,  as   individuals. 

And  so  commerce  with  the  Indian  tribes  means  commerce  with  the 

\  individuals   composing   those   tribes.     The  act  before  us  describes 

this  precise  kind  of  traffic  or  commerce,  and,  therefore,  comes  within 

the  terms  of  the  constitutional  provision. 

-  Is  there  anything  in  the  fact  that  this  power  is  to  be  exercised 
within  the  limits  of  a  State,  which  renders  the  act  regulating  it 
unconstitutional  ? 

In  the  same  opinion  to  which  we  have  just  before  referred.  Judge 
Marshall,  in  speaking  of  the  power  to  regulate  commerce  with  for- 
eign States,  says,  "The  power  does  not  stop  at  the  jurisdictional 
limits  of  the  several  States.  It  would  be  a  very  useless  power  if  it 
could  not  pass  those  lines."  "If  Congress  has  power  to  regulate  it, 
that  power  must  be  exercised  wherever  the  subject  exists."  It  fol- 
lows from  these  propositions,  which  seem  to  be  incontrovertible,  that 


•^ 


y  dLj'yytiA.A^jU'^,^^ 


SECT.  II.  b.  1.]       WILLSON    V.    BLACKBIED   CEEEK   MARSH   CO.  273 

if  commerce,  or  traffic,  or  intercourse,  is  carried  on  with  an  Iudian\ 
tribe,  or  with  a  member  of  such  tribe,  it  is  subject  to  be  reguhited  by) 
Congress,  although  within  the  limits  of  a  State.  The  locality  of  the 
traffic  can  have  nothing  to  do  with  the  power.  The  right  to  exercise 
it  in  reference  to  any  Indian  tribe,  or  any  person  who  is  a  juember 
of  such  tribe,  is  absolute,  without,  reference  to  the  locality  of  the 
traffic,  or  the  locality  of  the  tribe,  or  of  the  member  of  the  tribe 
with  whom  it  is  carried  on.  It  is  not,  however,  intended  by  these 
remarks  to  imply  that  this  clause  of  the  Constitution  authorizes  Con- 
gress to  regulate  any  other  commerce,  originated  and  ended  within 
the  limits  of  a  single  State,  than  commerce  with  the  Indian  tribes. 


b.    Validity/  of  /State  Regulations. 

1.  Local  Provisions;  Control  of  Harbors,  Bridges,  Dams, 
and  Ferries- 


WILLSON  V.   BLACKBIRD  CREEK   MARSH   COMPANY. 
2  Peters,  2i5;  8  Curtis,  105.     1829. 


'^ii 


\^ 


Error  to  the  High  Court  of  Errors  and  Appeals  of  Delaware. 

The  defendants,  having  been  incorporated  by  the  General  Assembly  \  '^<' 
of  Delaware,  and  empowered  to  hold  and  improve  certain  marsh 
lands,  were  authorized  for  that  purpose  to  make  a  dam  across  the 
Blackbird  Marsh  Creek.  They  did  so,  and  the  plaintiffs,  being  the 
owners  of  a  sloop,  regularly  licensed  and  enrolled  for  the  coasting 
trade,  broke  down  the  dam,  and  the  defendants  sued  them  in  tres- 
pass. The  plaintiffs  jDleaded,  in  substance,  that  the  place  where  the' 
supposed  trespass  is  alleged  to  have  been  committed,  was,  and  still 
is,  part  and  parcel  of  said  Blackbird  Creek,  a  public  and  common 
navigable  creek,  in  the  nature  of  a  highway,  in  which  the  tides  have 
always  flowed  and  reflowed  ;  in  which  there  was,  and  of  right  ought 
to  have  been,  a  certain  common  and  public  way,  in  the  nature  of 
highway,  for  all  the  citizens  of  the  State  of  Delaware  and  of  the 
United  States,  with  sloops  or  other  vessels  to  navigate,  sail,  pass,  and 
repass,  into,  over,  through,  in,  and  upon  the  same,  at  all  times  of  the 
year,  at  their  own  free  will  and  pleasure. 

Therefore,  the  said  defendants,  being  citizens  of  the  State  of 
Delaware  and  of  the  United  States,  with  the  said  sloop,  sailed  in  and 
upon  the  said  creek,  in  which,  &c.,  as  they  lawfully  might  for  the 
cause  aforesaid ;  and  because  the  said  gum  piles,  &c.,  bank  and  dam, 

18 


X 


274  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

in  the  said  declaration  mentioned,  &c.,  had  been  wrongfully  erected, 
and  were  there  wrongfully  continued  standing,  and  being  in  and 
across  said  navigable  creek,  and  obstructing  the  same,  so  that  without 
pulling  up,  cutting,  breaking  and  destroying  the  said  gum  piles,  &c., 
bank  and  dam  respectively,  the  said  defendants  could  not  pass  and 
repass  with  tlie  said  sloop,  into,  through,  over,  and  along  the  said 
navic'-able  creek.  And  that  the  defendants,  in  order  to  remove  the 
said  obstructions,  pulled  up,  cut,  broke,  &c.,  as  in  the  said  declara- 
tion mentioned,  doing  no  unnecessary  damage  to  the  said  Blackbird 
Creek  Marsh  Company ;  which  is  the  same  supposed  trespass,  &c. 

The  highest  court  of  the  State  having  rendered  a  judgment  in  favor 
of  plaintiffs  below,  this  writ  of  error  was  brought. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  jurisdiction  of  the  court  being  established,  the  more  doubtful 
question  is  to  be  considered,  whether  the  act  incorporating  the  Black- 
bird Creek  Marsh  Company  is  repugnant  to  the  Constitution,  so  far 
as  it  authorizes  a  dam  across  the  creek.  The  plea  states  the  creek 
to  be  navigable,  in  the  nature  of  a  highway,  through  which  the  tide 
ebbs  and  flows. 

The  act  of  assembly  by  which  the  plaintiffs  were  authorized  to 
construct  their  dam,  shows  plainly  that  this  is  one  of  those  many 
creeks,  passing  through  a  deep  level  marsh  adjoining  the  Delaware, 
up  which  the  tide  flows  for  some  distance.  The  value  of  the  property 
on  its  banks  must  be  enhanced  by  excluding  the  water  from  the 
marsh,  and  the  health  of  the  inhabitants  probably  improved.  Meas- 
ures calculated  to  produce  these  objects,  provided  they  do  not  come 
into  collision  with  the  powers  of  the  general  government,  are  un- 
doubtedly within  those  which  are  reserved  to  the  States.  But  the 
measure  authorized  by  this  act  stops  a  navigable  creek,  and  must  be 
supposed  to  abridge  the  rights  of  those  who  have  been  accustomed 
to  use  it.  But  this  abridgment,  unless  it  comes  in  conflict  with  the^ 
constitution  or  a  law  of  the  United  States,  is  an  affair  between  the 
government  of  Delaware  and  its  citizens^  of  which  this  court  can  take 
no  cognizance. 

The  counsel  for  the  plaintiffs  in  error  insist  that  it  comes  in  con- 
flict with  the  power  of  the  United  States  "  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States." 

/  If  Congress  had  passed  any  act  which  bore  upon  the  ease  —  any  act 
fin  execution  of  the  power  to  regulate  commerce,  the  object  of  Avhich 
(  was  to  control  State  legislation  over  those  small  navigable  creeks  into 
;  which  the  tide  flows,  and  which  abound  throughout  the  lower  coun- 
'  try  of  the  middle  and  southern  States — we  should  feel  not  much 
\  difficulty  in  saying  that  a  State  law  coming  in  conflict  with  such  act 
Vwould  be  void.  But  Congress  has  passed  no  such  act.  The  repug- 
fnancy  of  the  law  of  Delaware  to  the  Constitution  is  placed  entirely 
on  its  repugnancy  to  the,  power  to  regulate  commerce  with  foreign 


"^ 


SECT.  II.  b.  1.]  COOLEY   V.    BOARD   OF    WARDENS.  275 

nations  and  among  the  several  States ;  a  power  which  has  not  been 
so  exercised  as  to  affect  the  question. 

We  do  not  think  that  the  act  empowering  the  Blackbird  Creek 
Marsh  Company  to  place  a  dam  across  the  creek,  can,  under  all  the 
circumstances  of  the  case,  be  considered  as  repugnant  to  the  power 
to  regulate  commerce  in  its  dormant  state,  or  as  being  in  conflictwtttr 
any  law  passed  on  the  subject. 

There  is  no  error,  and  the  judgment  is  affirmed. 


COOLEY  V.  BOAKD   OF  WARDENS   OE  THE   POET   OF 
PHILADELPHIA. 

12  Howard,  299;  19  Curtis,  143.     1851. 

CuKTis,  J.,  delivered  the  opinion  of  the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme 
Court  of  the  Commonwealth  of  Pennsylvania. 

They  are  actions  to  recover  half-pilotage  fees  under  the  29th  sec- 
tion of  the  act  of  the  legislature  of  Pennsylvania,  passed  on  the 
second  day  of  March,  1803.  The  plaintiff  in  error  alleges  that  the 
highest  court  of  the  State  has  decided  against  a  right  claimed  by 
him  under  the  Constitution  of  the  United  States.  That  right  is,  to 
be  exempted  from  the  payment  of  the  sums  of  money  demanded 
pursuant  to  the  State  law  above  referred  to,  because  that  law  contra- 
venes several  provisions  of  the  Constitution  of  the  United  States. 

The  particular  section  of  the  State  law  drawn  in  question  is  as 
follows :  — 

"  That  every  ship  or  vessel  arriving  from,  or  bound  to  any  foreign 
port  or  place,  and  every  ship  or  vessel  of  the  burden  of  seventy-five 
tons  or  more,  sailing  from,  or  bound  to  any  port  not  within  the  Kiver 
Delaware,  shall  be  obliged  to  receive  a  pilot.  And  it  shall  be  the 
duty  of  the  master  of  every  such  ship  or  vessel,  within  thirty-six 
hours  next  after  the  arrival  of  such  ship  or  vessel  at  the  city  of  Phil- 
adelphia, to  make  report  to  the  master-warden  of  the  name  of  such 
ship  or  vessel,  her  draught  of  water,  and  the  name  of  the  pilot  who 
shall  have  conducted  her  to  the  port.  And  when  any  such  vessel 
shall  be  outward  bound,  the  master  of  such  vessel  shall  make  known 
to  the  wardens  the  name  of  such  vessel,  and  of  the  pilot  who  is  to 
conduct  her  to  the  capes,  and  her  draught  of  water  at  that  time.  And 
it  shall  be  the  duty  of  the  wardens  to  enter  every  such  vessel  in  a 
book  to  be  by  them  kept  for  that  purpose,  without  fee  or  reward. 
And  if  the  master  of  any  ship  or  vessel  shall  neglect  to  make  su(;h 
report,  he  shall  forfeit  and  pay  the  sum  of  f  60.  And  if  the  master 
of  any  such  ship  or  vessel  shall  ref\ise  or  neglect  to  take  a  pilot,  the 
master,  owner,  or  consignee  of  such  vessel,  shall  forfeit  and  pay  to 


276  THE    LEGISLATIVE    DEPARTMENT,  [CHAP.  IV. 

the  warden  aforesaid,  a  sum  equal  to  the  half-pilotage  of  such  ship  or 
vessel,  to  the  use  of  the  Society  for  the  Relief,  &c.,  to  be  recovered 
as  pilotage  in  the  manner  hereinafter  directted  :  Provided  always,  that 
where  it  shall  appear  to  the  warden  that,  in  case  of  an  inward  bound 
vessel,  a  pilot  did  not  offer  before  she  had  reached  Reedy  Island ;  or, 
in  case  of  an  outward  bound  vessel,  that  a  pilot  could  not  be  obtained 
lor  twenty-four  hours  after  such  vessel  was  ready  to  depart,  the 
])enalty  aforesaid,  for  not  having  a  pilot,  shall  not  be  incurred." 
This  is  one  section  of  "  An  Act  to  establish  a  Board  of  Wardens  for 
the  Port  of  Philadelpliia,  and  for  the  Regulation  of  Pilots  and  Pilot- 
ages, &c.,"  and  the  scope  of  the  act  is,  in  conformity  with  the  title,  to 
regulate  the  whole  subject  of  the  pilotage  of  that  port. 

We  think  this  particular  regulation  concerning  half-pilotage  fees, 
is  an  appropriate  part  of  a  general  system  of  regulations  of  this  sub- 
ject. Testing  it  by  the  practice  of  commercial  States  and  countries 
legislating  on  this  subject,  we  find  it  has  usuall}'  been  deemed  neces- 
sary to  niake  similar  provisions.  Xuraerous  laws  of  this  kind  are 
cited  in  the  learned  aigument  of  the  counsel  for  the  defendant  in 
error;  and  their  fitness,  as  part  of  a  system  of  pilotage,  in  many 
places,  may  be  inferred  from  their  existence  in  so  many  different 
States  and  countries.  Like  other  laws,  they  are  framed  to  meet  the 
most  usual  cases,  quce  freqnentius  acciihint ;  they  rest  upon  the  pro- 
priety of  securing  lives  and  property  exposed  to  the  perils  of  a  dan- 
gerous navigation,  by  taking  on  board  a  person  peculiarly  skilled  to 
encounter  or  avoid  them  ;  upon  the  policy  of  discouraging  the  com- 
manders of  vessels  from  refusing  to  receive  such  persons  on  board  at 
the  proper  times  and  places  ;  and  upon  the  expediency,  and  even  in- 
trinsic justice,  of  not  suffering  those  who  have  incurred  labor,  and 
expense,  and  danger,  to  place  themselves  in  a  position  to  render  im- 
portant service  generally  necessary,  to  go  unrewarded,  because  the 
master  of  a  particular  vessel  either  rashly  refuses  their  proffered 
assistance,  or,  contrary  to  the  general  experiepce,  does  not  need  it. 
There  are  many  cases,  in  which  an  offer  to  perform,  accompanied  by 
present  ability  to  perform,  is  deemed  by  law  equivalent  to  perform- 
ance. The  laws  of  commercial  States  and  countries  have  made  an 
offer  of  pilotage  service  one  of  those  cases;  and  we  cannot  pronounce 
a  law  which  does  this,  to  be  so  far  removed  from  the  usual  and  fit 
scope  of  laws  for  the  regulation  of  pilots  and  pilotage,  as  to  be 
deemed,  for  this  cause,  a  covert  attempt  to  legislate  upon  another 
subject  under  the  appearance  of  legislating  on  this  one. 

It  remains  to  consider  the  objection,  that  it  is  repugnant  to  the 
third  clause  of  the  eighth  section  of  the  first  article.  "The  congress 
shall  have  power  to  regulate  commerce  \vith  foreign  nations  and 
among  the  several  States,  and  with  the  Indian  tribes." 

That  the  power  to  regulate  commerce  includes  the  regulation  of 
navigation,  we  consider  settled.     And  when  we  look  to  the  nature  of 


SECT.  11.  b.  1.]  COOLEY    V.    BOARD    OF   WARDENS.  277 

the  service  performed  by  pilots,  to  the  relations  which  that  service 
and  its  compensations  bear  to  navigation  between  the  several  States, 
and  between  the  ports  of  the  United  States  and  foreign  countries,  we 
are  brought  to  the  conclusion,  that  the  regulation  of  the  qualifications 
of  pilots,  of  the  modes  and  times  of  offering  and  rendering  their  ser- 
vices, of  the  responsibilities  which  shall  rest  upon  them,  of  the  powers 
they  shall  possess,  of  the  compensation  they  may  demand,  and  of  the 
penalties  by  which  their  rights  and  duties  may  be  enforced,  do  con- 
stitute regulations  of  navigation,  and  consequently  of  commerce, 
within  the  just  meaning  of  this  clause  of  the  Constitution. 

The  power  to  regulate  navigation  is  the  power  to  prescribe  rules  in 
conformity  with  which  navigation  must  be  carried  on.  It  extends  to 
the  persons  who  conduct  it,  as  well  as  to  the  instruments  used.  Ac- 
cordingly, the  first  Congress  assembled  under  the  Constitution  passed 
laws,  requiring  the  masters  of  ships  and  vessels  of  the  United  States 
to  be  citizens  of  the  United  States,  and  established  many  rules  for  the 
government  and  regulation  of  officers  and  seamen.  1  Stats,  at  Large, 
55,  131.  These  have  been  from  time  to  time  added  to  and  changed, 
and  we  are  not  aware  that  their  validity  has  been  questioned. 

Now,  a  pilot,  so  far  as  respects  the  navigation  of  the  vessel  in  that 
part  of  the  voyage  which  is  his  pilotage-ground,  is  the  temporary 
master  charged  with  the  safety  of  the  vessel  and  cargo,  and  of  the 
lives  of  those  on  board,  and  intrusted  with  the  command  of  the  crew. 
He  is  not  only  one  of  the  persons  engaged  in  navigation,  but  he 
occupies  a  most  important  and  responsible  place  among  those  thus 
engaged.  And  if  Congress  has  power  to  regulate  the  seamen  who 
assist  the  pilot  in  the  management  of  the  vessel,  a  power  never 
denied,  we  can  perceive  no  valid  reason  why  the  pilot  should  be  be- 
yond the  reach  of  the  same  power.  It  is  true  that,  according  to  the 
usages  of  modern  commerce  on  the  ocean,  the  pilot  is  on  board  only 
during  a  part  of  the  voyage  between  ports  of  different  States,  or  be- 
tween ports  of  the  United  States  and  foreign  countries ;  but  if  he  is 
on  board  for  such  a  purpose  and  during  so  much  of  the  voyage  as  to 
be  engaged  in  navigation,  the  power  to  regulate  navigation  extends 
to  him  while  thus  engaged,  as  clearly  as  it  would  if  he  were  to  remain 
on  board  throughout  the  whole  passage,  from  port  to  port.  For  it  is 
a  power  which  extends  to  every  part  of  the  voyage,  and  may  regulate 
those  who  conduct  or  assist  in  conducting  navigation  in  one  part  of 
a  voyage  as  much  as  in  another  part,  or  during  the  whole  voyage. 

Nor  should  it  be  lost  sight  of,  that  this  subject  of  the  regulation  of 
pilots  and  pilotage  has  an  intimate  connection  with,  and  an  important 
relation  to,  the  general  subject  of  commerce  with  foreign  nations  and 
among  the  several  States,  over  which  it  was  one  main  object  of  the 
Constitution  to  create  a  national  control.  Conflicts  between  the  laws, 
of  neighboring  States,  and  discriminations  favorable  or  adverse  to 
commerce  with  particular  foreign  nations,  might  be  created  by  State 
laws  regulating  pilotage,  deeply  affecting  that  equality  of  commercial 


278  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

rio-hts,  and  that  freedom  from  State  interference,  which  those  who 
formed  the  Constitution  were  so  anxious  to  secure,  and  which  the  ex- 
perience of  more  than  half  a  century  has  taught  us  to  vahie  so  highly. 
The  apprehension  of  this  danger  is  not  speculative  merely.  For,  in 
1837,  Congress  actually  interposed  to  relieve  the  commerce  of  the  coun- 
try from  serious  embarrassment,  arising  from  the  laws  of  different 
States,  situate  upon  waters  which  are  the  boundary  between  them. 
This  was  done  by  an  enactment  of  the  2(1  of  March,  1837,  5  Stats,  at 
Large,  153,  in  the  following  words  :  — 

"  Be  it  enacted,  that  it  shall  and  may  be  lawful  for  the  master  or  com- 
mander of  any  vessel  coming  into  or  going  out  of  any  port  situate  upon 
waters  which  are  the  boundary  between  two  States,  to  employ  any  pilot  duly 
licensed  or  authorized  by  tha  laws  of  either  of  the  States  bounded  on  tlie  said 
waters,  to  pilot  said  vessel  to  or  from  said  port,  any  law,  usage,  or  custom  to 
the  contrary  notwithstanding." 

The  act  of  1789,  1  Stats,  at  Large,  54,  already  referred  to,  contains 
a  clear  legislative  exposition  of  the  Constitution  by  the  first  Congress, 
to  the  effect  that  the  power  to  regulate  pilots  was  conferred  on  Con- 
gress by  the  Constitution  ;  as  does  also  the  act  of  March  the  2d,  1837, 
the  terms  of  which  have  just  been  given.  The  weight  to  be  allowed 
to  this  contemporaneous  construction,  and  the  practice  of  Congress 
under  it,  has,  in  another  connection,  been  adverted  to.  And  a  ma- 
jority of  the  court  are  of  opinion,  that  a  regulation  of  pilots  is  a 
regulation  of  commerce,  within  the  grant  to  Congress  of  the  com- 
mercial power,  contained  in  the  third  clause  of  the  eighth  section  of 
the  first  article  of  the  Constitution. 

It  becomes  necessary,  therefore,  to  consider  whether  this  law  of 
Pennsylvania,  being  a  regulation  of  commerce,  is  valid. 

The  act  of  Congress  of  the  7th  of  August,  1789,  §  4,  is  as  follows: 

"  That  all  pilots  iti  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States  .shall  continue  to  be  regulated  in  conformity  with  the  existing  laws  of 
the  States,  respectively,  wherein  such  pilots  may  be,  or  with  .such  laws  as  the 
States  may  respectively  hereafter  enact  for  the  purpose,  until  further  legislative 
provision  shall  be  made  by  Congress." 

If  the  law  of  Pennsylvania,  now  in  question,  had  been  in  existence 
at  the  date  of  this  act  of  Congress,  we  might  hold  it  to  have  been 
adopted  by  Congress,  and  thus  made  a  law  of  the  United  States,  and 
so  valid.  Because  this  act  does,  in  effect,  give  the  force  of  an  act  of 
Congress,  to  the  then  existing  State  laws  on  this  subject,  so  long  as 
they  should  continue  unrepealed  by  the  State  which  enacted  them. 

But  the  law  on  which  these  actions  are  founded,  was  not  enacted 
till  1803.  What  effect  then  can  be  attributed  to  so  much  of  the  act  of 
1789,  as  declares  that  pilots  shall  continue  to  be  regulated  in  con- 
formity "  with  such  laws  as  the  States  may  respectively  hereafter 
enact  for  the  purpose,  until  further  legislative  provision  shall  be 
made  by  Congress  "  ? 


SECT.  11.  b.  1.]  COOLEY   V.    BOARD    OP   WARDENS.  279 

If  the  States  were  divested  of  the  power  to  legislate  on  this  subject 
by  the  grant  of  the  commercial  power  to  Congress,  it  is  plain  this  act 
could  not  confer  upon  them  power  thus  to  legislate.  If  the  Constitu- 
tion excluded  the  States  from  making  any  law  regulating  commerce, 
certainly  Congress  cannot  regrant,  or  in  any  manner  recouvey  to  the 
States  that  povver.  And  yet  this  act  of  1789  gives  its  sanction  only 
to  laws  enacted  by  the  States.  This  necessarily  implies  a  constitu- 
tional power  to  legislate ;  for  only  a  rule  created  by  the  sovereign 
power  of  a  State  acting  in  its  legislative  capacity,  can  be  deemed  a 
law,  enacted  by  a  State ;  and  if  the  State  has  so  limited  its  sovereign 
power  that  it  no  longer  extends  to  a  particular  subject,  manifestly  it 
cannot,  in  any  proper  sense,  be  said  to  enact  laws  thereon.  Enter- 
taining these  views,  we  are  brought  directly  and  unavoidably  to  the 
consideration  of  the  question,  whether  the  grant  of  the  commercial 
power  to  Congress  did  per  se  deprive  the  States  of  all  power  to  reg- 
ulate pilots.  This  question  has  never  been  decided  by  this  court, 
nor,  in  our  judgment,  has  any  case  depending  upon  all  the  considera- 
tions which  must  govern  this  one,  come  before  this  court.  The  grant 
of  commercial  power  to  Congress  does  not  contain  any  terms  which 
expressly  exclude  the  States  from  exercising  an  authorit}-  over  its 
subject-matter.  If  they  are  excluded,  it  must  be  because  the  nature 
of  the  power,  tlius  granted  to  Congress,  requires  that  a  similar  author- 
ity should  not  exist  in  the  States.  If  it  were  conceded  on  the  one 
side,  that  the  nature  of  this  power,  like  that  to  legislate  for  the  Dis- 
trict of  Columbia,  is  absolutely  and  totally  repugnant  to  the  existence 
of  similar  power  in  the  States,  probably  no  one  would  deny  that  the 
grant  of  the  power  to  Congress,  as  effectually  and  perfectl}'  excludes 
the  States  from  all  future  legislation  on  the  subject,  as  if  express 
words  had  been  used  to  exclude  them.  And  on  the  other  hand,  if  it 
were  admitted  that  the  existence  of  this  power  in  Congress,  like  the 
power  of  taxation,  is  compatible  with  the  existence  of  a  similar  power 
in  the  States,  then  it  would  be  in  conformity  with  the  contemporary 
exposition  of  the  Constitution  (Federalist,  No.  32),  and  with  the 
judicial  construction,  given  from  time  to  time  by  this  court,  after  the 
most  deliberate  consideration,  to  hold  that  the  mere  grant  of  such  a 
power  to  Congress  did  not  imply  a  prohibition  on  the  States  to  exer- 
cise the  same  power ;  that  it  is  not  the  mere  existence  of  such  a 
power,  but  its  exercise  by  Congress,  which  may  be  incompatible  with 
the  exercise  of  the  same  power  by  the  States,  and  that  the  States  may 
legislate  in  the  absence  of  congressional  regulations.  Sturges  v. 
Crowninshield,  4  Wheat.  193;  Houston  v.  Moore,  5  ^Yheat.  1;  Wil- 
son V.  Blackbird  Creek  Co.,  2  Pet.  251. 

The  diversities  of  opinion,  therefore,  which  have  existed  on  this 
subject,  have  arisen  from  the  different  views  taken  of  the  nature  of 
this  power.  But  when  the  nature  of  a  power  like  this  is  spoken  of, 
when  it  is  said  that  the  nature  of  the  power  requires  that  it  should 
be  exercised  exclusively  by  Congress,  it  must  be  intended  to  refer  to 


280  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

the  subjects  of  that  power,  and  to  say  they  are  of  such  a  nature  as 
to  require  exclusive  legislation  by  Congress.  Now,  the  power  to 
regulate  commerce,  embraces  a  vast  field,  containing  not  only  many, 
but  exceedingly  various  subjects,  quite  unlike  in  their  nature  ;  some 
imperatively  demanding  a  single  uniform  rule,  operating  equally  on 
the  commerce  of  the  United  States  in  every  port ;  and  some,  like 
the  subject  now  in  question,  as  imperatively  demanding  that  diver- 
sity,  which  alone  can  meet  the  local  necessities  of  navigation. 

Either  absolutely  to  affirm  or  deny  that  the  nature  of  this  power 
requires  exclusive  legislation  by  Congress,  is  to  lose  sight  of  the 
nature  of  the  subjects  of  this  power,  and  to  assert  concerning  all  of 
them  what  is  really  applicable  but  to  a  part.  Whatever  subjects 
of  this  power  are  in  their  nature  national,  or  admit  only  of  one  uni- 
form system,  a  plan  of  regulation,  may  justly  be  said  to  be  of  such 
a  nature  as  to  require  exclusive  legislation  by  Congress.  That  this 
cannot  be  affirmed  of  laws  for  the  regulation  of  pilots  and  pilotage, 
is  plain.  The  act  of  1789  contains  a  clear  and  authoritative  declara- 
tion by  the  first  Congress,  that  the  nature  of  this  subject  is  such  that 
until  Congress  should  find  it  necessary  to  exert  its  power,  it  should 
be  left  to  the  legislation  of  the  States ;  that  it  is  local  and  not 
national ;  that  it  is  likely  to  be  the  best  provided  for,  not  by  one 
system,  or  plan  of  regulations,  but  by  as  many  as  the  legislative 
discretion  of  the  several  States  should  deem  applicable  to  the  local 
peculiarities  of  the  ports  within  their  limits. 

Viewed  in  this  light,  so  much  of  this  act  of  1789  as  declares  that 
pilots  shall  continue  to  be  regulated  "  by  such  laws  as  the  States 
may  respectively  hereafter  enact  for  that  purpose,"  instead  of  being 
held  to  be  inoperative,  as  an  attempt  to  confer  on  the  States  a  power 
to  legislate,  of  which  the  Constitution  had  deprived  them,  is  allowed 
an  appropriate  and  important  signification.  It  manifests  the  under- 
standing of  Congress,  at  the  outset  of  the  government,  that  the  nature 
of  this  subject  is  not  such  as  to  require  its  exclusive  legislation.  The 
practice  of  the  States,  and  of  the  national  government,  has  been  in 
conformity  with  this  declaration,  from  the  origin  of  the  national  gov- 
ernment to  this  time ;  and  the  nature  of  the  subject,  when  examined, 
is  such  as  to  leave  no  doubt  of  the  superior  fitness  and  propriet}-,  not 
to  say  the  absolute  necessity,  of  different  systems  of  regulation,  drawn 
from  local  knowledge  and  experience,  and  conformed  to  local  wants. 
How,  then,  can  we  say  that  by  the  mere  grant  of  power  to  regulate 
commerce  the  States  are  deprived  of  all  the  power  to  legislate  on  this 
subject,  because  from  the  nature  of  the  power  the  legislation  of  Con- 
gress must  be  exclusive.  This  would  be  to  affirm  that  the  nature  of 
the  power  is  in  this  case  something  different  from  the  nature  of  the 
subject  to  which  in  such  case  the  power  extends,  and  that  the  nature 
of  the  power  necessarily  demands  in  all  cases  exclusive  legislation 
by  Congress,  while  the  nature  of  one  of  the  subjects  of  that  power 
not  only  does  not  require  such  exclusive  legislation,  but  may  be  best 


SECT.  II.  b.  1  =  ]  COOLEY   V.    BOARD    OF   WARDENS.  281 

provided  for  by  many  different  systems  enacted  by  the  States,  in  con- 
formity with  the  circumstances  of  the  ports  within  their  limits.  In 
construing  an  instrument  designed  for  the  formation  of  a  government, 
and  in  determining  the  extent  of  one  of  its  important  grants  of  power 
to  legislate,  we  can  make  no  such  distinction  between  the  nature  of 
the  i)ower  and  the  nature  of  the  subject  on  which  that  power  was  in- 
tended practically  to  operate,  nor  consider  the  grant  more  extensive, 
by  affirming  of  the  power  what  is  not  true  of  its  suVjject  now  in 
question. 

It  is  the  opinion  of  a  majority  of  the  court  that  the  mere  grant, 
to  Congress  of  the  power  to  regulate  commerce,  did  not  deprive  the 
States  of  power  to  regulate  pilots,  and  that  although  Congress  has 
legislated  on  this  subject,  its  legislation  manifests  an  intention,  with 
a  single  exception,  not  to  regulate  this  subject,  but  to  leave  its  regu- 
lation to  the  several  States.  To  these  precise  questions,  which  are 
all  we  are  called  on  to  decide,  this  opinion  must  be  understood  to  be 
confined.  It  does  not  extend  to  the  question  what  other  subjects, 
under  the  commercial  power,  are  within  the  exclusive  control  of  Con- 
gress, or  may  be  regulated  by  the  States  in  the  absence  of  all  con- 
gressional legislation ;  nor  to  the  general  question,  how  far  any 
regulation  of  a  subject  by  Congress  may  be  deemed  to  operate  as 
an  exclusion  of  all  legislation  by  the  States  upon  the  same  sub- 
ject. We  decide  the  precise  questions  before  us,  upon  what  we 
deem  sound  principles,  applicable  to  this  particular  subject  in  the 
State  in  which  the  legislation  of  Congress  has  left  it.  We  go  no 
further. 

We  have  not  adverted  to  the  practical  consequences  of  holding  that 
the  States  possess  no  power  to  legislate  for  the  regulation  of  pilots, 
though  in  our  apprehension  these  would  be  of  the  most  serious  im- 
portance. For  more  than  sixty  years  this  subject  has  been  acted  on 
by  the  States,  and  the  systems  of  some  of  them  created  and  of  others 
essentially  modified  during  that  period.  To  hold  that  pilotage  fees 
and  penalties  demanded  and  received  during  that  time,  have  been  il- 
legally exacted,  under  color  of  void  laws,  would  work  an  amount  of 
mischief  which  a  clear  conviction  of  constitutional  duty,  if  entertained, 
must  force  us  to  occasion,  but  which  could  be  viewed  by  no  just  mind 
without  deep  regret.  Nor  would  the  mischief  be  limited  to  the  past. 
If  Congress  were  now  to  pass  a  law  adopting  the  existing  State  laws, 
if  enacted  without  authority,  and  in  violation  of  the  Constitution,  it 
would  seem  to  us  to  be  a  new  and  questionable  mode  of  legislation. 

If  the  grant  of  commercial  power  in  the  Constitution  has  deprived 
the  States  of  all  power  to  legislate  for  the  regulation  of  pilots,  if 
their  laws  on  this  subject  are  mere  usurpations  upon  the  exclusive 
power  of  the  general  government,  and  utterly  void,  it  may  be  doubted 
whether  Congress  could,  with  propriety,  recognize  them  as  laws,  and 
adopt  them,  as  its  own  acts  ;  and  how  are  the  legislatures  of  the 
States  to  proceed  in  future,  to  watch  over  and  amend  these  laws,  as 


282  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

tlie  progressive  wants  of  a  growing  commerce  will  require,  when  the 
members  of  those  legislatures  are  made  aware  that  they  cannot  legis- 
late on  this  subject  without  violating  the  oaths  they  have  taken  to 
support  the  Constitution  of  the  United  States  ? 

We  are  of  opinion  that  this  State  law  was  enacted  by  virtue  of  a 
power  residing  in  the  State  to  legislate;  that  it  is  not  in  conflict 
with  any  law  of  Congress  ;  that  it  does  not  interfere  with  any  system 
which  Congress  has  established  by  making  regulations,  or  by  inten- 
tionally leaving  individuals  to  their  own  unrestricted  action ;  that 
this  law  is  therefore  valid,  and  the  judgment  of  the  Supreme  Court 
of  Pennsylvania  in  each  case  must  be  affirmed. 

M'Lean,  J.,  and  Wayne,  J.,  dissented ;  and  Daniel,  J.,  although 
he  concurred  in  the  judgment  of  the  court,  yet  dissented  from  its 
reasoning. 


PENNSYLVANIA  v.   WHEELING  AND    BELMONT   BRIDGE 

COMPANY.  (^-r^ 

18  Howard,  421.     1855.  ^-^ 

This  case  was  one  of  original  jurisdiction  in  this  court,  upon  the 
equity  side  ;  and  may  be  said  to  be  a  continuation  of  the  suit  between 
the  same  parties  reported  in  13  How.  518. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

The  motion  in  this  case  is  founded  upon  a  bill  filed  to  carry  into 
execution  a  decree  of  the  court,  rendered  against  the  defendants  at 
the  adjourned  term  in  May,  1852,  which  decree  declared  the  bridge 
erected  by  them  across  the  Ohio  River  between  Wheeling  and  Zane's 
Island  to  be  an  obstruction  of  the  free  navigation  of  the  said  river, 
and  thereby  occasioned  a  special  damage  to  the  plaintiff,  for  which 
there  was  not  an  adequate  remedy  at  law,  and  directed  that  the 
obstruction  be  removed,  either  by  elevating  the  bridge  to  a  height 
designated,  or  by  abatement. 

Since  the  rendition  of  this  decree,  and  on  the  31st  August,  1852, 
an  act  of  Congress  has  been  passed  as  follows :  "  That  the  bridges 
across  the  Ohio  River  at  Wheeling,  in  the  State  of  Virginia,  and  at 
P>ridgeport,  in  the  State  of  Ohio,  abutting  on  Zane's  Island,  in  said 
river,  are  hereby  declared  to  be  lawful  structures  in  their  present 
positions  and  elevations,  and  shall  be  so  held  and  taken  to  be,  any 
thing  in  the  law  or  laws  of  the  United  States  to  the  contrary  not- 
withstanding." 

And  further:  "That  the  said  bridges  be  declared  to  be  and  are 
established  post-roads  for  the  passage  of  the  mails  of  the  United 
States,  and  that  the  Wheeling  and  Belmont  Bridge  Company  are 
authorized  to  have  and  maintain  their  bridges  at  their  present  site 


SECT.  II.  b.  1.]       PENNSYLVANIA  V.  WHEELING,  ETC.  BRIDGE  CO.        283 

and  elevation;  and  the  officers  and  crews  of  all  vessels  and  boats 
navigating  said  river  are  required  to  regulate  the  use  of  their  said 
vessels,  and  of  any  pipes  or  chimneys  belonging  thereto  so  as  not  to 
interfere  with  the  elevation  and  construction  of  said  bridges." 

The  defendants  rely  upon  this  act  of  Congress  as  furnishing  author- 
ity for  the  continuance  of  the  bridge  as  constructed,  and  as  supersed-j 
ing  the  effect  and  operation  of  the  decree  of  the  court  previously! 
rendered,  declaring  it  an  obstruction  to  the  navigation. 

On  the  part  of  the  plaintiff,  it  is  insisted  that  the  act  is  unconstitu- 1/ 
tional  and  void,  which  raises  the  principal  question  in  the  case.  ''( 

In  order  to  a  proper  understanding  of  this  question  it  is  material 
to  recur  to  the  ground  and  principles  upon  which  the  majority 
of  the  court  proceeded  in  rendering  the  decree  now  sought  to  be 
enforced. 

The  bridge  had  been  constructed  under  an  act  of  the  legislature  of  i 
the  State  of  Virginia;  and  it  was  admitted  that  act  conferred  full 
authority  upon  the  defendants  for  the  erection,  subject  only  to  the  | 
power  of  Congress  in  the  regulation  of  commerce.     It  was  claimed, 
])owever,  that  Congress  had  acted  upon  the  subject  and  had  regulated 
tlxe  navigation  of  the  Ohio  River,  and  had  thereby  secured  to  the 
public,  by  virtue  of  its  authority,  the  free  and  unobstructed  use  of  the 
same;  and  that  the  erection  of  the  bridge,  so  far  as  it  interfered  with  \/i 
the  enjoyment  of  this  use,  was  inconsistent  with  and  in  violation  of /(^ 
the  acts  of  Congress,  and  destructive  of  the  right  derived  under  them  ;; 
and  that,  to  the  extent  of  this  interference   with  the  free  navigation 
of  the  river,  the  act  of  the  legislature  of  Virginia  afforded  no  author- 
ity or  justification.    It  was  in  conflict  with  the  acts  of  Congress,  which 
were  the  paramount  law. 

This  being  the  view  of  the  case  taken  by  a  majority  of  the  court, 
they  found  no  difficulty  in  arriving  at  the  conclusion,  that  the  obstruc- 
tion of  the  navigation  of  the  river,  by  the  bridge,  was  a  violation  of 
the  right  secured  to  the  public  by  the  Constitution  and  laws  of  Con- 
gress, nor  in  applying  the  appropriate  remedy  in  behalf  of  the  plain- 
tiff. The  ground  and  principles  upon  which  the  court  proceeded  will 
be  found  reported  in  13  How.  518. 

Since,  however,  the  rendition  of  this  decree,  the  acts  of  Congress 
already  referred  to,  have  been  passed,  by  which  the  bridge  is  made  a 
post-road  for  the  passage  of  the  mails  of  the  United  States,  and  the 
defendants  are  authorized  to  have  and  maintain  it  at  its  present  site 
and  elevation,  and  requiring  all  persons  navigating  the  river  to  regu- 
late such  navigation  so  as  not  to  interfere  with  it. 

So  far,  therefore,  as  this  bridge  created  an  obstruction  to  the  free 
navigation  of  the  river,  in  view  of  the  previous  acts  of  Congress,  they 
are  to  be  regarded  as  modified  by  this  subsequent  legislation ;  and, 
although  it  still  may  be  an  obstruction  in  fact,  is  not  so  in  the  contem- 
plation of  law.  We  have  already  said,  and  the  principle  is  undoubted,, 
that  the  act  of  the  legislature  of  Virginia  conferred  full  authority ' 


284  THE    LEGISLATIVE    DEPARTMENT.  [CHAP,  IV. 

to  erect  aud  maintain  the  bridge,  subject  to  the  exercise  of  the 
power  of  Congress  to  regulate  the  navigation  of  the  river.  That 
body  having  in  the  exercise  of  this  power,  regulated  the  navigation 
consistent  with  its  preservation  and  continuation,  the  authority  to 
maintain  it  would  seem  to  be  complete.  That  authority  combines 
the  concurrent  powers  of  both  governments.  State  and  Federal 
which,  if  not  sufficient,  certainly  none  can  be  found  in  our  system  of 
government. 

/^  Upon  the  whole,   without  pursuing  the  examination  further,  our 
conclusion   is,   that,  so  far  as   respects  that   portion  of  the    decree 
which  directs  the  alteration  or  abatement  of  the  bridge,  it  cannot  be 
carried  into  execution  since  the  act  of  Congress  which  regulates  the 
/  navigation  of  the  Ohio  River,  consistent  with  the  existence  and  con- 
tinuance of  the  bridge ;  and  that  this  part  of  the  motion  in  behalf  of 
the  plaintiff  must  be  denied.     But  that,  so  far  as  respects  that  por- 
l  tion  of  the  decree  which  directs  the  costs  to  be  paid  by  the  defendants, 
Vthe  motion  must  be  granted. 

A  motion  has  also  been  made,  on  behalf  of  the  plaintiff,  for  attach- 
ments againt  the  president  of  the  Bridge  Company  and  others,  for 
disobedience  of  an  injunction  issued  by  Mr.  Justice  Grier,  in  vaca- 
tion, on  the  27th  June,  1854. 

It  appears  that  since  the  rendition  of  the  decree  of  this  court  and 
the  passage  of  the  act  of  Congress,  and  before  any  proceedings  taken 
to  enforce  the  execution  of  the  decree,  notwithstanding  this  act,  the 
bridge  was  broken  down,  in  a  gale  of  wind,  leaving  only  some  of  the 
cables  suspended  from  the  towers  across  the  river.  Upon  the  hup- 
pening  of  this  event,  a  bill  was  filed  by  the  plaintiff,  and  an  applica- 
tion for  the  injunction  above  mentioned  was  made,  which  was  granted, 
enjoining  the  defendants,  their  officers  and  agents,  against  a  recon- 
struction of  the  bridge,  unless  in  conformity  with  the  requirements 
of  the  previous  decree  in  the  case.  The  object  of  the  injunction  was 
to  suspend  the  work,  together  with  the  great  expenses  attending  it, 
until  the  determination  of  the  question  by  this  court  as  to  the  force 
and  effect  of  the  act  of  Congress,  in  respect  to  the  execution  of  the 
decree.  The  defendants  did  not  appear  upon  the  notice  given  of  the 
motion  for  the  injunction,  and  it  was,  consequently,  granted  without 
opposition. 

^  After  the  writ  was  served,  it  was  disobeyed,  the  defendants  pro- 
jceediug  in  the  reconstruction  of  the  bridge,  which  they  had  already 
begun  before  the  issuing  or  service  of  the  process. 

A  motion  is  now  made  for  attachments  against  the  persons  men- 
tioned for  this  disobedience  and  contempt. 

A  majority  of  the  court  are  of  the  opinion,  inasmuch  as  we  have 
/arrived  at  the  conclusion  that  the  act  o/ Congress  afforded  full  author- 
ity to  the  defendants  to  reconstruct  the  bridge,  and  the  decree  direct- 
'  ing  its  alteration  or  abatement  could  not.  therefore,  be  carried  into 


SECT.  II.  b.  1.]         ESCANABA   COMPANY   V.   CHICAGO.  285 

execution  after  the  enactment  of  this  law,  and  inasmuch  as  the  grant-! 
ing  of  an  attachment  for  the  disobedience  is  a  question  resting  in  the 
discretion  of  the  court,  that,  under  all  the  circumstances  of  the  case, ' 
the  motion  should  be  denied. 

Some  of  the  judges  also  entertain  doubts  as  to  the  regularity  of  the 
proceedings  in  pursuance  of  which  the  injunction  was  issued. 

Mr.  Justick  Wayne,  Mr.  Justice  Grier,  and  Mr.  Justice 
Curtis,  are  of  opinion  tliat,  upon  the  case  presented,  the  attachment 
for  contempt  should  issue,  and  in  which  opinion  I  concur. 

The  motion  for  the  attachment  is  denied  and  the  injunction  dis- 
solved.^ 


ESCANABA   COMPANY    v.    CHICAGO.  ^^ 

107  United  States,  678.     1882.  2 

Mr.  Justice  Field  delivered  the  opinion  of  the  court.  \^ 


^ 
3 


-    The  Escanaba  and  Lake  ^Michigan  Transportation  Company,  a  cor-      ■i*  r 
poration  created  under  the  laws  of  Michigan,  is  the  owner  of  three  >$-   ^ 
steam-vessels  engaged  in  the  carrying 'tradeTjetween  ports  and  places  ^^ 
in  different  states  on  Lake  Michigan  and  the  navigable  waters  con-  < 

necting  with  it.     The  vessels  are  enrolled  and  licensed  for  the  coast- 
ing trade,  and  are  principally  employed  in  carrying  iron  ore  from  the  | 
port  of  Escanaba,  in  Michigan,  to  the  docks  of  the  Union  Iron  and  | 
Steel  Company  on  the  south  fork  of  the  south  branch  of  the  Chicago            j 
River  in  the  city  of  Chicago.      In  their  course  up  the  river  and  its  ' 
south  branch  and  fork  to  the  docks  they  are  required  to  pass  through 
draws  of  several  bridges  constructed  over  the  stream  by  the  city  of 
Chicago;  and   it   is   of   obstructions    caused   by  the  closing  of  the  | 
draws,  under  an  ordinance  of  the  city,  for  a  designated  hour  of  the             j 
morning   and   evening   during   week-days,   and   by  a   limitation  of             | 
the  time  to  ten  minutes,  during  which  a  draw  may  be  left  open  for             \ 
the  passage  of  a  vessel,  and  by  some  of  the  piers  in  the  south  branch 
and  fork,  and  the  bridges  resting  on  them,  that  the  corporation  com- 
plains; and  to  enjoin  the  city  from  closing  the  draws  for  the  morn-             \ 
ing  and  evening  hours  designated,  and  enforcing  the  ten  minutes' 
limitation,  and  to  compel  the  removal  of  the  objectionable  piers  and 
bridges,  the  present  bill  is  filed.  i 
The  river  and  its  branches  are  entirely  within  the  State  of  Illi-             I 
iiois,  and  all  of  it,  and  nearly  all  of  both  branches  that  is  navigable, 
are  within  the  limits  of  the  city  of  Chicago.     The  river,  from  the 
junction  of  its  two  branches  to  the  lake,  is  about  three-fourths  of  a             i 
■  mile  in  length.     The  branches  flow  in  opposite  directions  and  meet             | 

1  Mr.  JfSTicE  McLean  also  dissented,  delivering  an  opinion,  and  other  justices  ' 

explained  their  views  ou  particular  questions.  , 


286 


THE   LEGISLATIVE   DEPARTMENT. 


[chap.  I\'. 


at  its  head,  nearly  at  right  angles  with  it.  Originally  the  width  of 
the  river  and  its  branches  seldom  exceeded  one  hundred  and  fifty 
feet;  of  the  branches  and  fork  it  was  often  less  than  one  hundred 
feet;  but  it  has  been  greatly  enlarged  by  the  city  for  the  conven- 
ience of  its  commerce. 

The  city  fronts  on  Lake  Michigan,  and  the  mouth  of  the  Chicago 
River  is  near  its  centre.  The  river  and  its  branches  divide  the  city 
into  three  sections;  one  lying  north  of  the  main  river  and  east  of  its 
north  branch,  which  may  be  called  its  northern  division;  one  lying 
between  the  north  and  south  branches,  which  may  be  called  its 
western  division;  and  one  lying  south  of  the  main  river  and  east  of 
the  south  branch,  which  may  be  called  its  southern  division.  Along 
the  river  and  its  branches  the  city  has  grown  up  into  magnificent 
proportions,  having  a  population  of  six  hundred  thousand  souls. 
Running  back  from  them  on  both  sides  are  avenues  and  streets  lined 
with  blocks  of  edifices,  public  and  private,  with  stores  and  ware- 
houses, and  the  immense  variety  of  buildings  suited  for  the  residence 
and  the  business  of  this  vast  population.  These  avenues  and  streets 
are  connected  by  a  great  number  of  bridges,  over  which  there  is  a 
constant  passage  of  foot-passengers  and  of  vehicles  of  all  kinds.  A 
slight  impediment  to  the  movement  causes  the  stoppage  of  a  crowd 
of  passengers  and  a  long  line  of  vehicles. 

The  main  business  of  the  city,  where  the  principal  stores,  ware- 
houses, offices,  and  public  buildings  are  situated,  is  in  the  southern 
division  of  the  city ;  and  a  large  number  of  the  persons  who  do  busi- 
ness there  reside  in  the  northern  or  the  western  division,  or  in  the 
suburbs. 

While  this  is  the  condition  of  business  in  the  city  on  the  land, 
the  river  and  its  branches  are  crowded  with  vessels  of  all  kinds, 
sailing  craft  and  steamers,  boats,  barges,  and  tugs,  moving  back- 
wards and  forwards,  and  loading  and  unloading.  Along  the  banks 
there  are  docks,  warehouses,  elevators,  and  all  the  appliances  for 
shipping  and  reshipping  goods.  To  these  vessels  the  unrestricted 
navigation  of  the  river  and  its  branches  is  of  the  utmost  importance; 
while  to  those  who  are  compelled  to  cross  the  river  and  its  branches 
the  bridges  are  a  necessity.  The  object  of  wise  legislation  is  to  give 
facilities  to  both,  with  the  least  obstruction  to  either.  This  the  city 
of  Chicago  has  endeavored  to  do. 

The  State  of  Illinois,  within  which,  as  already  mentioned,  the 
river  and  its  branches  lie,  has  vested  in  the  authorities  of  the  city 
jurisdiction  over  bridges  within  its  limits,  their  construction,  repair, 
and  use,  and  empowered  them  to  deepen,  widen.,  and  change  the 
channel  of  the  stream,  and  to  make  regulations  in  regard  to  the 
times  at  which  the  bridges  shall  be  kept  open  for  the  passage  of 
.vessels. 

Acting  upon  the  power  thus  conferred,  the  authorities  have 
endeavored  to  meet  the  wants  of  commerce  with  other  States,  and 


SECT.  II.  b.  1.]  ESCANABA    COMPANY    V.    CHICAGO.  287 

the  necessities  of  the  population  of  the  city  residing  or  doing  busi- 
ness in  different  sections.  For  this  purpose  they  have  prescribed  as 
follows :  that  "  Between  the  hours  of  six  and  seven  o'clock  in  the 
morning,  and  half-past  five  and  half-past  six  o'clock  in  the  evening, 
Sundays  excepted,  it  shall  be  unlawful  to  open  any  bridge  within 
the  city  of  Chicago;"  and  that  "During  the  hours  between  seven 
o'clock  in  the  morning  and  half-past  five  o'clock  in  the  evening,  it  — 

shall  be  unlawful  to  keep  open  any  bridge  within  the  city  of  Chicago 
for  the  purpose  of  permitting  vessels  or  other  crafts  to  pass  through 
the  same,  for  a  longer  period  at  any  one  time  than  ten  miuntes,  at 
the  expiration  of  which  period  it  shall  be  the  duty  of  the  bridge-  > 

tender  or  other  person  in  charge  of  the  bridge  to  display  the  proper  ^ 

signal,  and  immediately  close  the  same,  and  keep  it  closed  for  fully 
ten  minutes  for  such  persons,  teams,  or  vehicles  as  may  be  waiting 
to  pass  over,  if  so  much  time  shall  be  required;  when  the  said  bridge 
shall  again  be  opened  (if  necessary  for  vessels  to  pass)  for  a  like 
period,  and  so  on  alternately  (if  necessary)  during  the  hours  last 
aforesaid;  and  in  every  instance  where  any  such  bridge  shall  be  open 
for  the  passage  of  any  vessel,  vessels,  or  other  craft,  and  closed 
before  the  expiration  of  ten  minutes  from  the  time  of  opening,  said 
briclge  shall  then,  in  every  such  case,  remain  closed  for  fully  ten 
minutes,  if  necessary,  in  order  to  allow  all  persons,  teams,  and  vehi- 
cles in  waiting  to  pass  over  said  bridge." 

The  first  of  these  requirements  was  called  for  to  accommodate 
clerks,  apprentices,  and  laboring  men  seeking  to  cross  the  bridges, 
at  the  hours  named,  in  going  to  and  returning  from  their  places  of 
labor.  Any  unusual  delay  in  the  morning  would  derange  their  busi- 
ness for  the  day,  and  subject  them  to  a  corresponding  loss  of  wages. 

These  decisions  have  been  cited,  approved,  and  followed  in  many 
cases,  notably  in  that  of  Pound  v.  Turck,  decided  in  1877.  95  U.  S. 
459.  There,  a  statute  of  Wisconsin  authorized  the  erection  of  one 
or  more  dams  across  the  Chippewa  River,  which  was  a  small  naviga- 
ble stream  lying  wholly  within  the  limits  of  the  State,  but  emptying 
its  waters  into  the  Mississippi;  and  also  the  building  and  maintain- 
ing of  booms  on  the  river  with  sufficient  piers  to  stop  and  hold 
floating  logs.  The  dams  and  booms  were  to  be  so  built  as  not  to 
obstruct  the  running  of  lumber-rafts  on  the  river.  Certain  parties 
were  damaged  by  delay  in  a  lumber-raft  and  from  its  breaking, 
caused  by  the  obstructions  in  the  river;  and  their  assignees  in  bank- 
ruptcy brought  an  action  against  those  who  had  placed  the  obstruc- 
tions'there,  and  recovered.  The  case  being  brought  here,  this  court 
was  of  opinion  that  the  somewhat  confused  instructions  of  the  Cir- 
cuit Court  must  have  led  the  jury  to  understand,  that  if  the  struc- 
tures of  the  defendant  were  a  material  obstruction  to  the  general 
navigation  of  the  river,  the  statute  of  the  State  afforded  no  defence, 
although  the  structures  were  built  in  strict  conformity  with  its  pro- 


288  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

visions.  The  Circuit  Court  evidently  acted  upon  the  theory  that 
the  State  possessed  no  power  to  pass  the  statute  because  of  its  sup- 
posed conflict  with  the  commercial  power  of  Congress.  This  court 
thus  construing  the  instructions  of  that  court,  held  that  they  were 
erroneous,  that  the  case  was  within  the  decisions  of  the  Black  Bird 
Creek  Marsh  case,  and  Gilman  v.  Philadelphia,  and  that  it  was 
competent  for  the  legislature  of  the  State  to  impose  such  regulations 
and  limitations  upon  the  erection  of  obstructions  like  dams  and 
booms  in  navigable  streams  wholly  within  its  limits,  as  might  best 
accommodate  the  interests  of  all  concerned,  until  Congress  should 
interfere  and  by  appropriate  legislation  control  the  matter. 

The  doctrine  declared  in  these  several  decisions  is  in  accordance 

with  the  more  general   doctrine   now  firmly  established,  that   the 

/'commercial  power  of  Congress  is  exclusive  of  State  authority  only 

j  when  the  subjects  upon  which  it  is  exercised  are  natiohaT  in  their 

/  character,  and  admit  and  require  uniformity  of  regulation  affecting 

(   alike  all  the  States.     Upon  such  subjects  only  that  authority  can  act 

"which  can  speak  for  the  whole  country.     Its  non-action  is  therefore 

y  a  declaration  that  they  shall  remain  free  from  all  regulation.     "\Yel- 

ton  V.  State  of  Missouri,  91  U.  S.  275;  Henderson  v.  Mayor  of  New 

York,  92  Id.  259;  County  of  Mobile  v.  Kimball,  102  Id.  691. 

On  the  other  hand,  where  the  subjects  on  which  the  power  may 
be  exercised  are  local  in  their  nature  or  operation,  or  constitute 
mere  aids  to  commerce,  the  authority  of  the  State  may  be  exerted 
for  their  regulation  and  management  until  Congress  interferes  and 
supersedes  it.  As  said  in  the  case  last  cited:  "The  uniformity  of 
commercial  regulations  which  the  grant  to  Congress  was  designed  to 
secure  against  conflicting  State  provisions,  was  necessarily  intended 
only  for  cases  where  such  uniformity  is  practicable.  Where,  from  the 
nature  of  the  subject  or  the  sphere  of  its  operation,  the  case  is  local 
and  limited,  special  regulations,  adapted  to  the  immediate  localit}^, 
could  only  have  been  contemplated.  State  action  upon  such  subjects 
can  constitute  no  interference  with  the  commercial  power  of  Con- 
gress, for  when  that  acts  the  State  authority  is  superseded.  Inac- 
tion of  Congress  upon  these  subjects  of  a  local  nature  or  operation, 
unlike  its  inaction  upon  matters  affecting  all  the  States  and  requir- 
ing uniformity  of  regulation,  is  not  to  be  taken  as  a  declaration  that 
nothing  shall  be  done  in  respect  to  them,  but  is  rather  to  be  deemed 
a  declaration  that  for  the  time  being  and  until  it  sees  fit  to  act  they 
may  be  regulated  by  State  authority."     102  U.  S.  699. 

Bridges  over  navigable  streams,  which  are  entirely  within  the 
limits  of  a  State,  are  of  the  latter  class.  The  local  authority  can 
better  appreciate  their  necessity,  and  can  better  direct  the  manner 
in  which  they  shall  be  used  and  regulated  than  a  government  at  a 
distance.  It  is,  therefore,  a  matter  of  good  sense  and  practical 
wisdom  to  leave  their  control  and  management  with  the  States,  Con- 
gress having  the  power  at  all  times  to  interfere  and  supersede  their 


SECT.  II.  b.  1.]         ESCANABA   COMPANY    V.    CHICAGO.  289 

authority   whenever    they   act    arbitrarily   and   to    the    injury   of| 
commerce. 

[The  effect  of  the  ordinance  of  1787  is  considered,  and  it  is  held 
that  its  provisions  are  not  binding  on  Illinois  since  her  admission 
into  the  Union.  See  Sands  v,  Manistee  River  Imp.  Co.,  123  U.  S. 
288,  infra,  p.  842.] 

But  aside  from  these  considerations,  we  do  not  see  that  the  clause 
of  the  ordinance  upon  which  reliance  is  placed  materially  affects 
the  question  before  us.     That  clause  contains  two  provisions:  one, 
that  the  navigable  waters  leading  into  the  Mississippi  and  the  St. 
Lawrence  shall  be  common  highways  to  the  inhabitants;    and  the 
other,  that  they  shall  be  forever  free  to  them  without  any  tax,  im- 
post, or  duty  therefor.     The  navigation  of  the  Illinois  River  is  free, 
so  far  as  we  are  informed,  from  any  tax,  impost,  or  dut}',  and  its    ,    ^^^^ 
character  as  a  common  highway  is  not  affected  by  the  fact  that  it  is   j 
crossed  by  bridges.     All  highways,  whether  by  land  or  water,  are    i      \ 
subject  to  such  crossings  as  the  public  necessities  and  convenience   I        \ 
may   require,  and  their  character  as   such   is   not   changed,   if  the  I 
crossings  are  allowed  under  reasonable  conditions,  and  not  so  as  to  / 
needlessly  obstruct  the  use  of  the  highways.     In  the  sense  in  which 
the  terms  are  used  by  publicists  and  statesmen,  free  navigation  is 
consistent  with  ferries  and  bridges  across  a  river  for  the  transit  of 
persons  and  merchandise  as  the  necessities  and  convenience  of  the 
community  may  require.     In  Palmer  v.  Commissioners  of  Cuyahoga 
County  we  have  a  case  in  point.     There  application  was  made  to  the 
Circuit  Court  of   the    United   States  in  Ohio  for  an  injunction  to 
restrain  the  erection  of  a  drawbridge  over  a  river  in  that  State  on 
the  ground  that  it  would  obstruct  the  navigation  of  the  stream  and 
injure  the  property  of  the  plaintiff.     The  application  was  founded 
on  the  provision  of  the  fourth  article  of  the  ordinance  mentioned. 
The  court,  which  was  presided  over  by  Mr.  Justice  McLean,  then 
having  a  seat  on  this  bench,  refused  the  injunction,  observing  that 
"This  provision  does  not  prevent  a  State  from  improving  the  navi- 
gableness of  these  waters,  by  removing  obstructions,  or  by  dams  and 
locks,  so  increasing  the  depth  of  the  water  as  to  extend  the  line  of 
navigation.     Nor   does  the  ordinance   prohibit  the  construction  of 
any  work  on  the  river  which  the  State  may  consider  important  to 
commercial   intercourse.     A   dam    may  be   thrown   over  the  river, 
provided  a  lock  is  so  constructed  as  to  permit  boats  to  pass  with 
little  or  no  delay,  and  without  charge.     A  temporary  delay,  such  as 
passing  a  lock,  could  not  be  considered  as  an  obstruction  prohibited 
by  the  ordinance."     And  again:  "  A  drawbridge  across  a  navigable  / 
water  is  not  an  obstruction.     As  this  would  not  be  a  work  connected 
with  the  navigation  of  the  river,  no  toll,  it  is  supposed,  could  be 
charged  for  the  passage  of  boats.     But  the  obstruction  would  be  only 
momentary,  to  raise  the  draw;   and  as  such  a  work   may  be  very 
important  in  a  general  intercourse  of  a  community,  no  doubt  is  euter- 

19 


290  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tained  as  to  the  power  of  the  State  to  make  the  bridge."  3  McLean, 
226.  The  same  observations  may  be  made  of  the  subsequent  legis- 
lation of  Congress  declaring  that  navigable  rivers  within  the  Terri- 
tories of  the  United  States  shall  be  deemed  public  highways.  Sect. 
9  of  the  act  of  May  18,  1796,  c.  29 ;  sect.  6  of  the  act  of  March  26, 
180-4,  c.  35  (1  Stat."468,  §  9 ;  2  Stat.  279,  §  6). 

As  to  the  appropriations  by  Congress,  no  money  has  been  ex- 
pended on  the  improvement  of  the  Chicago  River  above  the  first 
bridge  from  the  lake,  known  as  Rush  Street  Bridge.  No  bridge, 
therefore,  interferes  "vsith  the  navigation  of  any  portion  of  the  river 
which  has  been  thus  improved.  But,  if  it  were  otherwise,  it  is  not 
perceived  how  the  improvement  of  the  navigability  of  the  stream 
can  affect  the  ordinary  means  of  crossing  it  by  ferries  and  bridges. 
/The  free  navigation  of  a  stream  does  not  require  an  abandonment  of 
i  those  means.  To  render  the  action  of  the  State  invalid  in  construct- 
ing or  authorizing  the  construction  of  bridges  over  one  of  its  naviga- 
ble streams,  the  general  government  must  directly  interfere  so  as  to 
supersede  its  authority  and  annul  what  it  has  done  in  the  matter. 

It  appears  from  the  testimony  in  the  record  that  the  money  appro- 
priated by  Congress  has  been  expended  almost  exclusively  upon 
what  is  known  as  the  outer  harbor  of  Chicago,  a  part  of  the  lake 
surrounded  by  breakwaters.  The  fact  that  formerly  a  light-house 
was  erected  where  now  Rush  Street  Bridge  stands  in  no  respect 
affects  the  question.  A  ferry  was  then  used  there;  and  before  the 
construction  of  the  bridge  the  site  as  a  light-house  was  abandoned. 
The  existing  light-house  is  below  all  the  bridges.  The  improve- 
ments on  the  river  above  the  first  bridge  do  not  represent  any  expen- 
diture of  the  government. 

From  any  view  of  this  case,  we  see  no  error  in  the  action  of  the 
court  below,  and  its  decree  must  accordingly  be  Affirmed. 


3  1^ 


HARMAN  V.   CHICAGO. 
147  United  States,  396.     1893. 

Mk.  Justice  Field,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  question  presented  for  determination  is  the  validity  of  the 
ordinance  of  the  city  of  Chicago  exacting  a  license  from  the  plain- 
tiff for  the  privilege  of  navigating  the  Chicago  River  and  its 
branches  by  tug-boats  owned  and  controlled  by  him.  The  Chicago 
River  is  a  navigable  stream,  and  its  waters  connect  with  the  harbor 
of  Chicago,  and  the  vessels  navigating  the  river  and  harbor  have 
access  by  them  to  Lake  Michigan,  and  the  States  bordering  on  the 
lake  and  connecting  lakes  and  rivers.     The  tugs  in  question,  from 


SECT.  II.  b.  1.]  HARMAN    V.    CHICAGO.  291 

the  owner  of  which  the  license  fees  were  exacted,  were  enrolled  and 
licensed  in  the  coasting  trade  of  the  United  States,  under  the  pro- 
visions of  the  Revised  Statutes  prescribing  the  conditions  of  such 
license  and  enrolment.  The  license  is  in  the  form  contained  in 
section  4321  of  the  Eevised  Statutes,  in  Title  L,  under  the  head  of 
"The  Regulations  of  Vessels  in  Domestic  Commerce."  It  declares 
that  William  Harmon,  managing  owner,  of  Chicago,  having  given 
bond  that  the  steam  tug  (naming  it  and  her  tonnage)  shall  not  be 
employed  in  any  trade  while  this  license  shall  continue  in  force, 
whereby  the  revenue  of  the  United  States  shall  be  defrauded,  and 
having  also  sworn  that  this  license  shall  not  be  used  for  any  other 
vessel,  nor  for  any  other  employment  than  herein  specified,  the 
license  is  hereby  granted  for  such  steam  tug  (naming  it)  to  be 
employed  in  carrying  on  the  coasting  and  foreign  trade,  for  one  year 
from  the  date  thereof.  The  license  is  given  by  the  collector  of 
customs  of  the  district,  under  his  hand  and  seal.  The  licenses  for 
the  several  tugs  were  in  this  form,  differing  from  each  other  only 
in  the  name  of  the  tug  licensed  and  its  tonnage.  The  licenses  con- 
fer a  right  upon  the  owner  of  the  steam  tugs  to  navigate  with  them 
the  rivers  and  the  waters  of  the  United  States  for  one  year,  which 
includes  the  river  and  harbor  of  Chicago,  Lake  Michigan,  and  con- 
necting rivers  and  lakes.  It  appears  from  the  record  that  at  the 
time  the  license  fees  in  controversy  were  exacted,  these  tugs  were 
actually  engaged  in  the  coasting  and  foreign  trade,  and  in  towing 
vessels  engaged  in  interstate  commerce,  from  Lake  Michigan  to  the 
Chicago  River  and  its  branches,  and  in  towing  vessels  similarly 
engaged  from  the  river  into  the  lake. 

In  Gibbons  v.  Ogden,  9  Wheat.  1,  213,  this  Court  held  that  ves- 
sels enrolled  and  licensed  pursuant  to  the  laws  of  the  United  States, 
as  these  tugs  were,  had  conferred  upon  them  as  full  and  complete 
authority  to  carry  on  this  trade  as  it  was  in  the  power  of  Congress 
to  confer.  The  language  of  the  Court  in  that  case  respecting  the 
first  section  of  the  act  then  under  consideration  is  equally  applicable 
to  the  provisions  of  section  4311  of  Title  L  of  the  Revised  Statutes. 
This  latter  section  declares  that  "  vessels  of  twenty  tons  and  upward, 
enrolled  in  pursuance  of  this  Title,  and  having  a  license  in  force,  ot 
vessels  of  less  than  twenty  tons,  which,  although  not  enrolled,  have 
a  license  in  force  as  required  by  this  Title,  and  no  others,  shall  be 
deemed  vessels  of  the  United  States,  entitled  to  the  privileges  of 
vessels  employed  in  the  coasting  trade  or  fisheries."  The  first  sec- 
tion of  the  act  mentioned  in  Gibbons  v.  Ogden  is  substantially  the 
same  as  the  above  section  4311,  and,  referring  to  the  privileges  con- 
ferred by  it,  the  Court  said:  "These  privileges  cannot  be  separated 
from  the  trade,  and  cannot  be  enjoyed,  unless  the  trade  may  be 
prosecuted.  The  grant  of  the  privilege  is  an  idle,  empty  form,  con- 
veying nothing,  unless  it  convey  the  right  to  which  the  privilege  is 
attached,  and  in  the  exercise  of  which  its  whole  value  consists.     To 


292  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

construe  these  words  otherwise  than  as  entitling  the  ships  or  vessels 
described,  to  carry  on  the  coasting  trade,  would  be,  we  think,  to 
disregard  the  apparent  intent  of  the  act." 

The  business  in  which  the  tugs  of  the  plaintiff  were  engaged  is 
similar  to  that  of  the  vessels  mentioned  in  Foster  v.  Davenport,  22 
How.  244.  In  that  case  a  steamboat  was  employed  as  a  lighter  and 
tow-boat  in  waters  in  the  State  of  Alabama.  It  was,  therefore,  in- 
sisted that  she  was  engaged  exclusively  in  domestic  trade  and  com- 
merce, and  consequently  the  case  could  be  distinguished  from  the 
preceding  one  of  Sinnot  v.  Davenport,  22  How.  227,  argued  with  it, 
in  which  a  law  of  Alabama,  passed  in  1854,  requiring  the  owners  of 
steamboats  navigating  the  waters  of  the  State,  before  leaving  the 
port  of  Mobile,  to  tile  a  statement  in  writing  in  the  office  of  the 
probate  judge  of  Mobile  County  setting  forth  the  name  of  the  vessel, 
the  name  of  the  owner  or  owners,  his  or  their  place  or  places  of 
residence,  and  the  interest  each  had  in  the  vessel,  was  held  to  be  in 
conflict  with  the  act  of  Congress  passed  in  February,  1793,  so  far 
as  the  State  law  was  brought  to  bear  upon  a  vessel  which  had  taken 
out  a  license,  and  was  duly  enrolled  under  the  act  of  Congress  for 
carrying  on  the  coasting  trade.  But  Mr.  Justice  Nelson,  speaking 
for  the  court,  replied  as  follows:  "It  is  quite  apparent,  from  the 
facts  admitted  in  the  case,  that  this  steamboat  was  employed  in  aid 
of  vessels  engaged  in  the  foreign  or  coastwise  trade  and  commerce 
of  the  United  States,  either  in  the  delivery  of  their  cargoes,  or  in 
towing  the  vessels  themselves  to  the  port  of  jMobile.  The  character 
of  the  navigation  and  business  in  which  it  was  employed  cannot  be 
distinguished  from  that  in  which  the  vessels  it  towed  or  unloaded 
were  engaged.  The  lightering  or  towing  was  but  the  prolongation 
of  the  voyage  of  the  vessels,  assisted  to  their  port  of  destination. 
The  case,  therefore,  is  not  distinguishable  in  principle  from  the  one 
above  referred  to." 

In  the  present  case  a  neglect  or  refusal  of  the  owner  of  the  tugs  to 
pay  the  license  required  by  the  ordinance  subjects  him  to  the  impo- 
sition of  a  fine.  His  only  alternative  is  to  pay  the  fine,  or  the  use 
of  his  tugs  in  their  regular  business  will  be  stopped.  Of  course, 
the  ordinance,  if  constitutional  and  operative,  has  the  effect  to  re- 
strain the  use  of  the  vessels  in  the  legitimate  commerce  for  which 
they  are  expressly  licensed  by  the  United  States.  It  would  be  a 
burden  and  restraint  upon  that  commerce,  which  is  authorized  by  the 
United  States,  and  over  which  Congress  has  control.  No  State 
can  interfere  with  it,  or  put  obstructions  upon  it,  without  coming 
in  conflict  with  the  supreme  authority  of  Congress.  The  require- 
ment that  every  steam  tug,  barge  or  tow-boat,  towing  vessels  or 
craft  for  hire  in  the  Chicago  River  or  its  branches  shall  have  a 
license  from  the  city  of  Chicago,  is  equivalent  to  declaring  that  such 
vessels  shall  not  enjoy  the  privileges  conferred  by  the  United 
States,  except  upon  the  conditions   imposed  by  the   city.      This 


SECT.  II.  b.  1.]  HARMAN    V.    CHICAGO.  293 

ordinance  is,  therefore,  plainly  and  palpably  in  conflict  with  tlie 
exclusive  power  of  Congress  to  regulate  commerce,  interstate  and 
foreign.  The  steam  tugs  are  not  confined  to  any  one  particular 
locality,  but  may  carry  on  the  trade  for  which  they  are  licensed  in 
any  of  the  ports  and  navigable  rivers  of  the  United  States.  They 
may  pass  from  the  river  and  harbor  of  Chicago  to  any  port  on  Lake 
Michigan,  or  otlier  lakes  and  rivers  connected  therewith.  As  justly 
observed  by  counsel:  The  citizen  of  any  of  the  States  bordering  on 
the  lakes  who  with  his  tug-boat,  also  enrolled  and  licensed  for  the 
coasting  trade,  may  wish  to  tow  his  or  his  neighbor's  vessel,  must, 
according  to  the  ordinance,  before  he  can  tow  it  into  Chicago  River, 
or  any  of  its  branches,  obtain  a  license  from  the  city  of  Chicago  to 
do  so.  The  license  of  the  United  States  would  be  insufficient  to 
give  him  free  access  to  those  waters. 

In  Moran  v.  New  Orleans,  112  U.  S.  69,  74,  a  law  of  Louisiana 
authorized  the  city   of  New  Orleans  to  levy  and  collect  a  license 
upon  all  persons  pursuing  any  trade,  profession  or  calling,  and  to 
provide  for  its  collection,  and  the  council  of  that  city  passed  an 
ordinance  to  establish  the  rate  of  licenses  for  professions,  callings, 
and  other  business  for  the  year  1880,  and,  among  others,  provided 
that  every  member  of  a  firm  or  company,  other  agency,  person  or 
corporation,  owning  and  running  tow-boats  to  and  from  the  Gulf  of 
Mexico,  should  pay  a  license  fee  of  $500.     The  owner  of  "two  steam 
propellers,  measuring   over   one   hundred   tons,  duly  enrolled   and 
licensed  at  the  port  of  New  Orleans  under  the  law  of  the  United 
States,  for  the  coasting  trade,  employed  them  as  tug-boats  in  taking 
vessels  from  the  sea  up  the  river  to  New  Orleans,  and  from  that  port 
to  the  sea.     The  city  of  New  Orleans  brought  an  action  against  him 
to  recover  the  license  under  the  ordinance,  and  obtained  a  judgment 
in  its  favor,  which,  on  appeal,  was  affirmed  by  the  Supreme  Court  of 
the  State.     Being  brought  to  this  court  the  judgment  was  reversed, 
with  directions  to  the  court  below  to  dismiss  the  action  of  the  city. 
In  deciding  the  case  this  court,  speaking  by  Mr.  Justice  Matthews, 
said  of  the  license  exacted:  "It  is  a  charge  explicitly  made  as  the 
price  of  the  privilege  of  navigating  the  Mississippi  River,  between 
New  Orleans  and  the  Gulf,  in  the  coastwise  trade,  as  the  condition 
on  which  the  State  of  Louisiana  consents  that  the  boats  of  the  plain- 
tiff in  error  may  be  employed  by  him  according  to  the  terms  of  the 
license  granted  under  the  authority  of  Congress.     The  sole  occupa- 
tion sought  to  be  subjected  to  the  tax  is  that  of  using  and  enjoying 
the  license  of  the  United  States  to  employ  these  particular  vessels 
in  the  coasting  trade;  and  the  State  thus  seeks  to  burden  with  an 
exaction,  fixed  at  its  own  pleasure,  the  very  right  to  which  tlie  plain- 
tiff in  error  is  entitled  under,  and  which  he  derives  from,  the  Con- 
stitution  and  laws  of  the  United    States.     The  Louisiana   statute 
declares  expressly  that  if  he  refuses  or  neglects  to  pay  the  license 
tax  imposed  upon  him  for  using  his  boats  in  this  way,  he  shall  not 


294  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

be  permitted  to  act  under  and  avail  himself  of  the  license  granted  by 
the  United  States,  but  may  be  enjoined  from  so  doing  by  judicial 
process.  The  conflict  between  the  two  authorities  is  direct  and 
express.  What  the  one  declares  may  be  done  without  the  tax,  the 
other  declares  shall  not  be  done  except  upon  payment  of  the  tax. 
In  such  an  opposition,  the  only  question  is  which  is  the  superior 
authority  ?  and  reduced  to  that,  it  furnishes  its  own  answer." 

In  the  light  of  these  decisions,  and  many  others  to  the  same  effect 
might  be  cited,  there  can  be  no  question  as  to  the  invalidity  of  the 
ordinance  under  consideration,  unless  its  validity  can  be  found  in 
the  alleged  expenditures  of  the  city  of  Chicago  in  deepening  and 
improving  the  river.  It  is  upon  such  alleged  ground  that  the  court 
below  sustained  the  judgment  and  upheld  the  validity  of  the  ordi- 
nance, and  it  is  upon  that  ground  that  it  is  sought  to  support  the 
judgment  in  this  court. 

The  decisions  of  this  court  in  Huse  v.  Glover,  119  U.  S.  543,  and  in 
Sands  v.  Manistee  River  Improvement  Co. ,  123  U.  S.  288,  are  par- 
ticularly referred  to  and  relied  upon.  The  attempt  is  made  to 
assimilate  the  present  case  to  those  cases  from  the  fact  that  it  is 
conceded  that  the  Chicago  River  is  from  time  to  time  deepened  for 
navigation  purposes  by  dredging  under  the  direction  and  at  the 
expense  of  the  city.  The  license  fee  provided  for  in  the  ordinance 
of  the  city  is  treated  as  in  the  nature  of  a  toll  or  compensation  for 
the  expenses  of  deepening  the  river.  But  the  plain  answer  to  fhis 
position  is  that  the  license  fee  is  not  exacted  upon  any  such  ground, 
nor  is  any  suggestion  made  that  any  special  benefit  has  arisen  or  can 
arise  to  the  tugs  in  question  by  the  alleged  deepening  of  the  river. 
The  license  is  not  exacted  as  a  toll  or  compensation  for  any  specific 
improvement  of  the  river,  of  which  the  steam  barges  or  tugs  have  the 
benefit,  but  is  exacted  for  the  keeping,  use,  or  letting  to  hire  of  any 
steam  tug,  or  barge,  or  tow-boat,  for  towing  vessels  or  craft  into  the 
Chicago  River,  its  branches,  or  slips  connected  therewith.  The 
business  of  the  steam  barge,  or  tow-boat  is  to  aid  the  movement  of 
vessels  in  the  river  and  its  branches,  and  adjacent  waters;  that  is, 
to  aid  the  commerce  in  which  such  vessels  are  engaged. 

As  said  by  this  court  in  Foster  v.  Davenport,  22  How.  244,  from 
which  we  have  quoted  above,  the  character  of  the  navigation  and 
business  in  which  the  steam  barges  or  tug-boats  are  employed  cannot 
be  distinguished  from  that  in  which  the  vessels  towed  are  engaged. 
In  Huse  v.  Glover,  119  U.  S.  543,  the  Legislature  of  Illinois  had, 
by  various  acts,  adopted  measures  for  improving  the  navigation  of 
the  Illinois  River,  including  the  construction  of  a  lock  and  dam  at 
two  places  on  the  river,  and  for  that  purpose  created  a  board  of  canal 
commissioners  and  invested  them  with  authority  to  superintend 
the  construction  of  the  locks  and  canals,  to  control  and  manage 
them  after  their  construction,  and  to  prescribe  reasonable  rates  of 
toll  for  the  passage  of  vessels  through  the  locks.     The  works  were 


SECT.  II.  b.  1.]  HARMAN    V.   CHICAGO.  295 

constructed  at  an  expense  of  several  hundred  thousand  dollars,  which 
was  borne  principally  by  the  State,  although  the  United  States  bore 
a  part  of  it,  sulticient  to  testify  to  their  consent  and  approval  of  the 
work;  and  the  commissioners  prescribed  rates  of  toll  for  the  passage 
of  vessels  through  the  locks,  the  rates  being  fixed  per  ton  according 
to  the  tonnage  measurement  of  tlie  vessels  and  the  amount  of  freight 
carried.  Certain  parties  engaged  in  the  ice  trade,  and  employing 
several  vessels  in  transporting  ice  on  the  river  and  thence  by  the 
Mississippi  and  other  navigable  streams  to  St.  Louis  and  other  South- 
ern markets,  all  of  which  vessels  were  licensed  and  registered  under 
the  act  of  Congress,  filed  a  bill  alleging  that,  prior  to  the  construc- 
tion of  the  dams,  the  complainants  were  able  to  navigate  the  river 
without  interruption,  except  such  as  was  incident  to  the  ordinary 
use  of  the  channel  in  its  natural  state;  that  said  dams  were  an  im- 
pediment to  the  free  navigation  of  the  river;  that  for  the  construc- 
tion of  the  locks  they  were  charged  and  paid  duties  upon  the  tonnage 
measurement  of  their  steamboats  and  other  vessels,  amounting  to 
about  five  thousand  dollars;  and  that  similar  charges  would  be  made 
upon  subsequent  shipments.  And  the  bill  alleged  that  the  impo- 
sition of  the  tolls  and  tonnage  duties  was  in  violation  of  article 
four  of  the  ordinance  for  the  government  of  the  territory  of  the 
United  States  northwest  of  the  Ohio  River,  passed  July  13,  1787, 
which  provides  "  that  the  navigable  waters  leading  into  the  Missis- 
sippi and  St.  Lawrence  and  the  carrying  places  between  the  same 
shall  be  a  common  highway  and  forever  free,  as  well  to  the  inhabi- 
tants of  the  territory  as  to  citizens  of  the  United  States,  and  those 
of  any  other  State  that  may  be  admitted  into  the  confederacy  with- 
out any  tax,  impost,  or  duty  therefor,"  and  of  the  article  of  the  Con- 
stitution prohibiting  the  imposition  of  a  tonnage  duty  by  any  State 
without  the  consent  of  Congress.  The  bill  therefore  prayed  that  the 
canal  commissioners  and  persons  acting  under  them  might  be  re- 
strained from  exacting  any  tonnage  duties  or  other  charges  for  the 
passage  of  their  steamboats  or  barges  and  other  vessels  used  by  them 
in  navigating  the  Illinois  River,  and  from  interfering  in  any  manner 
with  the  free  navigation  of  the  river  in  the  course  of  their  business. 
The  Circuit  Court  of  the  United  States  sustained  the  validity  of 
the  statute  and  this  court  aflBrmed  its  judgment.  In  its  opinion  this 
court  said :  — 

"The  exaction  of  tolls  for  passage  through  the  locks  is  as  compen- 
sation for  the  use  of  artificial  facilities  constructed,  not  as  an  impost 
upon  the  navigation  of  the  stream.  The  provision  of  the  clause  that 
the  navigable  streams  should  be  highways  without  any  tax,  impost, 
or  duty,  has  reference  to  their  navigation  in  their  natural  state. 
It  did  not  contemplate  that  such  navigation  might  not  be  improved 
by  artificial  means,  by  the  removal  of  obstructions,  or  by  the  mak- 
ing of  dams  for  deepening  the  waters,  or  by  turning  into  tlie  rivers 
waters   from  other  streams  to  increase  their   depth.     For   outlays 


296  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

caused  by  such  works  the  State  may  exact  reasonable  tolls.  They 
are  like  charges  for  the  use  of  wharves  and  docks  constructed  to  facil- 
itate the  landing  of  persons  and  freight,  and  the  taking  them  on 
board,  or  for  the  repair  of  vessels. 

"  The  State  is  interested  in  the  domestic  as  well  as  in  the  inter- 
state and  foreign  commerce  conducted  on  the  Illinois  River;  and  to 
increase  its  facilities,  and  thus  augment  its  growth,  it  has  full  power. 
It  is  only  when,  in  the  judgment  of  Congress,  its  action  is  deemed 
to  encroach  upon  the  navigation  of  the  river  as  a  means  of  inter- 
state and  foreign  commerce,  that  that  body  may  interfere  and  control 
or  supersede  it.  If,  in  the  opinion  of  the  State,  greater  benefit 
would  result  to  her  commerce  by  the  improvements  made  than  by 
leaving  the  river  in  its  natural  state  —  and  on  that  point  the  State 
must  necessarily  determine  for  itself  —  it  may  authorize  them,  al- 
though increased  inconvenience  and  expense  may  thereby  result  to 
the  business  of  individuals.  The  private  inconvenience  must  yield 
to  the  public  good." 

We  adhere  to  the  doctrine  thus  declared.  It  was  not  new  when 
stated  in  the  case  mentioned.  It  had  been  often  announced,  though, 
perhaps,  not  with  as  much  fulness.  That  case  differs  essentially 
from  the  one  before  us.  It  pointed  out  distinctly  the  nature  of  the 
improvement;  the  benefit  which  it  extended  to  vessels  was  readily 
perceptible,  and  no  principle  was  violated,  and  no  control  of  Con- 
gress over  commerce,  interstate  or  foreign,  was  impaired  thereby. 
Congress,  by  its  contribution  to  the  work,  had  assented  to  it.  The 
navigation  of  the  river  was  improved  and  facilitated,  and  those  thus 
benefited  were  required  to  pay  a  reasonable  toll  for  the  increased 
facilities  afforded.  Nothing  of  this  kind  is  mentioned  for  consid- 
eration in  the  ordinance  of  Chicago.  The  license  fee  is  a  tax  for 
the  use  of  navigable  waters,  not  a  charge  by  way  of  compensation 
for  any  specific  improvement.  The  grant  to  the  city  under  which 
the  ordinance  was  passed  is  a  general  one  to  all  municipalities  of 
the  State.  Waters  navigable  in  themselves  in  a  State,  and  connect- 
ing with  other  navigable  waters  so  as  to  form  a  waterway  to  other 
States  or  foreign  nations,  cannot  be  obstructed  or  impeded  so  as  to 
impair,  defeat,  or  place  any  burden  upon  a  right  to  their  navigation 
granted  by  Congress.  Such  right  the  defendants  had  from  the  fact 
that  their  steam  barges  and  tow-boats  were  enrolled  and  licensed, 
as  stated,  under  the  laws  of  the  United  States. 

The  case  of  Sands  v.  Manistee  River  Improvement  Co.,  123  U.  S. 
288,  does  not  have  any  bearing  upon  the  case  under  consideration. 
The  Manistee  River  is  wholly  within  the  State  of  Michigan,  and  its 
improvement  consisted  in  the  removal  of  obstacles  to  the  floating 
of  logs  and  lumber  down  the  stream,  principally  by  the  cutting  of 
new  channels  at  different  points  and  confining  the  waters  at  other 
points  by  embankments.  The  statute  under  which  the  improvement 
company   was   organized   contained   various  provisions  to  secure  a 


SECT.  II.  b.  1.]       UNITED  STATES  V.  RIO  GRANDE  DAM,  ETC.  CO.  297 

careful  consideration  of  the  improvements  proposed  and  of  their 
alleged  benefit  to  the  public,  and,  if  adopted,  their  proper  construc- 
tion, and  also  for  the  establishment  of  tolls  to  be  charged  for  their 
use.  When  the  case  came  before  this  court  it  was  held  that  the 
internal  commerce  of  a  State,  that  is,  the  commerce  which  is  wholly 
confined  within  its  limits,  is  as  much  under  its  control  as  foreign  or 
interstate  commerce  is  under  the  control  of  the  general  government, 
and,  to  encourage  the  growth  of  that  commerce  and  render  it  safe, 
States  might  provide  for  the,  removal  of  obstructions  from  their 
rivers  and  harbors  and  deepen  their  channels  and  improve  them  in 
other  ways,  and  levy  a  general  tax  or  toll  upon  those  who  use  the 
improvements  to  meet  their  cost,  provided  the  free  navigation  of  the 
waters,  as  permitted  by  the  laws  of  the  United  States,  was  not  im- 
paired, and  provided  any  system  for  the  improvement  of  their  navi- 
gation instituted  by  the  general  government  was  not  defeated.  No 
legislation  of  Congress  was,  by  the  statute  of  Michigan,  in  that  case 
interfered  with,  nor  any  right  conferred,  under  the  legislation  of 
Congress,  in  the  navigation  of  the  river  by  licensed  or  enrolled 
vessels,  impaired,  defeated,  or  burdened  in  any  respect.  It  was 
the  improvement  of  a  river  wholly  within  the  State,  and,  therefore, 
until  Congress  took  action  on  the  subject,  wholly  under  the  control 
of  the  authorities  of  the  State.  County  of  Mobile  v.  Kimball,  102 
U.  S.  691,  699;  Escanaba  Co.  v.  Chicago,  107  U.  S.  678. 

It  follows  from  the  views  expressed  that  the  judgment  of  the 
Supreme  Court  of  Illinois  should  have  been  for  the  plaintiff  below, 
the  plaintiff  in  error  here.     Its  judgment  will,  therefore,  be 

Reversed  and  the  cause  remanded  to  that  court  for  further  proceed- 
ings not  inconsistent  with  this  opinion. 


UNITED    STATES  v.    RIO    GRANDE    DAM    AND    IRRIGA- 
TION COMPANY. 

174  United  States,  690.     1899. 

[This  suit  was  begun  in  the  territorial  court  of  New  Mexico  to 
restrain  defendant,  a  corporation  organized  under  the  laws  of  the 
territory,  and  others  claiming  rights  under  it,  from  carrying  out 
their  purpose  to  erect  in  New  Mexico  a  dam  across  the  Rio  Grande 
River  and  divert  the  waters  of  that  river  to  form  an  artificial  lake 
and  appropriate  them  to  the  purposes  of  irrigation,  thereby  divert- 
ing them  and  obstructing  the  navigability  of  said  river  below  said 
dam  throughout  its  entire  course.  On  an  issue  raised  as  to  the  navi- 
gability of  the  river  the  territorial  court  held  that  it  would  take 


298  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

judicial  notice  that  it  was  not  navigable  within  the  territory  of  New 
Mexico,  and  therefore  dismissed  the  bill.  This  decree  was  affirmed 
in  the  supreme  court  of  the  territory  and  the  United  States  ap- 
pealed to  this  court.] 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

We  may,  therefore,  properly  limit  our  inquiry  to  the  effect  of  the 
proposed  dam  and  appropriation  of  waters  upon  the  navigability  of 
the  Rio  Grande,  and,  in  case  such  proposed  action  tends  to  destroy 
such  navigability,  the  extent  of  the  right  of  the  government  to  in- 
terfere. The  intended  construction  of  the  dam  and  impounding  of 
the  water  are  charged  in  the  bill  and  admitted  in  the  answer.  The 
bill  further  charges  that  the  purpose  is  to  obtain  control  of  the 
entire  flow  of  the  river,  and  divert  and  use  it  for  irrigation  and  sup- 
plying waters  for  municipal  and  manufacturing  uses;  that,  by 
reason  of  the  porous  soil,  the  dry  atmosphere,  and  consequent  rapid 
evaporation,  but  little  water  thus  taken  from  the  river  and  distrib- 
uted over  the  surface  of  the  earth  will  ever  be  returned  to  the  river; 
and  that  this  appropriation  of  the  waters  will  so  deplete  and  prevent 
the  flow  of  water  through  the  channel  of  the  river  below  the  dam  as 
to  seriously  obstruct  the  navigable  capacity  of  the  river  throughout 
its  entire  course,  even  to  its  mouth.  The  answer,  while  denying  an 
intent  to  appropriate  all  the  waters  of  the  Rio  Grande,  states  that 
the  entire  flow,  during  the  irrigation  season,  at  the  point  where 
defendants  propose  to  construct  reservoirs,  had  long  since  been 
diverted,  and  was  owned  and  beneficially  used  by  parties  other 
than  defendants,  that  they  did  not  seek  to  disturb  such  appropria- 
tion, but  that  their  sole  intention  was  to  appropriate  only  such 
waters  as  had  not  already  been  legally  appropriated,  and  that  the 
beneficial  rights  to  be  acquired  in  the  stream  by  virtue  of  the 
structures  would  be  very  largely  only  so  acquired  from  the  excess, 
storm,  and  flood  waters  now  unappropriated,  useless,  and  going 
to  waste.  In  other  words,  the  bill  charges  that  the  defendants, 
at  the  places  where  they  proposed  to  construct  their  dam,  in- 
tend thereby  to  appropriate  all  the  waters  of  the  Rio  Grande, 
and  defendants  qualify  that  charge  only  so  far  as  they  say  that 
most  of  the  flow  of  the  river  is  already  appropriated,  and  they  only 
propose  to  take  the  balance.  The  bill  charges  that  such  appropri- 
ation of  the  entire  flow  will  seriously  obstruct  the  navigability  of 
the  river  from  the  place  of  the  dam  to  the  mouth  of  the  stream. 
The  defendants  deny  this,  but  as  the  court  found  that  there  was  no 
equity  in  the  bill,  and  dismissed  the  suit  on  that  ground,  we  must, 
for  the  purposes  of  this  inquiry,  assume  that  it  is  true,  that  defend- 
ants are  intending  to  appropriate  the  entire  unappropriated  flow  of 
the  Rio  Grande  at  the  place  where  they  propose  to  construct  their 
dam,  and  that  such  appropriation  will  seriously  affect  the  naviga- 
bility of  the  river  where  it  is  now  navigable.     The  right  to  do  this 


SECT.  II.  b.  1.]       UNITED  STATES  V.  RIO  GRANDE  DAM,  ETC.  CO.  299 

is  claimed  by  defendants  and  denied  by  the  government,  and  that 
generally  speaking  is  the  question  presented  for  our  consideration. 

The  unquestioned  rule  of  the  common  law  was  that  every  riparian 
owner  was  entitled  to  the  continued  natural  flow  of  the  stream.  It 
is  enough,  without  other  citations  or  quotations,  to  quote  the  lan- 
guage of  Chancellor  Kent  (3  Kent,  Comm.  §  439) : 

"Every  proprietor  of  lands  on  the  banks  of  a  river  has  naturall}^ 
an  equal  right  to  the  use  of  the  water  which  flows  in  the  stream 
adjacent  to  his  lands,  as  it  was  wont  to  run  (currere  solehat)  -without 
diminution  or  alteration.  No  proprietor  has  a  right  to  use  the 
water,  to  the  prejudice  of  other  proprietors,  above  or  below  him, 
unless  he  has  a  prior  right  to  divert  it,  or  a  title  to  some  exclusive 
enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple 
usufruct  while  it  passes  along.  '  Aqua  currit  et  debet  currere  ut 
currere  solebat,^  is  the  language  of  the  law.  Though  he  may  use 
the  water  while  it  runs  over  his  land  as  an  incident  to  the  land,  he 
cannot  unreasonably  detain  it,  or  give  it  another  direction,  and  he 
must  return  it  to  its  ordinary  channel  when  it  leaves  his  estate." 

While  this  is  undoubted,  and  the  rule  obtains  in  those  States  in 
the  Union  which  have  simply  adopted  the  common  law,  it  is  also 
true  that  as  to  every  stream  within  its  dominion  a  State  may  change 
this  common-law  rule,  and  permit  the  appropriation  of  the  flowing 
waters  for  such  purposes  as  it  deems  wise.  Whether  this  power  to 
change  the  common-law  rule,  and  permit  an}'  specific  and  separate 
appropriation  of  the  waters  of  a  stream,  belongs  also  to  the  legisla- 
ture of  a  territory,  we  do  not  deem  it  necessary,  for  the  purposes  of 
this  case,  to  inquire.     We  concede  arguendo  that  it  does. 

Although  this  power  of  changing  the  common-law  rule  as  to 
streams  within  its  dominion  undoubtedly  belongs  in  each  State,  yet 
two  limitations  must  be  recognized:  First,  that,  in  the  absence  of 
specific  authority  from  Congress,  a  State  cannot,  by  its  legislation, 
destroy  the  right  of  the  United  States,  as  the  owner  of  lands  border- 
ing on  a  stream,  to  the  continued  flow  of  its  waters,  so  far,  at  least, 
as  may  be  necessary  for  the  beneficial  uses  of  the  government  prop- 
erty ;  second,  that  it  is  limited  by  the  superior  power  of  the  general 
government  to  secure  the  uninterrupted  navigability  of  all  navigable 
streams  within  the  limits  of  the  United  States.  In  other  words,  the 
jurisdiction  of  the  general  government  over  interstate  commerce 
and  its  natural  higlnvays  vests  in  that  government  the  right  to  take 
all  needed  measures  to  preserve  the  navigability  of  the  navigable 
water  courses  of  the  country,  even  against  any  State  action.  It  is 
true  there  have  been  frequent  decisions  recognizing  the  power  of  the 
State,  in  the  absence  of  congressional  legislation,  to  assume  control 
of  even  navigable  waters  within  its  limits,  to  the  extent  of  creating 
dams,  booms,  bridges,  and  other  matters  which  operate  as  obstruc- 
tions to  navigability.  The  power  of  the  State  to  thus  legislate  for 
the  interests  of  its  own  citizens  is  conceded,  and  until  in  some  way 


300  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

Congress  asserts  its  superior  power,  and  the  necessity  of  preserving 
the  general  interests  of  the  people  of  all  the  States,  it  is  assumed 
that  State  action,  although  involving  temporarily  an  obstruction  to 
the  free  navigability  of  a  stream,  is  not  subject  to  challenge.  A 
long  list  of  cases  to  this  effect  can  be  found  in  the  reports  of  this 
court.  See,  among  others,  the  following:  Willson  v.  Blackbird 
Creek  Co.,  2  Pet.  245;  Gilman  v.  Philadelphia,  3  Wall.  713;  Es- 
canaba  Co.  v.  Chicago,  107  U.  S.  678  ;  Wellamette  Iron  Bridge  Co. 
V.  Hatch,  125  U.  S.  1. 

All  this  proceeds  upon  the  thought  that  the  non-action  of  Con- 
gress carries  with  it  an  implied  assent  to  the  action  taken  by  the 
State. 

Notwithstanding  the  unquestioned  rule  of  the  common  law  in 
reference  to  the  right  of  a  lower  riparian  proprietor  to  insist  upon 
the  continuous  flow  of  the  stream  as  it  was,  and  although  there  has 
been  in  all  the  Western  States  an  adoption  or  recognition  of  the 
common  law,  it  was  early  developed  in  their  history  that  the 
mining  industry  in  certain  States,  the  reclamation  of  arid  lands  in 
others,  compelled  a  departure  from  the  common-law  rule,  and  justi- 
fied an  appropriation  of  flowing  waters  both  for  mining  purposes 
and  for  the  reclamation  of  arid  lands,  and  there  has  come  to  be  recog- 
nized in  those  States,  by  custom  and  by  State  legislation,  a  differ- 
ent rule,  —  a  rule  which  permits,  under  certain  circumstances,  the 
appropriation  of  the  waters  of  a  flowing  stream  for  other  than  domes- 
tic purposes.  So  far  as  those  rules  have  only  a  local  significance, 
and  affect  only  questions  between  citizens  of  the  State,  nothing  is 
presented  which  calls  for  any  consideration  by  the  Federal  courts. 

[Acts  of  Congress  are  quoted  from  as  follows:  Eev.  Stat.  §  2339; 
19  Stat.  377,  §  1;  26  Stat.  1101,  §  18.] 

Obviously,  by  these  acts,  so  far  as  they  extended,  Congress  recog- 
nized and  assented  to  the  appropriation  of  water  in  contravention 
of  the  common-law  rule  as  to  continuous  flow.  To  infer  therefrom 
that  Congress  intended  to  release  its  control  over  the  navigable 
streams  of  the  country,  and  to  grant  in  aid  of  mining  industries  and 
the  reclamation  of  arid  lands  the  right  to  appropriate  the  waters  on 
the  sources  of  navigable  streams  to  such  an  extent  as  to  destroy  their 
navigability,  is  to  carry  those  statutes  beyond  what  their  fair  import 
permits.  This  legislation  must  be  interpreted  in  the  light  of  exist- 
ing facts, — that  all  through  this  mining  region  in  the  West  were 
streams,  not  navigable,  whose  waters  could  safely  be  appropriated 
for  mining  and  agricultural  industries,  without  serious  interference 
with  the  navigability  of  the  rivers  into  which  those  waters  flow. 
And  in  reference  to  all  these  cases  of  purely  local  interest  the 
obvious  purpose  of  Congress  was  to  give  its  assent,  so  far  as  the 
public  lands  were  concerned,  to  any  system,  although  in  contraven- 
tion to  the  common-law  rule,  which  permitted  the  appropriation  of 
those  waters  for  legitimate  industries.     To  hold  that  Congress,  by 


SECT.  II.  b.  1.]      UNITED  STATES  V.  RIO  GRANDE  DAM,  ETC.  CO.  301 

these  acts,  meant  to  confer  upon  any  State  the  right  to  appropriate 
all  the  waters  of  the  tributary  streams  which  unite  into  a  navigable 
water  course,  and  so  destroy  the  navigability  of  that  water  course  iu 
derogation  of  the  interests  of  all  the  people  of  the  United  States,  is 
a  construction  which  cannot  be  tolerated.  It  ignores  the  spirit  of 
the  legislation,  and  carries  the  statute  to  the  verge  of  the  letter,  and 
far  beyond  what,  under  the  circumstances  of  the  case,  must  be  held 
to  have  been  the  intent  of  Congress. 

But  whatever  may  be  said  as  to  the  true  intent  and  scope  of  these 
various  statutes,  we  have  before  us  the  legislation  of  1890. 

As  this  is  a  later  declaration  of  Congress,  so  far  as  it  modifies 
any  privileges  or  rights  conferred  by  prior  statutes,  it  must  be  held 
controlling,  at  least  as  to  any  rights  attempted  to  be  created  since 
its  passage;  and  all  the  proceedings  of  the  appellees  in  this  case 
were  subsequent  to  this  act.  This  act  declares  that  "the  creation 
of  any  obstruction,  not  affirmatively  authorized  by  law  to  the  navi- 
gable capacity  of  any  waters  in  respect  to  which  the  United  States 
has  jurisdiction,  is  hereby  prohibited."  "Whatever  may  be  said  in 
reference  to  obstructions  existing  at  the  time  of  the  passage  of  the 
act,  under  the  authority  of  State  statutes,  it  is  obvious  that  Congress 
meant  that  thereafter  no  State  should  interfere  with  the  navigability 
of  a  stream  without  the  condition  of  national  assent.  It  did  not,  of 
course,  disturb  any  of  the  provisions  of  prior  statutes  in  respect  to 
the  mere  appropriation  of  water  of  non-navigable  streams  in  disre- 
gard of  the  old  common-law  rule  of  continuous  flow,  and  its  only 
purpose,  as  is  obvious,  was  to  affirm  that  as  to  navigable  waters 
nothing  should  be  done  to  obstruct  their  navigability  without  the 
assent  of  the  national  government.  It  was  an  exercise  by  Congress 
of  the  power,  oftentimes  declared  by  this  court  to  belong  to  it,  of 
national  control  over  navigable  streams ;  and  various  sections  in  this 
statute,  as  well  as  in  the  act  of  July  13,  1892,  c.  158  (27  Stat.  88,  110), 
provide  for  the  mode  of  asserting  that  control.  It  is  urged  that  the 
true  construction  of  this  act  limits  its  applicability  to  obstructions 
in  the  navigable  portion  of  a  navigable  stream,  and  that  as  it 
appears  that,  although  the  Rio  Grande  may  be  navigable  for  a  cer- 
tain distance  above  its  mouth,  it  is  not  navigable  in  the  territory  of 
New  Mexico,  this  statute  has  no  applicability.  The  language  is 
general,  and  must  be  given  full  scope.  It  is  not  a  prohibition  of 
any  obstruction  to  the  navigation  but  any  obstruction  to  the  navi- 
gable capacity,  and  anything,*  wherever  done  or  however  done, 
within  the  limits  of  the  jurisdiction  of  the  United  States,  which 
tends  to  destroy  the  navigable  capacity  of  one  of  the  navigable  waters 
of  the  United  States,  is  within  the  terms  of  the  prohibition.  Evi- 
dently Congress,  perceiving  that  the  time  had  come  when  the  grow- 
ing interests  of  commerce  required  that  the  navigable  waters  of  the 
United  States  should  be  subjected  to  the  direct  control  of  the  national 


302  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

government,  and  that  nothing  should  be  done  by  any  State  tending 
to  destroy  that  navigability  without  the  explicit  assent  of  the 
national  government,  enacted  the  statute  in  question;  and  it  would 
be  to  improperly  ignore  the  scope  of  this  language  to  limit  it  to  the 
acts  done  within  the  very  limits  of  navigation  of  a  navigable  stream. 

The  creation  of  any  such  obstruction  may  be  enjoined,  according 
to  the  last  provision  of  the  section,  by  proper  proceedings  in  equity, 
under  the  direction  of  the  attorney  general  of  the  United  States, 
and  it  was  in  pursuance  of  this  clause  that  these  proceedings  were 
commenced.  Of  course,  when  such  proceedings  are  instituted,  it 
becomes  a  question  of  fact  whether  the  act  sought  to  be  enjoined  is 
one  which  fairly  and  directly  tends  to  obstruct  (that  is,  interfere 
with  or  diminish)  the  navigable  capacity  of  a  stream.  It  does  not 
follow  that  the  courts  would  be  justified  in  sustaining  any  proceeding 
by  the  attorney  general  to  restrain  any  appropriation  of  the  upper 
waters  of  a  navigable  stream.  The  question  always  is  one  of  fact, 
whether  such  appropriation  substantially  interferes  with  the  navi- 
gable capacity  within  the  limits  where  navigation  is  a  recognized 
fact.  In  the  course  of  the  argument,  this  suggestion  was  made, 
and  it  seems  to  us  not  unworthy  of  note,  as  illustrating  this  thought. 
The  Hudson  river  runs  within  the  limits  of  the  State  of  New  York, 
It  is  a  navigable  stream,  and  a  part  of  the  navigable  waters  of  the 
United  States,  so  far  at  least  as  from  Albany  southward.  One  of 
the  streams  which  flows  into  it,  and  contributes  to  the  volume  of 
its  waters,  is  the  Croton  river,  a  non-navigable  stream.  Its  waters 
are  taken  by  the  State  of  Xew  York  for  domestic  uses  in  the  city 
of  New  York.  Unquestionably,  the  State  of  New  Y"ork  has  a 
right  to  appropriate  its  waters,  and  the  United  States  may  not 
question  such  appropriation,  unless  thereby  the  navigability  of  the 
Hudson  be  disturbed.  On  the  other  hand,  if  the  State  of  New 
York  should,  even  at  a  place  above  the  limits  of  navigability,  by 
appropriation  for  any  domestic  purposes,  diminish  the  volume  of 
waters  which,  flowing  into  the  Hudson,  make  it  a  navigable  stream, 
to  such  an  extent  as  to  destroy  its  navigability,  undoubtedly  the 
jurisdiction  of  the  national  government  would  arise,  and  its  power 
to  restrain  such  appropriation  be  unquestioned;  and,  within  the  pur- 
view of  this  section,  it  would  become  the  right  of  the  attorney  gen- 
eral to  institute  proceedings  to  restrain  such  appropriation. 

[Case  remanded  for  an  inquiry  into  the  question  whether  the 
threatened  act  of  defendant  will  substantially  diminish  the  naviga- 
bility of  the  stream.^] 

1  In  the  case  of  Kaxsas  i\  Colorado,  206  U.  S.  46,  27  Sup.  Ct.  Rep.  655  (1907), 
it  was  held  that  the  government  of  the  United  States  has  no  power  to  regulate 
the  use  of  the  water  of  a  stream  for  irrigation  purposes  although  it  flows  through  two 
states,  and  that  as  between  states  the  question  is  as  to  whether  the  substantial  interests 
of  the  one  are  being  materially  injured  by  the  acts  of  the  other  in  authorizing  the  ap- 
propriation of  the  water  of  the  stream  for  irrigation  purposes. 


SECT.  II.  b.  2.]  BROWN    V.    MARYLAND.  303 

2.   Taxation  of  Commerce.  ' 

BROWN  V.  MARYLAND. 
12  Wheaton,  419;  7  Curtis,  262.     1827. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  Court  of 
Appeals  of  Maryland,  affirming  a  judgment  of  the  City  Court  of  Bal- 
timore, on  an  indictment  found  in  that  court  against  the  plaintiffs  in 
error,  for  violating  an  act  of  the  Legislature  of  Maryland.  The  in- 
dictment was  founded  on  the  2d  section  of  that  act,  which  is  in  these 
words:  "And  be  it  enacted  that  all  importers  of  foreign  articles  or 
commodities,  of  dry  goods,  wares,  or  merchandise,  by  bale  or  package, 
or  of  wine,  rum,  brandy,  whiskey,  and  other  distilled  spirituous 
liquors,  etc.,  and  other  persons  selling  the  same  by  wholesale,  bale  or  \ 
package,  hogshead,  barrel,  or  tierce,  shall,  before  they  are  authorized 
to^ll,  take  out  a  license,  as  by  the  original  act  is  directed,  for  which 
they'shall  pay  fifty  dollars ;  and  in  case  of  neglect  or  refusal  to  take 
out  such  license,  shall  be  subject  to  the  same  penalties  and  forfeitures 
as  are  prescribed  by  the  original  act  to  which  this  is  a  supplement." 
The  indictment  charges  the  plaintiffs  in  error  with  having  imported i 
and  sold  one  package  of  foreign  dry  goods  without  having  license  toj) 
do  so.  A  judgment  was  rendered  against  them,  on  demurrer,  for  the 
penalty  which  the  act  prescribes  for  the  offence ;  and  that  judgment 
is  now  before  this  court. 

The  cause  depends  entirely  on  the  question  whether  the  legislature  ,     ^^^ 
of  a  State  can  constitutionally  require  the  importer  of  foreign  articles  j   j^' 
to  take  out  a  license  from  the  State,  before  he  shall  be  permitted  to/  , 
sell  a  bale  or  package  so  imported. 

It  has  been  truly  said  that  the  presumption  is  in  favor  of  every 
legislative  act,  and  that  the  whole  burden  of  proof  lies  on  him  who 
denies  its  constitutionality.  The  plaintiffs  in  error  take  the  burden 
upon  themselves,  and  insist  that  the  act  under  consideration  is  repug- 
nant to  two  provisions  in  the  constitution  of  the  United  States. 

1.  To  that  which  declares  that  '-'no  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  executing  its  inspection 
laws." 

2.  To  that  which  declares  that  Congress  shall  have  power  "  to 
regulate  commerce  with  foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  tribes." 

1.  The  first  inquiry  is  into  the  extent  of  the  prohibition  upon 
States  "  to  lay  any  imposts  or  duties  on  imports  or  exports."     The 


304  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

counsel  for  the  State  of  Maryland  would  confine  this  prohibition  to 
laws  imposing  duties  on  the  act  of  importation  or  exportation.  The 
counsel  for  the  plaintiffs  in  error  give  them  a  much  wider  scope. 

In  performing  the  delicate  and  important  duty  of  construing  clauses 
in  the  Constitution  of  our  country,  which  involve  conflicting  powers 
of  the  government  of  the  Union,  and  of  the  respective  States,  it  is 
proper  to  take  a  view  of  the  literal  meaning  of  the  words  to  be  ex- 
pounded, of  their  connection  with  other  words,  and  of  the  general 
objects  to  be  accomplished  by  the  prohibitory  clause,  or  by  the  grant 
of  power. 

What,  then,  is  the  meaning  of  the  words,  "  imposts  or  duties  on 
imports  or  exports  ?  " 

An  impost,  or  duty  on  imports,  is  a  custom  or  a  tax  levied  on  ar- 
ticles brought  into  a  country,  and  is  most  usually  secured  before  the 
importer  is  allowed  to  exercise  his  rights  of  ownership  over  them, 
because  evasions  of  the  law  can  be  prevented  more  certainly  by  exe- 
cuting it  while  the  articles  are  in  its  custody.  It  would  not,  however, 
be  less  an  impost  or  duty  on  the  articles,  if  it  were  to  be  levied  on 
them  after  they  were  landed.  The  policy  and  consequent  practice  of 
levying  or  securing  the  duty  before  or  on  entering  the  port,  does  not 
limit  the  power  to  that  state  of  things,  nor,  consequently,  the  pro- 
hibition, unless  the  true  meaning  of  the  clause  so  confines  it.  What, 
then,  are  "  imports "  ?  The  lexicons  inform  us  they  are  "  things 
imported."  If  we  appeal  to  usage  for  the  meaning  of  the  word,  we 
shall  receive  the  same  answer.  They  are  the  articles  themselves 
which  are  brought  into  the  country.  "  A  duty  on  imports,"  theii,  is 
fnot  merely  a  duty  on  the  act  of  importation,  but  is  a  duty  on  the 
vthing  imported.  It  is  not,  taken  in  its  literal  sense,  confined  to  a 
/duty  levied  while  the  article  is  entering  the  country,  but  extends  to 
l^  duty  levied  after  it  has  entered  the  country.  The  succeeding  words 
of  the  sentence  which  limit  the  prohibition,  show  the  extent  in  which 
it  was  understood.  The  limitation  is  "  except  what  may  be  absolutely 
-\necessary  for  executing  its  inspection  laws."  Now,  the  inspection 
laws,  so  far  as  they  act  upon  articles  for  exportation,  are  generally 
executed  on  land,  before  the  article  is  put  on  board  the  vessel ;  so  far 
as  they  act  upon  importations,  they  are  generally  executed  upon  ar- 
ticles which  are  landed.  The  tax  or  duty  of  inspection,  then,  is  a 
tax  which  is  frequently,  if  not  always  paid  for  service  performed  on 
land,  while  the  article  is  in  the  bosom  of  the  country.  Yet  this  tax 
is  an  exception  to  the  prohibition  on  the  States  to  lay  duties  on  im- 
ports or  exports.  The  exception  was  made  because  the  tax  would 
otherwise  have  been  within  the  prohibition. 

If  it  be  a  rule  of  interpretation  to  which  all  assent,  that  the  excep- 
tion of  a  particular  thing  from  general  words,  proves  that,  in  the 
opinion  of  the  lawgiver,  the  thing  excepted  would  be  within  the 
general  clause  had  the  exception  not  been  made,  we  know  no  reason 
why  this  general  rule  should  not  be  as  applicable  to  the  Constitution 


SECT.  II.  b.  2.]  BROWN   V.   MARYLAND.  305 

as  to  Other  instruments.  If  it  be  applicable,  then  this  exception  in 
favor  of  duties  for  the  support  of  inspection  laws,  goes  far  in  proving 
that  the  framers  of  the  Constitution  classed  taxes  of  a  similar  char- 
acter with  those  imposed  for  the  purposes  of  inspection,  with  duties 
on  imports  and  exports,  and  supposed  them  to  be  prohibited. 

If  we  quit  this  narrow  view  of  the  object,  and,  passing  from  the 
literal  interpretation  of  the  words,  look  to  tlie  objects  of  the  pro- 
hibition, we  find  no  reason  for  withdrawing  the  act  under  considera- 
tion from  its  operation. 

From  the  vast  inequality  between  the  different  States  of  the  con- 
federacy, as   to   commercial  advantages,   few   subjects  were   viewed 
with  deeper  interest,  or  excited  more  irritation,  than  the  manner  in 
which  the  several  States  exercised,  or  seemed  disposed  to  exercise, 
the  power  of  laying  duties  on  imports.     From  motives  which  were 
deemed  sufhcient  by  the  statesmen  of  that  day,  the  general  power 
of  taxation,   indispensably   necessary  as   it  was,  and  jealous  as  the 
States  were  of  any  encroachment  on  it,  was  so  far  abridged  as  to  for- 
bid them  to  touch  imports  or  exports,  with  the  single  exception  which 
has  been  noticed.     Why  are  they  restrained  from  imposing   these 
duties  ?     Plainly,  because,  in  the  general  opinion,  the  interest  of  all 
would  be  best  promoted  by  placing  that  whole  subject  under  the  con- 
trol of  Congress.     Whether  the  prohibition  to  "  lay  imposts,  or  duties 
on  imports  or  exports,"  proceeded  from   an  apprehension  that  the 
power  might  be  so  exercised  as  to   disturb  that  equality  among  the 
States  which  was  generally  advantageous,  or  that  harmony  between 
them  which  it  was  desirable  to  preserve,  or  to  maintain  unimpaired 
our  commercial  connections  with  foreign  nations,  or  to  confer  this 
source  of  revenue  on  the  government  of  the  Union,  or  whatever  other 
motive    might  have   induced  the    prohibition,    it   is    plain  that  the 
object  would  be  as  completely  defeated  by  a  power  to  tax  the  article 
in  the  hands  of  the  importer  the  instant  it  was  landed,  as  by  a  power 
to  tax  it  while  entering  the  port.     There  is  no  difference,  in  effect,, 
between  a  power  to  prohibit  the  sale  of  an  article,  and  a  power  to  pro-) 
hibit  its  introduction  into  the  country.     The  one  would  be  a  necessary! 
consequence  of   the  other.     No   goods  \vould   be    imported  if  none^| 
could  be  sold.     No  object  of  any  description  can  be  acconqjlished  by ' 
laying  a  duty  on  importation,  which  may  not  be  accomplished  with 
equal  certainty  by  laying  a  duty  on  the  thing  imported  in  the  hands  ^ 
of  the  importer.     It  is  obvious  that  the  same  power  which  imposes  a} 
light  duty,  can  impose  a  very  heavy  one,  one  which  amounts  to  a  pro-/ 
hibition.     Questions  of  power  do  not  depend  on  the  degree  to  which 
it  may  be  exercised.     If  it  may  be  exercised  at  all,  it  must  be  exer- 
cised at  the  will  of  those  in  whose  hands  it  is  placed.     If  the  taxN 
may  be  levied  in  this  form  by  a  State,  it  may  be  levied  to  an  extent  | 
which  will  defeat  the  revenue  by  imposts,  so  far  as  it  is  drawn  fromy 
importations  into  the  particular  State.     We  are  told  that  such  wild 
and  irrational  abuse  of  power  is  not  to  be  apprehended,  and  is  not  to 

20 


306  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

be  taken  into  view,  when  discussing  its  existence.  All  power  may  be 
abused ;  and  if  the  fear  of  its  abuse  is  to  constitute  an  argument 
against  its  existence,  it  might  be  urged  against  the  existence  of  that 
which  is  universally  acknowledged,  and  which  is  indispensable  to  the 
general  safety.  The  States  will  never  be  so  mad  as  to  destroy  their 
own  commerce,  or  even  to  lessen  it. 

We  do  not  dissent  from  these  general  propositions.  We  do  not 
suppose  any  State  would  act  so  unwisely.  But  we  do  not  place  the 
question  on  that  ground. 

These  arguments  apply  with  precisely  the  same  force  against  the 
whole  prohibition.  It  might  with  the  same  reason  be  said,  that  no 
State  would  be  so  blind  to  its  own  interests  as  to  lay  duties  on  im- 
portation which  would  either  prohibit  or  diminish  its  trade.  Yet  the 
framers  of  our  Constitution  have  thought  this  a  power  which  no  State 
ought  to  exercise.  Conceding,  to  the  full  extent  which  is  required, 
that  every  State  would,  in  its  legislation  on  this  subject,  provide 
judiciously  for  its  own  interests,  it  cannot  be  conceded  that  each 
would  respect  the  interests  of  others.  A  duty  on  imports  is  a  tax  on 
the  article,  which  is  paid  by  the  consumer.  The  great  importing 
States  would  thus  levy  a  tax  on  the  non-importing  States,  which 
v/ould  not  be  less  a  tax  because  their  interest  would  afford  ample 
security  against  its  ever  being  so  heavy  as  to  expel  commerce  from 
their  ports.  This  would  necessarily  produce  countervailing  measures 
on  the  part  of  those  States  whose  situation  was  less  favorable  to  im- 
portation. For  this,  among  other  reasons,  the  whole  power  of  laying 
duties  on  imports  was,  with  a  single  and  slight  exception,  taken  from 
the  States.  When  we  are  inquiring  whether  a  particular  act  is 
^ithin  this  prohibition,  the  question  is  not,  whether  the  State  may  so 
legislate  as  to  hurt  itself,  but  Avhether  the  Act  is  within  the  words 
and  mischief  of  the  prohibitory  clause.  It  has  already  been  shown 
that  a  tax  on  the  article  in  the  hands  of  the  importer  is  within  its 
words ;  and  we  think  it  too  clear  for  controversy  that  the  same  tax  is 
within  its  mischief.  We  think  it  unquestionable  that  such  a  tax  has 
precisely  the  same  tendency  to  enhance  the  price  of  the  article,  as  if 
imposed  upon  it  while  entering  the  port. 

The  counsel  for  the  State  of  Maryland  insist,  with  great  reason, 
that  if  the  words  of  the  prohibition  be  taken  in  their  utmost  latitude, 
they  will  abridge  the  power  of  taxation,  which  all  admit  to  be  essen- 
tial to  the  States,  to  an  extent  which  has  never  yet  been  suspected, 
and  will  deprive  them  of  resources  which  are  necessary  to  supply 
revenue,  and  which  they  have  heretofore  been  admitted  to  possess. 
These  words  must,  therefore,  be  construed  with  some  limitation  ;  and, 
if  this  be  admitted,  they  insist,  that  entering  the  country  is  the  point 
of  time  when  the  prohibition  ceases,  and  the  power  of  the  State  to 
tax  commences. 

It  may  be  conceded  that  the  words  of  the  prohibition  ought  not  to 
be  pressed  to  their  utmost  extent  j  that  in  our  complex  system,  the 


I 


SECT.  II.  b.  2.]  BROWN   V.   MARYLAND.  307 

object  of  the  powers  conferred  on  the  government  of  the  Union,  and 
the  ncature  of  the  often  conflicting  powers  which  remain  in  the  States, 
nuist  always  be  taken  into  view,  and  may  aid  in  expounding  the 
words  of  any  particular  clause.  But,  while  we  admit  that  sound  prin- 
ciples of  construction  ought  to  restrain  all  courts  from  carrying  the 
words  of  the  prohibition  beyond  the  object  the  Constitution  is  in- 
tended to  secure  ;  that  there  must  be  a  point  of  time  when  the  pro- 
hibition ceases,  and  the  power  of  the  State  to  tax  commences ;  we\ 
cannot  admit  that  this  point  of  time  is  the  instant  that  the  articles 
enter  the  country.  It  is,  we  think,  obvious,  that  this  construction 
would  defeat  the  prohibition. 

The  constitutional  prohibition  on  the  States  to  lay  a  duty  on  im- 
ports, a  prohibition  which  a  vast  majority  of  them  must  feel  an 
interest  in  preserving,  may  certainly  come  in  conflict  with  their 
acknowledged  power  to  tax  persons  and  property  within  their  ter- 
ritory. The  power,  and  the  restriction  on  it,  though  quite  distin- 
guishable when  they  do  not  approach  each  other,  may  yet,  like  the 
intervening  colors  between  white  and  black,  approach  so  nearly  as  to 
perplex  the  understanding,  as  colors  perplex  the  vision  in  marking 
the  distinction  between  them.  Yet  the  distinction  exists,  and  must 
be  marked  as  the  cases  arise.  Till  they  do  arise,  it  might  be  pre- 
mature to  state  any  rule  as  being  universal  in  its  a})plicatiou.  It  is 
sufficient  for  the  present  to  say,  generally,  that  when  the  importer  has 
so  acted  upon  the  thing  imported,  that  it  has  become  incorporated  and  1 
mixed  up  with  the  mass  of  property  in  the  country,  it  has,  perhaps,  I 
lost  its  distinctive  character  as  an  import,  and  has  become  subject  to  | 
the  taxing  power  of  the  State ;  but  while  remaining  the  property  of 
the  importer,  in  his  warehouse,  in  the  original  form  or  package  in 
which  it  was  imported,  a  tax  upon  it  is  too  plainly  a  duty  on  imports 
to  escape  the  prohibition  in  the  Constitution. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  imi)orter 
purchases,  by  payment  of  the  duty  to  the  United  States,  a  right  to 
dispose  of  his  merchandise,  as  well  as  to  bring  it  into  the  country; 
and  certainly  the  argument  is  supported  by  strong  reason,  as  well  as 
by  the  practice  of  nations,  including  our  own.     The  object  of  impor-) 
tation  is  sale  ;  it  constitutes  the  motive  for  paying  the  duties ;  and  if  \ 
the  United  States  possess  the  power  of  conferring  the  right  to  sell, 
as  the  consideration  for  which  the  duty  is  paid,  every  principle  of 
fair  dealing  requires  tliat  they  should  be  understood  to  confer  it. 
The  practice  of  the  most  commercial  nations  conforms  to  this  idea. 
Duties,  according  to  that  practice,  are  charged  on  those  articles  onlyj 
wliich  are  intended  for  sale  or  consumption  in  the  country.     Thus,j 
sea  stores,  goods  imported  and  re-exported  in  the  same  vessel,  goods ^ 
landed  and  carried  overland  for  the  purpose  of  being  re-exported  from 
some  other  port,  goods  forced  in  by  stress  of  weather,  and  landed, 
but  not  for  sale,  are  exempted  from   the  payment  of  duties.     The- 
whole  course  of  legislation  on  tlie  subject  shows  that,  in  the  opinion j 


308  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

of  the  legislature,  the  right  to  sell  is  connected  with  the  payment 
of  duties. 

The  counsel  for  the  defendant  in  error  have  endeavored  to  illustrate 
their  proposition,  that  the  constitutional  prohibition  ceases  the  instant 
the  goods  enter  the  country,  by  an  array  of  the  consequences  which 
they  suppose  must  follow  the  denial  of  it.  If  the  importer  acquires 
the  right  to  sell  by  the  payment  of  duties,  he  may,  they  say,  exert 
that  right  when,  where,  and  as  he  pleases,  and  the  State  cannot  regu- 
late it.  He  may  sell  by  retail,  at  auction,  or  as  an  itinerant  peddler. 
He  may  introduce  articles,  as  gunpowder,  which  endanger  a  city,  into 
the  midst  of  its  population  ;  he  may  introduce  articles  which  endan- 
ger the  public  health,  and  the  power  of  self-preservation  is  denied. 
An  importer  may  bring  in  goods,  as  plate,  for  his  own  use,  and  thus 
retain  much  valuable  jDroperty  exempt  from  taxation. 

These  objections  to  the  principle,  if  well  founded,  would  certainly 
be  entitled  to  serious  consideration.  But  we  think  they  will  be 
found,  on  examination,  not  to  belong  necessarily  to  the  principle,  and 
consequently  not  to  prove  that  it  may  not  be  resorted  to  with  safety 
as  a  criterion  by  which  to  measure  the  extent  of  the  prohibition. 

This  indictment  is  against  the  importer,  for  selling  a  package  of 
dry  goods  in  the  form  in  whicli  it  was  imported,  without  a  license. 
This  state  of  things  is  changed  if  he  sells  them  or  otherwise  mixes 
them  with  the  general  property  of  the  State,  by  breaking  up  his 
packages,  and  travelling  with  them  as  an  itinerant  peddler.  In  the 
first  case,  the  tax  intercepts  the  import,  as  an  import  in  its  way  to 
become  incorporated  with  the  general  mass  of  property,  and  denies  it 
the  privilege  of  becoming  so  incorporated  until  it  shall  have  con- 
tributed to  the  revenue  of  the  State.  It  denies  to  the  import&r  ^he 
^ight  of  using  the  privilege  which  he  has  purchased  from  the  United 
States,  until  he  shall  have  also  pui'chased  it  from  the  State.  In  the 
last  cases,  the  tax  finds  the  article  already  incorporated  with  the  mass 
)f  property  by  the  act  of  the  importer.  He  has  used  the  privilege 
le  had  purchased,  and  has  himself  mixed  them  up  with  the  common 
{mass,  and  the  law  may  treat  them  as  it  finds  them.  The  same  obser- 
vations apply  to  plate,  or  other  furniture  used  by  the  importer. 

So  if  he  sells  by  auction.  Auctioneers  are  persons  licensed  by  the 
State,  and  if  the  importer  chooses  to  employ  them,  he  can  as  little 
object  to  paying  for  this  service,  as  for  any  other  for  which  he  may 
apply  to  an  officer  of  the  State.  The  right  of  sale  may  very  well  be 
annexed  to  importation,  without  annexing  to  it,  also,  the  privilege  of 
using  the  officers  licensed  by  the  State  to  make  sales  in  a  peculiar 
way. 

The  power  to  direct  the  removal  of  gunpowder  is  a  branch  of  the 
police  power,  which  unquestionably  remains,  and  ought  to  remain, 
with  the  States.  If  the  possessor  stores  it  himself  out  of  town,  the 
removal  cannot  be  a  duty  on  imports,  because  it  contributes  nothing 
to  the  Revenue.     If  he  prefers  placing  it  in  a  public  magazine,  it  is 


1 

i 


SECT.  II.  b.  2.]  BROWN    V.    MARYLAND.  309 

because  he  stores  it  there,  in  his  own  opinion,  more  advantageously 
than  elsewhere.  We  are  not  sure  that  this  may  not  be  classed  among 
inspection  laws.  The  removal  or  destruction  of  infectious  or  unsound 
articles  is  undoubtedly  an  exercise  of  that  power,  and  forms  an 
express  exception  to  the  prohibition  we  are  considering.  Indeed 
the  laws  of  the  United  States  expressly  sanction  the  health  laws  of 
a  State. 

The  principle,  then,  for  which  the  plaintiffs  in  error  contend,  that 
the  importer  acquires  a  right,  not  only  to  bring  the  articles  into  the 
country,  but  to  mix  them  with  the  common  mass  of  property,  does 
not  interfere  with  the  necessary  power  of  taxation  which  is  acknowl- 
edged to  reside  in  the  States,  to  that  dangerous  extent  which  the 
counsel  for  the  defendants  in  error  seem  to  apprehend.  It  carries 
the  prohibition  in  the  Constitution  no  further  than  to  prevent  the 
States  from  doing  that  which  it  was  the  great  object  of  the  Constitu- 
tion to  prevent. 

But  if  it  should  be  proved  that  a  duty  on  the  article  itself  would 
be  repugnant  to  the  Constitution,  it  is  still  argued  that  this  is  not  a     [^ 
tax  upon  the  article,  but  on  the  person.     The  State,  it  is  said,  may 
tax  occupations,  and  this  is  notliing  more. 

It  is  impossible  to  conceal  from  ourselves  that  this  is  varying  the 
form   without   varying  the  substance.     It  is  treating  a  prohibition 
which  is  general  as  if  it  were  confined  to  a  particular  mode  of  doing 
the  forbidden  thing.     All  must  perceive  that  a  tax  on  the  sale  of  ag^   './■- 
article,  imported  only  for  sale,  is  a  tax  on  .the  article  itself.     It  is 
true  the  State  may  tax  occupations   generally,  but  this  tax  must  be  I 
paid  by  those  who  employ  the  individual,  or  is  a  tax  on  his  business.  I 
The  lawyer,  the  physician,  or  the  mechanic,  must  either  charge  more    ^ 
on  the  article  in  which  he  deals,  or  the  thing  itself  is  taxed  through 
his  person.     This  the  State  has  a  right  to  do,  because  no  consti- 
tutional prohibition  extends  to  it.     So  a  tax  on  the  occupation  of  an 
importer  is,  in  like  manner,  a  tax  on  importation.     It  must  add  to  the 
price  of  the  article,  and  be  paid  by  the  consumer,  or  by  the  importer 
himself,  in  like  manner  as  a  direct  duty  on  the  article  itself  would  be 
made.     This  the  State  has  not  a  right  to  do,  because  it  is  prohibited 
by  the  Constitution. 

In  support  of  the  argument  that  the  prohibition  ceases  the  instant 
the  goods  are  brought  into  the  country,  a  comparison  has  been  drawn 
between  the  opposite  words,  export  and  import.     As  to  export,  it  is 
said,  means  only  to  carry  goods  out  of   the  country,    so  to  import     \^ 
means  only  to  bring  them  into  it.     But  suppose  we  extend  this  com- 
parison to  the  two  prohibitions.     The  States  are  forbidden  to  lay  a  ' 
duty  on  exports,  and  the  United  States  are  forbidden  to  lay  a  tax  oil) 
duty  on  articles  exported  from  any  State.     There  is  some  diversity  / 
in  language,  but  none  is  perceivable  in  the  act  v/hich  is  prohibited. ' 
The  United  States  have  the   same  right  to  tax  occupations  which  is 
possessed  by  the  States.     Xow  suppose  the  United  States  should  re- 


310  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

quire  every  exporter  to  take  out  a  license,  for  which  he  should  pay 
such  tax  as  Congress  might  think  proper  to  impose  ;  would  govern- 
ment be  permitted  to  shield  itself  from  the  just  censure  to  which  this 
attempt  to  evade  the  prohibitions  of  the  Constitution  would  expose  it, 
by  saying  that  this  was  a  tax  on  the  person,  not  on  the  article,  and 
\that  the  legislature  had  a  right  to  tax  occupations  ?  Or  suppose 
revenue  cutters  were  to  be  stationed  off  the  coast  for  the  purpose  of 
levying  a  duty  on  all  merchandise  found  in  vessels  which  were  leav- 
ing the  United  States  for  foreign  countries  ;  would  it  be  received  as 
an  excuse  for  this  outrage,  were  the  government  to  say  that  exporta- 
tion meant  no  more  than  carrying  goods  out  of  the  country,  and  as 
the  prohibition  to  lay  a  tax  on  imports,  or  thing  imported,  ceased  the 
instant  they  were  brought  into  the  country,  so  the  prohibition  to  tax 
articles  exported  ceased  when  they  were  carried  out  of  the  country  ? 

We  think  then,  that  the  act  under  which  the  plaintiffs  in  error 
Avere  indicted  is  repugnant  to  that  article  of  the  Constitution  which 
declares,  that  "  no  State  shall  lay  any  impost  or  duties_on__imj3orts 
\  or  exports." 

2.  Is  it  also  repugnant  to  that  clause  in  the  Constitution  which 
empowers  "Congress  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes  "  ? 

The  oppressed  and  degraded  state  of  commerce  previous  to  the 
adoption  of  the  Constitution  can  scarcely  be  forgotten.  It  was  regu- 
lated by  foreign  nations  with  a  single  view  to  their  own  interests ; 
and  our  disunited  efforts  to  counteract  their  restrictions  were  ren- 
dered impotent  by  want  of  combination.  Congress,  indeed,  possessed 
the  power  of  making  treaties ;  but  the  inability  of  the  federal  gov- 
ernment to  enforce  them  had  become  so  apparent  as  to  render  that 
power  in  a  great  degree  useless.  Those  who  felt  the  injury  arising 
from  this  state  of  things,  and  those  who  were  capable  of  estimating 
the  influence  of  commerce  on  the  prosperity  of  nations,  perceived  the 
necessity  of  giving  the  control  over  this  important  subject  to  a  single 
government.  It  may  be  doubted  whether  any  of  the  evils  proceeding 
from  the  feebleness  of  the  Federal  government  contributed  more  to 
that  great  revolution  which  introduced  the  present  system  than  the 
deep  and  general  conviction  that  commerce  ought  to  be  regulated  by 
Congress.  It  is  not,  therefore,  matter  of  surprise,  that  the  grant 
should  be  as  extensive  as  the  mischief,  and  should  comprehend  all 
foreign  commerce  and  a,ll  commerce  among  the  States.  To  construe 
the  power  so  as  to  impair  its  efficacy,  would  tend  to  defeat  an  object 
in  the  attainment  of  which  the  American  public  took,  and  justly 
took  that  strong  interest  which  arose  from  a  full  conviction  of  its 
necessity. 

What,  then,  is  the  just  extent  of  a  power  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  States  ? 

This  question  was  considered  in  the  case  of  Gibbons  v.  Ogden, 
9  Wheat.  1,  iu  which  it  was  declared  to  be  complete  in  itself,  and  to 


J 


SECT.  II,  b.  2.]  BROWN   V,   MARYLAND.  311 

acknowledge  no  limitations  other  than  are  prescribed  by  the  Consti- 
tution, The  power  is  co-extensive  with  the  subject  on  Avhich  it  acts, 
and  cannot  be  stopped  at  the  external  boundary  of  a  State,  but  must 
enter  its  interior. 

We  deem  it  unnecessary  now  to  reason  in  support  of  these  propo- 
sitions. Their  truth  is  proved  by  faots  continually  before  our  eyes, 
and  was,  we  think,  demonstrated,  if  they  could  require  demonstration, 
in  the  case  already  mentioned. 

If  this  power  reaches  the  interior  of  a  State,  and  may  be  there 
exercised,  it  must  be  capable  of  authorizing  the  sale  of  those  articles 
which  it  introduces.  Commerce  is  intercourse  ;  one  of  its  most  ordi- 
nary ingredients  is  traffic.  It  is  inconceivable  that  the  power  to  j 
authorize  this  traffic,  when  given  in  the  most  comprehensive  terms,  I 
with  the  intent  that  its  efficacy  should  be  complete,  should  cease  at 
the  point  when  its  continuance  is  indispensable  to  its  value.  To  what 
purpose  should  the  power  to  allow  importation  be  given,  unaccom- 
panied with  the  ix)wer  to  authorize  a  sale  of  the  thing  imported  ? 
Sale  is  the  object  of  importation,  and  is  an  essential  ingredient  of 
that  intercourse,  of  which  importation  constitutes  a  part.  It  is  as 
essential  an  ingredient,  as  indispensable  to  the  existence  of  the  entire 
thing,  then,  as  importation  itself.  It  must  be  considered  as  a  com- 
ponent part  of  the  power  to  regulate  commerce.  Congress  has  a 
right,  not  only  to  authorize  importation,  but  to  authorize  tlie~im4 
porter  to  sell. 

If  this  be  admitted,  and  we  think  it  cannot  be  denied,  what  can  be 
the  meaning  of  an  act  of  Congress  which  authorizes  importation,  and 
offers  the  privilege  for  sale  at  a  fixed  price  to  every  person  who 
chooses  to  become  a  purchaser  ?  How  is  it  to  be  construed  if  an  in- 
tent to  deal  honestly  and  fairly,  an  intent  as  wise  as  it  is  moral,  is  to 
enter  into  the  construction  ?  What  can  be  the  use  of  the  contract, 
what  does  the  importer  purchase,  if  he  does  not  purchase  the  privilege 
to  sell  ? 

What  would  be  the  language  of  a  foreign  government,  which  should 
be  informed  that  its  merchants,  after  importing  according  to  law, 
were  forbidden  to  sell  the  merchandise  imported  ?  What  answer 
would  the  United  States  give  to  the  complaints  and  just  reproaches 
to  which  such  an  extraordinary  circumstance  would  expose  them  ? 
No  apology  could  be  received,  or  even  offered.  Such  a  state  of  things 
would  break  up  commerce.  It  will  not  meet  this  argument  to  say 
that  this  state  of  things  will  never  be  produced ;  that  the  good  sense 
of  the  States  is  a  sufficient  security  against  it.  The  Constitution  has 
not  confided  this  subject  to  that  good  sense.  It  is  placed  elsewhere. 
The  question  is,  Where  does  the  power  reside  ?  not.  How  far  will  it  be 
probably  abused  ?  The  power  claimed  by  the  State  is,  in  its  nature,  ^ 
in  conflict  with  that  given  to  Congress  ;  and  the  greater  or  less  extent  1 
in  which  it  may  be  exercised  does  not  enter  into  the  inquiry  concern- 
ins:  its  existence. 


312  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

We  think,  then,  that  if  the  power  to  authorize  a  sale  exists  in  Con- 
gress, the  conclusion  that  the  right  to  sell  is  connected  with  the  law 
permitting  importation,  as  an  inseparable  incident,  is  inevitable. 

If  the  principles  we   have  stated  be  correct,  the  result  to  which 
they  conduct  us  cannot  be  mistaken.     Any  penalty  inflicted  on  the 
importer  for  selling  the  article,  in  his  character  of  importer,  must 
be  in  opposition  to  the  act  of  Congress  which  authorizes  importa- 
tion.    Any  charge  on  the  introduction  and  incorporation  of  the  arti- 
/f  cles  into  and  with  the  mass  of  property  in  the  country,  must  be  hostile 
/     to  the  power  given  to  Congress  to  regulate  commerce,  since  an  es- 
\     sential  part  of  that  regulation,  and  principal  object  of  it,  is,  to  pre- 
\  I  scribe  the  regular  means  for  accomplishing  that  introduction  and 
incorporation. 

The  distinction  between  a  tax  on  the  thing  imported  and  on  the 
person  of  the  importer,  can  have  no  influence  on  this  part  of  the  sub- 
ject. It  is  too  obvious  for  controversy  that  they  interfere  equally 
with  the  power  to  regulate  commerce. 

It  has  been  contended  that  this  construction  of  the  power  to  regu- 
late commerce,  as  was  contended  in  construing  the  prohibition  to  lay 
duties  on  imports,  would  abridge  the  acknowledged  power  of  a  State 
to  tax  its  own  citizens,  or  their  property  within  its  territory. 

We  admit  this  power  to  be  sacred ;  but  cannot  admit  that  it  may 
be  used  so  as  to  obstruct  the  free  course  of  a  power  given  to  Congress. 
We  cannot  admit  that  it  may  be  used  so  as  to  obstruct  or  defeat  the 
power  to  regulate  commerce.  It  has  been  observed  that  the  powers 
remaining  with  the  States  may  be  so  exercised  as  to  come  in  conflict 
with  those  vested  in  Congress.  When  this  happens,  that  which  is 
not  supreme  must  yield  to  that  which  is  supreme.  This  great  and 
universal  truth  is  inseparable  from  the  nature  of  things,  and  the  Con- 
stitution  has  applied  it  to  the  often  interfering  powers  of  the  General 
and  State  governments,  as  a  vital  principle  of  perpetual  operation. 
It  results,  necessarily,  from  this  principle,  that  the  taxing  power  of 
the  States  must  have  some  limits.  It  cannot  reach  and  restrain  the 
action  of  the  national  government  within  its  proper  sphere.  It  can% 
not  reach  the  administration  of  justice  in  the  courts  of  the  Union,  op 
the  collection  of  the  taxes  of  the  United  States,  or  restrain  the  opera-- 
jtion  of  any  law  which  Congress  may  constitutionally  pass.  It  cannot 
interfere  with  any  regulation  of  commerce.  If  the  States  may  tax 
all  persons  and  property  found  on  their  territory,  what  shall  restrain 
them  from  taxing  goods  in  their  transit  through  the  State  from  one 
port  to  another,  for  the  purpose  of  re-exportation  ?  The  laws  of 
trade  authorize  this  operation,  and  general  convenience  requires  it. 
Or  what  should  restrain  a  State  from  taxing  any  article  passing 
through  it,  from  one  State  to  another,  for  the  purpose  of  traffic?  or 
from  taxing  the  transportation  of  articles  passing  from  the  State 
itself  to  another  State  for  commercial  purposes  ?  These  cases  are  all 
within  the  sovereign  power  of  taxation,  but  would  obviously  derange 


SECT.  II.  b.  2.]  WELTON    V.    MISSOURI.  313 

the  measures  of  Congress  to  regulate  commerce,  and  affect  materially 
the  purpose  for  which  that  power  was  given.  We  deem  it  unnecessary 
to  press  this  argument  further,  or  to  give  additional  illustrations  of  it, 
because  the  subject  was  taken  up  and  considered  with  great  attention, 
in  M'Culloch  y^The  State  of  Maryland,  4  Wheat.  316,  the  decision 
in  which  case  is,  we  think,  entirely  applicable  to  this. 

It  may  be  proper  to  add  that  we  suppose  the  principles  laid  down 
in  this  case  to  apply  equally  to  importations  from  a  sister  State.  We 
do  not  mean  to  give  any  opinion  on  a  tax  discriminating  between 
foreign  and  domestic  articles. 

We  think  there  is  error  in  the  judgment  of  the  Court  of  Appeals  of 
the  State  of  Maryland,  in  affirming  the  judgment  of  the  Baltimore 
City  Court,  because  the  act  of  the  Legislature  of  Maryland,  imposing 
the  penalty  for  which  the  said  judgment  is  rendered,  is  repugnant  to 
the  Constitution  of  the  United  States,  and,  consequently,  void.  The 
judgment  is  to  be  reversed,  and  the  cause  remanded  to  that  court, 
with  instructions  to  enter  judgment  in  favor  of  the  appellants.* 


Y 


WELTON  V.   MISSOURI. 
91  United  States,  275.     1875. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  a  writ  of  error  to  the  Supreme  Court 
of  Missouri,  and  involves  a  consideration  of  the  validity  of  a  statute 
of  that  State,  discriminating  in  favor  of  goods,  wares,  and  merchan- 
dise which  are  the  growth,  product,  or  manufacture  of  the  State,  and 
against  those  which  are  the  growth,  product,  or  manufacture  of  other 
States  or  covmtries,  in  the  conditions  upon  which  their  sale  can  be 
made  by  travelling  dealers.  The  plaintiff  in  error  was  a  dealer  in 
sewing-machines  which  were  manufactured  without  the  State  of 
Missouri,  and  went  from  place  to  place  in  the  State  selling  them 
without  a  license  for  that  purpose.  For  this  offence  he  was  indicted 
and  convicted  in  one  of  the  circuit  courts  of  the  State,  and  was  sen- 
tenced to  pay  a  fine  of  fifty  dollars,  and  to  be  committed  until  the 
same  was  paid.  On  appeal  to  the  Supreme  Court  of  the  State,  the 
judgment  was  affirmed. 

The  statute  under  which  the  conviction  was  had  declares  that 
whoever  deals  in  the  sale  of  goods,  wares,  or  merchandise,  except 
books,  charts,  maps,  and  stationery,  which  are  not  the  growth,  pro- 
duce, or  manufacture  of  the  State,  by  going  from  place  to  place  to 
sell  the  same,  shall  be  deemed  a  pedler;  and  then  enacts  that  no 

1  Mr.  Justice  Thompson  dissented. 


k' 


314  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

person  shall  deal  as  a  pedler  without  a  license,  and  prescribes  the 
rates  of  charge  for  the  licenses,  these  varying  according  to  the  manner 
in  which  the  business  is  conducted,  whether  by  the  party  carrying  the 
goods  himself  on  foot,  or  by  the  use  of  beasts  of  burden,  or  by  carts 
or  other  land  carriage,  or  by  boats  or  other  river  vessels.  Penalties 
are  imposed  for  dealing  without  the  license  prescribed.  No  license 
is  required  for  selling  in  a  similar  way,  by  going  from  place  to  place 
in  the  State,  goods  which  are  the  growth,  product,  or  manufacture  of 
the  State. 

The  license  charge  exacted  is  sought  to  be  maintained  as  a  tax 
upon  a  calling.  It  was  held  to  be  such  a  tax  by  the  Supreme  Court 
of  the  State ;  a  calling,  says  the  court,  which  is  limited  to  the  sale  of 
merchandise  not  the  growth  or  product  of  the  State. 

The  general  power  of  the  State  to  impose  taxes  in  the  way  of 
licenses  upon  all  pursuits  and  occupations  within  its  limits  is  ad- 
mitted, but,  like  all  other  powers,  must  be  exercised  in  subordination 
to  the  requirements  of  the  Federal  Constitution.  Where  the  business 
or  occupation  consists  in  the  sale  of  goods,  the  license  tax  required 
for  its  pursuit  is  in  effect  a  tax  upon  the  goods  themselves.  If  such 
a  tax  be  within  the  power  of  the  State  to  levy,  it  matters  not  whetlier 
it  be  raised  directly  from  the  goods,  or  indirectly  from  them  through 
the  license  to  the  dealer ;  but  if  such  tax  conflict  with  any  power 
vested  in  Congress  by  the  Constitution  of  the  United  States,  it  will 
not  be  any  the  less  invalid  because  enforced  through  the  form  of  a 
personal  license. 

[The  court  here,  and  again  further  on,  states  and  quotes  from 
Brown  v.  Maryland,  12  Wheat.  425,  supra,  p.  303.] 

So,  in  like  manner,  the  license  tax  exacted  by  the  State  of  Missouri 
from  dealers  in  goods  which  are  not  the  product  or  manufacture  of 
the  State,  before  they  can  be  sold  from  place  to  place  within  the 
State,  must  be  regarded  as  a  tax  upon  such  goods  themselves;  and 
the  question  presented  is,  whether  legislation  thus  discriminating 
against  the  products  of  other  States  in  the  conditions  of  their 
sale  by  a  certain  class  of  dealers  is  valid  under  the  Constitution  of 
the  United  States.  It  was  contended  in  the  State  courts,  and  it  is 
urged  here,  that  this  legislation  violates  that  clause  of  the  Constitu- 
tion which  declares  that  Congress  shall  have  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  several  States.  The 
power  to  regulate  conferred  by  that  clause  upon  Congress  is  one  with- 
out limitation ;  and  to  regulate  commerce  is  to  prescribe  rules  by 
which  it  shall  be  governed,  —  that  is,  the  conditions  upon  which  it 
shall  be  conducted ;  to  determine  how  far  it  shall  be  free  and  untram- 
melled, how  far  it  shall  be  burdened  by  duties  and  imposts,  and  how 
far  it  shall  be  prohibited. 

Commerce  is  a  term  of  the  largest  import.  It  comprehends  inter- 
course for  the  purposes  of  trade  in  any  and  all  its  forms,  including 
the  transportation,  purchase,  sale,  and  exchange  of  commodities  be- 


SECT.  IT.  b.  2.]  WELTON   V.   MISSOURI.  315 

tween  the  citizens  of  our  country  and  the  citizens  or  subjects  of  other 
countries,  and  between  the  citizens  of  different  States.  The  power 
to  regulate  it  embraces  all  the  instruments  by  which  such  commerce 
may  be  conducted.  So  far  as  some  of  these  instruments  are  con- 
cerned, and  some  subjects  which  are  local  in  their  operation,  it  has 
been  held  that  the  States  may  provide  regulations  until  Congress 
acts  with  reference  to  them;  but  where  the  subject  to  which  the 
power  applies  is  national  in  its  character,  or  of  such  a  nature  as  to 
admit  of  uniformity  of  regulation,  the  power  is  exclusive  of  all  State 
authority. 

It  will  not  be  denied  that  that  portion  of  commerce  with  foreign 
countries  and  between  the  States  which  consists  in  the  transportation 
and  exchange  of  commodities  is  of  national  importance,  and  admits 
and  requires  uniformity  of  regulation.  The  very  object  of  investing 
this  power  in  the  General  Government  was  to  insure  this  uniformity 
against  discriminating  State  legislation.  The  depressed  condition  of 
commerce  and  the  obstacles  to  its  growth  previous  to  the  adoption  of 
the  Constitution,  from  the  want  of  some  single  controlling  authority, 
has  been  frequently  referred  to  by  this  court  in  commenting  upon  the 
power  in  question.  .  .  . 

The   power  which   insures  uniformity  of   commercial   regulation 
must  cover  the  property  which  is  transported  as  an  article  of  com-  j 
merce  from  hostile  or  interfering  legislation,  until  it  has  mingled 
with  and  become  a  part  of  the  general  property  of  the  country,  and 
subjected  like  it  to  similar  protection,  and  to  no  greater  burdens.    If, 
at  any  time  before  it  has  thus  become  incorporated  into  the  mass  of 
property  of  the  State  or  nation,  it  can  be  subjected  to  any  restrictions 
by  State  legislation,  the  object  of  investing  the  control  in  Congress 
may  be  entirely  defeated.     If  Missouri  can  require  a  license  tax  for , 
the  sale  by  travelling  dealers  of  goods  which  are  the  growth,  product,  l 
or  manufacture  of  other  States  or  countries,  it  may  require  such 
license  tax  as  a  condition  of  their  sale  from  ordinary  merchants,  and  j 
the  amount  of  the  tax  will  be  a  matter  resting  exclusively  in  its 
discretion. 

The  power  of  the  State  to  exact  a  license  tax  of  any  amount  being  \ 
admitted,  no  authority  would  remain  in  the  United  States  or  in  this 
court  to  control  its  action,  however  unreasonable  or  oppressive.  Im- 
posts operating  as  an  absolute  exclusion  of  the  goods  would  be  pos- 
sible, and  all  the  evils  of  discriminating  State  legislation,  favorable 
to  the  interests  of  one  State  and  injurious  to  the  interests  of  other 
States  and  countries,  which  existed  previous  to  the  adoption  of  the 
Constitution,  might  follow,  and  the  experience  of  the  last  fifteen 
years  shows  would  follow,  from  the  action  of  some  of  the  States. 

There  is  a  difficulty,  it  is  true,  in  all  cases  of  this  character,  in  draw- 
ing  the  line  precisely  where  the  commercial  power  of  Congress  ends 
and  the  power  of  the  State  begins.  A  similar  difficulty  was  felt  by  this 
court,  in  Brown  v.  Maryland,  in  drawing  the  line  of  distinction  between 


316  THE   LEGISLATIVE    DEPAP.TMENT.  [CHAP.  IV. 

/the  restriction  upon  the  power  of  the  States  to  lay  a  duty  on  imports, 
land  their  acknowledged  power  to  tax  persons  and  property;  but  the 
court  observed,  that  the  two,  though  quite  distinguishable  when  they 
do  not  approach  each  other,  may  yet,  like  the  intervening  colors 
between  white  and  black,  approach  so  nearly  as  to  perplex  the  under- 
standing, as  colors  perplex  the  vision  in  marking  the  distinction 
between  them ;  but  that,  as  the  distinction  exists,  it  must  be  marked 
as  the  cases  arise.  And  the  court,  after  observing  that  it  miglit  be 
premature  to  state  any  rule  as  being  universal  in  its  application,  held, 
that,  when  the  importer  had  so  acted  upon  the  thing  imported  that  it 

(had  become  incorporated  and  mixed  up  with  the  mass  of  property  in 
the  country,  it  had  lost  its  distinctive  character  as  an  import,  and 
become  subject  to  the  taxing  power  of  the  State;  but  that,  while 
J  remaining  the  property  of  the  importer  in  his  warehouse  in  the 
original  form  and  package  in  which  it  was  imported,  the  tax  upon  it 
was  plainly  a  duty  on  imports  prohibited  by  the  Constitution. 

Following  the  guarded  language  of  the  court  in  that  case,  we 
observe  here,  as  was  observed  there,  that  it  would  be  premature  to 
state  any  rule  which  would  be  universal  in  its  application  to  deter- 
mine when  the  commercial  power  of  the  Federal  Government  over 
a  commodity  has  ceased,  and  the  power  of  the  State  has  commenced. 
/It  is  sufficient  to  hold  now  that  the  commercial  power  continues  uiitil 
the  commodity  has  ceased  to  be  the  subject  of  cITscrimTnating  legis- 
lation by  reason  of  its  foreign  character.  That  power  protects^ jt^ 
even  after  it  has  entered  the  State,  from  any  burdens  im|)osed  by. 
reason  of  its  foreign  origin.  The  act  of  ^lissouri  encroaches  upon 
this  power  in  this  respect,  and  is  therefore,  in  our  judgment,  unconsti- 
tutional and  void. 

The  fact  that  Congress  has  not  seen  fit  to  prescribe  any  specific 
rules  to  govern  interstate  commerce  does  not  affect  the  qi;estion. 
Its  inaction  on  this  subject,  when  considered  with  reference  to  its 
legislation  with  respect  to  foreign  commerce,  is  equivalent  to  a  decla- 
I ration  that  interstate  commerce  shall  be  free  and  untrammelled.  As 
the  main  object  of  that  commerce  is  the  sale  and  exchange  of  com- 
modities, the  policy  thus  established  would  be  defeated  by  discrimi- 
nating legislation  like  that  of  ^Missouri. 

The  views  here  expressed  are  not  only  supported  by  the  case  of 
Brown  ?>.  Maryland,  already  cited,  but  also  by  the  case  of  Woodruff 
V.  Parham,  8  Wall.  123,  and  the  case  of  the  State  Freight  Tax,  15 
Wall.  232.  In  the  case  of  Woodruff  v.  Parham,  Mr.  Justice  :Miller, 
speaking  for  the  court,  after  observing,  with  respect  to  the  law  of 
Alabama  then  under  consideration,  that  there  was  no  attempt  to 
discriminate  injuriously  against  the  products  of  other  States  or  the 
rights  of  their  citizens,  and  the  case  was  not,  therefore,  an  attempt 
to  fetter  commerce  among  the  States,  or  to  deprive  the  citizens  of 
other  States  of  any  privilege  or  immunity,  said,  "  But  a  law  having 
such  operation  would,   in  our  opinion,  be  an   infringement  of  the 


SECT.  II.  b.  2.J       BOBBINS    V.    SHELBY    CO.    TAXING    DISTRICT.  317 

provisions  of  the  Constitution  which  relate  to  those  subjects,  and 

therefore  void." 

The  judgment  of  the  Supreme  Court  of  the  State  of  Missouri  must 
be  reversed,  and  the  cause  remanded,  with  directions  to  enter 
a  judgment  reversing  the  judgment  of  the  Circuit  Court,  and 
directing  that  court  to  discharge  the  defendant  from  iviprison- 
ment,  and  suffer  hini  to  depart  without  day.  -^ 


>y- 


ROBBINS   V.   SHELBY   COU:^iTY  TAXING  DISTRICT. 

120  United  States,  489.     1887. 

Mk.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  case  originated  in  the  following  manner :  Sabine  Robbins,  the 
plaintiff  in  error,  in  February,  1884,  was  engaged  at  the  city  of  Mem- 
jjliis,  in  the  State  of  Tennessee,  in  soliciting  the  sales  of  goods  for 
the  firm  of  Rose,  Robbing  &  Co.,  of  Cincinnati,  in  the  State  of  Ohio, 
dealers  in  paper,  and  other  articles  of  stationery,  and  exhibited  sam- 
ples for  the  purpose  of  effecting  such  sales,  — an  employment  usually 
denominated  as  that  of  a  "  drummer."  There  was  in  force  at  that 
time  a  statute  of  Tennessee,  relating  to  the  subject  of  taxation  in  the 
Taxing  Districts  of  the  State,  applicable,  however,  only  to  tlie  Taxing 
Districts  of  Shelby  County,  (formerly  the  city  of  Memphis,)  by  which 
it  was  enacted,  amongst  other  things,  that  "All  drummers,  and  all 
persons  not  having  a  regular  licensed  house  of  business  in  the  Taxing 
District,  offering  for  sale  or  selling  goods,  wares,  or  merchandise 
therein,  by  sample,  shall  be  required  to  pay  to  the  county  trustee  the 
sum  of  SlO  per  week,  or  $25  per  month,  for  such  privilege,  and  no 
license  shall  be  issued  for  a  longer  period  than  three  months."  Act  of 
1881,  c.  9G,  §  IG. 

The  business  of  selling  by  sample  and  nearly  sixty  other  occupa- 
tions had  been  by  law  declared  to  be  privileges,  and  were  taxed  as 
such,  and  it  was  made  a  misdemeanor,  punishable  by  a  fine  of  not 
less  than  five,  nor  more  than  fifty  dollars,  to  exercise  any  of  such 
occupations  without  having  first  paid  the  tax  or  obtained  the  license 
required  therefor. 

Under  this  law,  Robbins,  who  had  not  paid  the  tax  nor  taken  a 
license,  was  prosecuted,  convicted  and  sentenced  to  pay  a  fine  of  ten 
doUai's,  together  with  the  State  and  county  tax,  and  costs  ;  and  on 
appeal  to  the  Supreme  Court  of  the  State,  the  judgment  was  affirmed. 
This  writ  of  error  is  brought  to  review  the  judgment  of  the  Supreme 
Court,  on  the  ground  that  the  law  imi)osing  the  tax  was  repugnant 
to  that  clause  of  the  Constitution  of  the  United  States  which  declares 
that  Congress  shall  have  power  to  regulate  commerce  among  the 
several  States. 


318  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

Thk  principal  question  argued  before  the  Supreme  Court  of  Ten- 
nessee  was,  as  to  the  constitutionality  of  the  act  which  imposed  the 
tax  on  drummers  ;  and  the  court  decided  that  it  was  constitutional 

and  valid. 

That  is  the  question  before  us,  and  it  is  one  of  great  importance 
to  the  people  of  the  United  States,  both  as  it  respects  their  business 
interests  and  their  constitutional  rights.  It  is  presented  in  a  nut- 
shell, and  does  not,  at  this  day,  require  for  its  solution-  any  great 
elaboration  of  argument  or  review  of  authorities.  Certain  principles 
have  been  already  established  by  the  decisions  of  this  court  which 
will  conduct  us  to  a  satisfactory  decision.  Among  those  principles 
are  the  following  : 

1.  The  Constitution  of  the  United  States  having  given  to  Congress 
the  power  to  regulate  commerce,  not  only  with  foreign  nations,  but 
among  the  several  States,  that  power  is  necessarily  exclusive  when- 
ever the  subjects  of  it  are  national  in  their  character,  or  admit  only 
of  one  uniform  system,  or  plan  of  regulation.  This  was  decided  in 
the  case  of  Cooley  v.  Board  of  Wardens  of  the  Port  of  Philadelphia, 
12  How.  299,  319,  and  was  virtually  involved  in  the  case  of  Gibbons 
V.  Ogden,  9  Wheat.  1,  and  has  been  confirmed  in  many  subsequent 
cases,  amongst  others,  in  Brown  v.  Maryland,  12  Wheat.  419  ;  The 
Passenger  Cases,  7  How.  283;  Crandall  v.  Nevada,  6  Wall.  35,  42; 
Ward  V.  :^[aryland,  12  Wall.  418,  430;  State  Freight  Tax  Cases,  15 
Wall.  232,  279 ;  Henderson  v.  Mayor  of  New  York,  92  U.  S.  259,  272 ; 
Railroad  Co.  v.  Husen,  95  U.  S.  465,  469 ;  Mobile  v.  Kimball,  102 
U.  S.  691,  697 ;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S,  196, 
203;  Wabash,  &c.  Railway  Co.  v.  Illinois,  118  U.  S.  557. 

2.  Another  established  doctrine  of  this  court  is,  that  where  the 
powder  of  Congress  to  regulate  is  exclusive  the  failure  of  Congress  to 
make  express  regulations  indicates  its  will  that  the  subject  shall  be 
left  free  from  any  restrictions  or  impositions  ;  and  any  regulation  of 
the  subject  by  the  States,  except  in  matters  of  local  concern  only,  as 
hereafter  mentioned,  is  repugnant  to  such  freedom.  This  was  held 
by  Mr.  Justice  Johnson  in  Gibbons  v.  Ogden,  9  Wheat.  1,  222,  by 
Mr.  Justice  Grier  in  the  Passenger  Cases,  7  How.  283,  462,  and  has 
been  affirmed  in  subsequent  cases.  State  Freight  Tax  Cases,  15  Wall. 
232,  279 ;  Railroad  Co.  v.  Husen,  95  U.  S.  465,  469  ;  Welton  v.  Mis- 
souri, 91  U.  S.  275,  282;  Mobile  v.  Kimball,  102  U.  S.  691,  697; 
Brown  v.  Houston,  114  U.  S.  622,  631  :  Walling  v.  Michigan,  116  U.  S. 
446,  455;  Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34; 
Wabash,  &c..  Railway  Co.  v.  Illinois,  118  U.  S.  557. 

3.  It  is  also  an  established  principle,  as  already  indicated,  that  the 
only  way  in  which  commerce  between  the  States  can  be  legitimately 
aifected  by  State  laws,  is  when,  by  virtue  of  its  police  power,  and  its 
jurisdiction  over  persons  and  property  within  its  limits,  a  State 
provides  for  the  security  of  the  lives,  limbs,  health,  and  comfort  of 
persons  and  the  protection  of  property;  or  when  it  does  those  things 


SECT.  II.  b.  2.]       BOBBINS    V.   SHELBY   CO.    TAXING   DISTRICT.  819 

which  may  otherwise  incidentally  affect  commerce,  such  as  the 
establishment  and  regulations  of  highways,  canals,  railroads,  wharves, 
ferries,  and  other  commercial  facilities  ;  the  passage  of  inspection 
laws  to  secure  the  due  quality  and  measure  of  products  and  commod- 
ities ;  the  passage  of  laws  to  regulate  or  restrict  the  sale  of  articles 
deemed  injurious  to  the  health  or  morals  of  the  community  ;  the 
imposition  of  taxes  upon  persons  residing  within  the  State  or  belong- 
ing to  its  population,  and  upon  avocations  and  employments  pursued 
therein,  not  directly  connected  with  foreign  or  interstate  commerce 
or  with  some  other  employment  or  business  exercised  under  authority 
of  the  Constitution  and  laws  of  the  United  States  ;  and  the  imposi- 
tion of  taxes  upon  all  property  within  the  State,  mingled  with  and 
forming  part  of  the  great  mass  of  property  therein.  But  in  making 
such  internal  regulations  a  State  cannot  impose  taxes  upon  persons 
passing  through  the  State,  or  coming  into  it  merely  for  a  temporary 
purpose,  especially  if  connected  with  interstate  or  foreign  commerce ; 
nor  can  it  impose  such  taxes  upon  property  imported  into  the  State 
from  abroad,  or  from  another  State,  and  not  yet  become  part  of  the 
common  mass  of  property  therein  ;  and  no  discrimination  can  be 
made,  by  any  such  regulations,  adversely  to  the  persons  or  property 
of  other  States ;  and  no  regulations  can  be  made  directly  affecting 
interstate  commerce.  Any  taxation  or  regulation  of  the  latter  char- 
acter would  be  an  unauthorized  interference  with  the  power  given  to 
Congress  over  the  subject. 

For  authorities  on  this  last  head  it  is  only  necessary  to  refer  to 
those  already  cited. 

In  a  word,  it  may  be  said,  that  in  the  matter  of  interstate  com- 
merce the  United  States  are  but  one  country,  and  are  and  must  be 
subject  to  one  system  of  regulations,  and  not  to  a  multitude  of 
systems.  The  doctrine  of  the  freedom  of  that  commerce,  except  as 
regulated  by  Congress,  is  so  firmly  established  that  it  is  unnecessary 
to  enlarge  further  upon  the  subject. 

In  view  of  these  fundamental  principles,  which  are  to  govern  our 
decision,  we  may  approach  the  question  submitted  to  us  in  the 
present  case,  and  inquire  whether  it  is  competent  for  a  State  to  levy 
a  tax  or  impose  any  other  restriction  upon  the  citizens  or  inhabitants 
of  other  States,  for  selling  or  seeking  to  sell  their  goods  in  such  State 
before  they  are  introduced  therein.  Do  not  such  restrictions  affect 
the  very  foundation  of  interstate  trade  ?  How  is  a  manufacturer,  or 
a  merchant,  of  one  State,  to  sell  his  goods  in  another  State,  without, 
in  some  way,  obtaining  orders  therefor  ?  Must  he  be  compelled  to 
send  them,  at  a  venture,  without  knowing  whether  there  is  any  de- 
mand for  them  ?  This  may,  undoubtedly,  be  safely  done  with  regard 
to  some  products  for  which  there  is  always  a  market  and  a  demand, 
or  where  the  course  of  trade  has  established  a  general  and  unlimited 
demand.  A  raiser  of  farm  produce  in  New  Jersey  or  Connecticut, 
or  a  manufacturer  of  leather  or  wooden  ware,  may,  perhaps,  safely 


320  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

take  his  goods  to  the  city  of  New  York  aud  be  sure  of  finding  a  stable 
and  reliable  market  for  them.  But  there  are  hundreds,  perhaps 
thousands,  of  articles  which  no  person  would  think  of  exporting  to 
another  State  without  first  procuring  an  order  for  them,  it  is  true, 
a  merchant  or  manufacturer  in  one  State  may  erect  or  hire  a  ware- 
house or  store  in  another  State,  in  which  to  place  his  goods,  and 
await  the  chances  of  being  able  to  sell  them.  But  this  would  require 
a  warehouse  or  a  store  in  every  State  with  which  he  might  desire  to 
trade.  Surely,  he  cannot  be  compelled  to  take  this  inconvenient  and 
expensive  course.  In  certain  branches  of  business,  it  may  be  adopted 
with  advantage.  Many  manufacturers  do  open  houses  or  places  of 
business  in  other  States  than  those  in  which  they  reside,  and  send 
their  goods  there  to  be  kept  on  sale.  But  this  is  a  matter  of  conven- 
ience, and  not  of  compulsion,  and  would  neither  suit  the  convenience 
nor  be  within  the  ability  of  many  others  engaged  in  the  same  kind 
of  business,  and  would  be  entirely  unsuited  to  many  branches  of 
business.  In  these  cases,  then,  what  shall  the  merchant  or  manu- 
facturer do,  who  wishes  to  sell  his  goods  in  other  States  ?  Must  he 
sit  still  in  his  factory  or  warehouse,  and  wait  for  the  people  of 
those  States  to  come  to  him  ?  This  would  be  a  silly  and  ruinous 
proceeding. 

The  only  other  way,  and  the  one,  perhaps,  which  most  extensively 
prevails,  is  to  obtain  orders  from  persons  residing  or  doing  business 
in  those  other  States.  But  how  is  the  merchant  or  manufacturer  to 
secure  such  orders  ?  If  he  may  be  taxed  by  such  States  for  doing 
so,  who  shall  limit  the  tax  ?  It  may  amount  to  prohibition.  To  say 
that  such  a  tax  is  not  a  burden  upon  interstate  commerce,  is  to  speak 
at  least  unadvisedly  and  without  due  attention  to  the  truth  of 
things. 

It  may  be  suggested  that  the  merchant  or  manufacturer  has  the 
post-office  at  his  command,  and  may  solicit  orders  through  the  mails. 
We  do  not  suppose,  however,  that  any  one  would  seriously  contend 
that  this  is  the  only  way  in  which  his  business  can  be  transacted 
without  being  amenable  to  exactions  on  the  part  of  the  State.  Be- 
sides, why  could  not  the  State  to  which  his  letters  might  be  sent,  tax 
him  for  soliciting  orders  in  this  way,  as  well  as  in  any  other  way  ? 

The  truth  is,  that,  in  numberless  instances,  the  most  feasible,  if 
not  the  only  practicable,  way  for  the  merchant  or  manufacturer  to 
obtain  orders  in  other  States  is  to  obtain  them  by  personal  applica- 
tion, either  by  himself,  or  by  some  one  employed  by  him  for  that 
purpose ;  and  in  many  branches  of  business  he  must  necessarily 
exhibit  samples  for  the  purpose  of  determining  the  kind  and  quality 
of  the  goods  he  proposes  to  sell,  or  which  the  other  party  desires  to 
purchase.  But  the  right  of  taxation,  if  it  exists  at  all,  is  not  con- 
fined to  selling  by  sample.  It  embraces  every  act  of  sale,  whether 
by  word  of  mouth  only,  or  by  the  exhibition  of  samples.  If  the 
right  exists,  any  New  York  or  Chicago  merchant  visiting  New  Orleans 


SECT.  II.  b.  2.]       ROBBINS    V.    SHELBY   CO.    TAXING    DISTRICT.  321 

or  Jacksonville,  for  pleasure  or  for  his  health,  and  casually  taking 
an  order  for  goods  to  be  sent  from  his  warehouse,  could  be  made 
liable  to  pay  a  tax  for  so  doing,  or  be  convicted  of  a  misdemeanor 
for  not  having  taken  out  a  license.  The  right  to  tax  would  apply 
equally  as  well  to  the  principal  as  to  his  agent,  and  to  a  single  act 
of  sale  as  to  a  hundred  acts. 

But  it  will  be  said  that  a  denial  of  this  power  of  taxation  will 
interfere  with  the  right  of  the  State  to  tax  business  pursuits  and 
callings  carried  on  within  its  limits,  and  its  right  to  require  licenses 
for  carrying  on  those  which  are  declared  to  be  privileges.  This  may 
be  true  to  a  certain  extent;  but  only  in  those  cases  in  which  the 
States  themselves,  as  well  as  individual  citizens,  are  subject  to  the 
restraints  of  the  higher  law  of  the  Constitution.  And  this  interfer- 
ence will  be  very  limited  in  its  operation.  It  will  only  prevent  the 
levy  of  a  tax,  or  the  requirement  of  a  license,  for  making  negotiations 
in  the  conduct  of  interstate  commerce;  and  it  may  well  be  asked 
where  the  State  gets  authority  for  imposing  burdens  on  that  branch 
of  business  any  more  than  for  imposing  a  tax  on  the  business  of 
importing  from  foreign  countries,  or  even  on  that  of  postmaster  or 
United  States  marshal.  The  mere  calling  the  business  of  a  drummer 
a  privilege  cannot  make  it  so.  Can  the  State  legislature  make  it  a 
Tennessee  privilege  to  carry  on  the  business  of  importing  goods  from 
foreign  countries  ?  If  not,  has  it  any  better  right  to  make  it  a  State 
privilege  to  carry  on  interstate  commerce?  It  seems  to  be  forgotten 
in  argument,  that  the  people  of  this  country  are  citizens  of  the 
United  States,  as  well  as  of  the  individual  States,  and  that  they 
have  some  rights  under  the  Constitution  and  laws  of  the  former 
independent  of  the  latter,  and  free  from  any  interference  or  restraint 
from  them. 

To  deny  to  the  State  the  power  to  lay  the  tax,  or  require  the 
license  in  question,  will  not,  in  any  perceptible  degree,  diminish  its 
resources  or  its  just  power  of  taxation.  It  is  very  true,  that  if  the 
goods  when  sold  were  in  the  State,  and  part  of  its  general  mass  of 
property,  they  would  be  liable  to  taxation;  but  when  brought  into 
the  State  in  consequence  of  the  sale  they  will  be  equally  liable ;  so 
that,  in  the  end,  the  State  will  derive  just  as  much  revenue  from 
them  as  if  they  were  there  before  the  sale.  As  soon  as  the  goods 
are  in  the  State  and  become  part  of  its  general  mass  of  property,  they 
will  become  liable  to  be  taxed  in  the  same  manner  as  other  property 
of  similar  character,  as  was  distinctly  held  by  this  court  in  the  case 
of  Brown  v.  Houston,  114  U.  S.  622.  When  goods  are  sent  from  one 
State  to  another  for  sale,  or,  in  consequence  of  a  sale,  they  become 
part  of  its  general  property,  and  amenable  to  its  laws  ;  provided  that 
no  discrimination  be  made  against  them  as  goods  from  another  State, 
and  that  they  be  not  taxed  by  reason  of  being  brought  from  another 
State,  but  only  taxed  in  the  usual  way  as  other  goods  are.  Brown 
V.  Houston,  qua  supra  ;  Machine  Co.  v.  Gage,  100  U.  S.  676.     But  to 

21 


322  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tax  the  sale  of  such  goods,  or  the  offer  to  sell  them,  before  they  are 
brought  into  the  State,  is  a  very  different  thing,  and  seems  to  us 
clearly  a  tax  on  interstate  commerce  itself. 

It  is  strongly  urged,  as  if  it  were  a  material  point  in  the  case,  that 
no  discrimination  is  made  between  domestic  and  foreign  drummers  — 
those  of  Tennessee  and  those  of  other  States  ;  that  all  are  taxed  alike. 
But  that  does  not  meet  the  difficulty.  Interstate  commerce  cannot 
be  taxed  at  all,  even  though  the  same  amount  of  tax  should  be  laid 
on  domestic  commerce,  or  that  which  is  carried  on  solely  within  the 
State.  This  was  decided  in  the  case  of  The  State  Freight  Tax,  15 
Wall.  232.  The  negotiation  of  sales  of  goods  which  are  in  another 
State,  for  the  purpose  of  introducing  them  into  the  State  in  which 
the  negotiation  is  made,  is  interstate  commerce.  A  New  Orleans 
merchant  cannot  be  taxed  there  for  ordering  goods  from  London  or 
New  York,  because,  in  the  one  case,  it  is  an  act  of  foreign,  and,  in 
the  other,  of  interstate  commerce,  both  of  which  are  subject  to 
regulation  by  Congress  alone. 

It  would  not  be  difficult,  however,  to  show  that  the  tax  authorized 
by  the  State  of  Tennessee  in  the  present  case  is  discriminative 
against  the  merchants  and  manufacturers  of  other  States.  They  can 
only  sell  their  goods  in  Memphis  by  the  employment  of  drummers 
and  by  means  of  samples;  whilst  the  merchants  and  manufacturers 
of  Memphis,  having  regular  licensed  houses  of  business  there,  have 
no  occasion  for  such  agents,  and,  if  they  had,  they  are  not  subject 
to  any  tax  therefor.  They  are  taxed  for  their  licensed  houses,  it  is 
true;  but  so,  it  is  presumable,  are  the  merchants  and  manufacturers 
of  other  States  in  the  places  where  they  reside ;  and  the  tax  on 
drummers  operates  greatly  to  their  disadvantage  in  comparison  with 
the  merchants  and  manufacturers  of  jVIemphis.  And  such  was  un- 
doubtedly one  of  its  objects.  This  kind  of  taxation  is  usually 
imposed  at  the  instance  and  solicitation  of  domestic  dealers,  as  a 
means  of  protecting  them  from  foreign  competition.  And  in  many 
cases  there  may  be  some  reason  in  their  desire  for  such  protection. 
But  this  shows  in  a  still  stronger  light  the  unconstitutionality  of  the 
tax.  It  shows  that  it  not  only  operates  as  a  restriction  upon  inter- 
state commerce,  but  that  it  is  intended  to  have  that  effect  as  one 
of  its  principal  objects.  And  if  a  State  can,  in  this  way,  impose 
restrictions  upon  interstate  commerce  for  the  benefit  and  protection 
of  its  own  citizens,  we  are  brought  back  to  the  condition  of  things 
which  existed  before  the  adoption  of  the  Constitution,  and  which 
was  one  of  the  principal  causes  that  led  to  it. 

If  the  selling  of  goods  by  sample  and  the  employment  of  drummers 
for  that  purpose,  injuriously  affect  the  local  interest  of  the  States, 
Congress,  if  applied  to,  will  undoubtedly  make  such  reasonable 
regulations  as  the  case  may  demand.  And  Congress  alone  can  do  it; 
for  it  is  obvious  that  such  regulations  should  be  based  on  a  uniform 
system  applicable  to  the  whole  country,  and  not  left  to  the  varied, 


SECT.  II.  1).  2.]      ROBDINS   V.    SHELBY    CO.    TAXING    DISTRICT.  323 

discordant,  or  retaliatory  enactments  of  forty  different  States.  The 
confusion  into  which  the  commerce  of  the  country  would  be  thrown 
by  being  subject  to  State  legislation  on  this  subject,  would  be  but  a 
repetition  of  tlie  disorder  which  prevailed  under  the  Articles  of 
Confederation. 

To  say  that  the  tax,  if  invalid  as  against  drummers  from  other 
States,  operates  as  a  discrimination  against  the  drummers  of  Ten- 
nessee, against  whom  it  is  conceded  to  be  valid,  is  no  argument ; 
because  the  State  is  not  bound  to  tax  its  own  drummers ;  and  if 
it  does  so  whilst  having  no  power  to  tax  those  of  other  States,  it 
acts  of  its  own  free  will,  and  is  itself  the  author  of  such  discrimina- 
tion. As  before  said,  the  State  may  tax  its  own  internal  commerce  ; 
but  that  does  not  give  it  any  right  to  tax  interstate  commerce. 

The  judgment  of  the  Supreme  Court  of  Tennessee  is  reversed,  and 
the  jjlaintiff  in  error  inust  he  discharged} 

1  Mr.  Chief  Justice  Waite  delivered  a  dissenting  opinion  in  which  Mr.  Justice 
Field  and  Mr.  Justice  Gray  concurred. 

The  case  of  Ficklen  v.  Shelby  Couxty  Taxing  District,  145  U.  S.  1  (1892), 
involved  the  validity  of  another  section  of  the  same  State  statute  imposing  a  license 
tax  on  brokers.  Mr.  Chief  Justice  Fuller,  rendering  the  opinion  of  the  Court 
(Mr.  Justice  Harlan  dissenting),  used  the  following  language: 

"  In  the  case  at  bar  the  complainants  were  established  and  did  business  in  the 
Taxing  District  as  general  merchandise  brokers,  and  were  taxed  as  such  under  section 
nine  of  chapter  ninety -six  of  the  Tennessee  laws  of  1881,  wliich  embraced  a  different 
subject  matter  from  section  sixteen  of  that  chapter.  For  the  year  1887  they  paid  the 
$50  tax  cliarged,  gave  bond  to  report  tlieir  gross  commissions  at  the  end  of  the  year, 
and  thereupon  received,  and  throughout  the  entire  year  held,  a  general  and  unre- 
stricted license  to  do  business  as  such  brokers.  Tliey  were  thereby  authorized  to  do 
any  and  all  kinds  of  commission  business  and  became  liable  to  pay  tlie  privilege  tax 
in  question,  which  was  fixed  in  part  and  in  part  graduated  according  to  the  amount  of 
capital  invested  in  the  business,  or  if  no  capital  were  invested,  by  the  amount  of  com- 
missions received.  Although  their  principals  happened  during  1887,  as  to  the  one 
party,  to  be  wholly  non-resident,  and  as  to  tlie  other,  largely  sucli,  this  fact  might 
ha^  e  been  otherwise  then  and  afterwards,  as  tiieir  business  was  not  confined  to  trans- 
actions for  non-residents. 

"  In  the  case  of  Robbins  the  tax  was  held,  in  effect,  not  to  be  a  tax  on  Robbins, 
but  on  his  principals  ;  wliile  here  the  tax  was  clearly  levied  upon  complainants  in 
respect  of  the  general  commission  business  they  conducted,  and  their  property  engaged 
therein,  or  their  profits  realized  therefrom. 

"  No  dou])t  can  be  entertained  of  the  right  of  a  State  legislature  to  tax  trades, 
professions  and  occupations,  in  the  absence  of  inhibition  in  the  State  constitution  in 
that  regard ;  and  wiiere  a  resident  citizen  engages  in  general  business  subject  to  a 
particular  tax  tlie  fact  that  the  business  done  chances  to  consist,  for  the  time  being, 
wholly  or  partially  in  negotiating  sales  between  resident  and  non-resident  merchants, 
of  goods  situated  in  another  State,  does  not  necessarily  involve  the  taxation  of  inter- 
state commerce,  forbidden  by  the  Constitution. 

"We  presume  it  would  not  be  doubted  that  if  the  complainants  had  been  taxed  on 
capital  invested  in  the  business,  such  taxation  would  not  have  been  obnoxious  to  con- 
stitutional objection  ;  but  liecause  they  had  no  capital  inve.'stcd,  the  tax  was  ascer- 
tained by  reference  to  the  amount  of  their  commi.«sions,  which  when  received  were  no 
lef'S  their  property  than  their  capital  would  have  been.  "We  agree  with  the  Supreme 
Court  of  the  State  that  the  complainants  having  taken  out  licenses  under  the  law  in 


324  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

EMERT  V.  MISSOURI. 

156  United  States,  296.     1895. 

This  was  an  information,  filed  July  27,  1889,  before  a  justice  of 
the  peace  in  the  county  of  Montgomery  and  State  of  Missouri,  for 
a  misdemeanor,  by  peddling  goods  without  a  license,  in  violation 
of  a  statute  of  the  State  contained  in  chapter  137,  entitled  "Ped- 
dlers and  their  licenses  "  of  the  Revised  Statutes  of  Missouri  of 
1879. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

From  early  times,  in  England  and  America,  there  have  been  stat- 
utes regulating  the  occupation  of  itinerant  peddlers,  and  requiring 
them  to  obtain  licenses  to  practise  their  trade. 

In  Tomlin's  Law  Dictionary  are  these  definitions :  "  Hawkers. 
Those  deceitful  fellows  who  went  from  place  to  place,  buying  and 
selling  brass,  pewter,  and  other  goods  and  merchandise  which  ought 
to  be  uttered  in  open  market,  were  of  old  so  called ;  and  the  appella- 
tion seems  to  grow  from  their  uncertain  wandering,  like  persons  that 
with  haivks  seek  their  game  where  they  can  find  it.  They  are  men- 
tioned in  Stat.  33  Hen.  VIII.  c.  4."  ^^ Hawkers,  Pedlars,  and  Petty 
Chapmen.  Persons  travelling  from  town  to  town  with  goods  and 
merchandise.  These  were  under  the  control  of  commissioners  for 
licensing  them  for  that  purpose,  under  Stats.  8  &  9  Wm.  Ill,  c.  2.5;  9 
&  10  Wm.  Ill,  c.  25  [9  Wm.  Ill,  c.  27]  ;  29  Geo.  Ill,  c.  26." 

The  act  of  50  Geo.  Ill,  c.  41,  repealed  the  prior  acts,  and  imposed 
a  penalty  on  "  any  hawker,  pedlar,  petty  chapman,  or  any  other 
trading  person  or  persons,  going  from  town  to  town,  or  to  other  men's 
houses,  and  travelling  either  on  foot,  or  with  horse  or  horses,"  and 
exposing  to  sale,  or  selling  goods,  wares  or  merchandise  by  retail. 
Upon  an  information  in  the  Court  of  Exchequer  to  recover  penalties 
under  that  act,  Baron  Graham  said  :  "  The  object  of  the  legislature, 
in  passing  the  act  upon  which  this  information  is  founded,  was  to 
protect,  on  the  one  hand,  fair  traders,  particularly  established  shop- 
keepers, resident  permanently  in  towns  or  other  places,  and  paying 
rent  and  taxes  there  for  local  privileges,  from  the  mischiefs  of  being 

question  to  do  a  general  commission  business,  and  having  given  bond  to  report  their 
commissions  during  the  year,  and  to  pay  the  required  percentage  thereon,  could  not, 
wlien  they  applied  for  similar  licenses  for  the  ensuing  year,  resort  to  the  courts  be- 
cause the  municipal  authorities  refused  to  issue  such  licenses  without  the  payment  of 
the  stipulated  tax.  What  position  they  would  have  occupied  if  they  had  not  under- 
taken to  do  a  general  commission  business,  and  had  taken  out  no  licenses  therefor,  but 
had  simply  transacted  business  for  nou-resident  principals,  is  an  entirely  different 
question,  which  does  not  arise  upon  this  record." 


SECT.  II.  b.  2.]  EMERT    V.    MISSOURI.  325 

undersold  by  itinerant  persons,  to  their  injury;  and,  on  the  other,  to 
guard  the  public  from  the  impositions  practised  by  such  persons  in 
the  course  of  their  dealings  ;  who,  having  no  known  or  fixed  residence, 
carry  on  a  trade  by  means  of  vending  goods  conveyed  from  place  to 
place  by  horse  or  cart."  Attoi-uey  General  v.  Tongue,  (1823)  12 
Price,  51,  GO. 

In  Massachusetts,  both  before  and  after  the  adoption  of  the  Consti- 
tution of  the  United  States,  successive  statutes  imposed  penalties  ou 
hawkers,  peddlers  and  petty  chapmen.  7  Dane  Ab.  72  ;  Stats.  1713-14, 
c.  7;  (1  Prov.  Laws,  720;)  1716-17,  c.  10;  1721-22,  c.  6;  1726-27,  c. 
4 ;  (2  Prov.  Laws,  47,  232,  385; )  1785,  c.  2;  1790,  c.  20;  1820,  c.  45; 
Eev.  Stats.  1836,  c.  35,  §§  7,  8.  The  statute  of  1846,  c.  244,  repealing 
the  earlier  statutes,  imposed  a  penalty  on  "every  hawker,  peddler  or 
petty  chapman,  or  other  person,  going  from  town  to  town,  or  from 
place  to  place,  or  from  dwelling-house  to  dwelling-house  in  the  same 
town,  either  on  foot,  or  with  one  or  more  horses,  or  otherwise  carrying 
for  sale,  or  exposing  to  sale,  any  goods,  wares  or  merchandise,"  (with 
certain  exceptions,)  without  first  obtaining  a  license,  as  therein  pro- 
vided. 

In  a  case  under  that  statute.  Chief  Justice  Shaw  said:  "The  lead- 
ing primary  idea  of  a  hawker  and  peddler  is  that  of  an  itinerant  or 
travelling  trader,  who  carries  goods  about,  in  order  to  sell  them,  and 
who  actually  sells  them  to  purchasers,  in  contradistinction  to  a  trader 
who  has  goods  for  sale  and  sells  them  in  a  fixed  place  of  business. 
Superadded  to  this,  (though  perhaps  not  essential,)  by  a  hawker  is 
generally  understood  one  who  not  only  carries  goods  for  sale,  but 
seeks  for  purchasers,  either  by  outcry,  which  some  lexicographers 
conceive  as  intimated  by  the  derivation  of  the  word,  or  by  attracting 
notice  and  attention  to  them  as  goods  for  sale,  by  an  actual  exhibition 
or  exposure  of  them,  by  placards  or  labels,  or  by  a  conventional  signal, 
like  the  sound  of  a  horn  for  the  sale  of  fish.  But  our  statute  goes 
further,  and  not  only  proscribes  actual  hawkers  and  peddlers,  whose 
employment  is  that  of  travelling  traders,  and  thus  seems  to  refer 
to  a  business  or  habitual  occupation ;  but  it  extends  to  all  persons, 
doing  the  acts  proscribed."  Commonwealths.  Ober,  (1853)  12  Cush. 
493,  495. 

In  that  case,  it  was  objected  that  the  statute  was  repugnant  to  the 
Constitution  of  the  United  States,  because  at  variance  with  the  ex- 
clusive right  of  Congress  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes.  To  which 
Chief  Justice  Shaw  answered :  "  The  law  in  question  interferes  with 
none  of  these."  "We  consider  this  as  wholly  an  internal  commerce, 
which  the  States  have  a  right  to  regulate ;  and,  in  this  respect,  this 
law  stands  on  the  same  footing  with  the  laws  regulating  sales  of  wine 
and  spirits,  sales  at  auction,  and  very  many  others,  which  are  in. 
force  and  constantly  acted  upon."     12  Cush.  497. 

In  Michigan,  a  city  ordinance,  passed  under  authority  of  the  legis- 


326  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

lature,  prohibiting  peddling  without  a  license  from  the  mayor,  was 
held  constitutional ;  and  Chief  Justice  Cooley  said  :  "  That  the  regu- 
lation of  hawkers  and  peddlers  is  important,  if  not  absolutely  essen- 
tial, may  be  taken  as  established  by  the  concurring  practice  of 
civilized  States.  They  are  a  class  of  persons  who  travel  from  place 
to  place  among  strangers,  and  the  business  may  easily  be  made  a  pre- 
tence or  a  convenience  to  those  whose  real  purpose  is  theft  or  fraud. 
The  requirement  of  a  license  gives  opportunity  for  inquiry  into  ante- 
cedents and  character,  and  the  payment  of  a  fee  affords  some  evi- 
dence that  the  business  is  not  a  mere  pretence."  People  v.  Russell, 
(1883)  49  Mich.  617,  619. 

In  the  courts  of  many  other  States,  statutes  imposing  a  penalty  for 
peddling  without  a  license,  all  goods  of  particular  kinds,  and  not  dis- 
criminating against  goods  brought  from  other  States  or  from  foreign 
countries,  have  been  held  not  to  be  repugnant  to  the  Constitution  of 
the  United  States.  Cowles  v.  Brittain,  (1822)  2  Hawks,  204  ;  Wynne 
V.  Wright,  (1834)  1  Dev.  &  Bat.  19;  Tracy  v.  State,  (1829)  3  Mo.  3; 
Morrill  r.  State,  (1875)  38  Wis.  428;  Howe  Machine  Co.  v.  Cage, 
(1876)  9  Baxter,  518  ;  Graffty  v.  Rushville,  (1886)  107  Ind.  502 ;  State 
V.  Richards,  (1889)  32  West  Virginia,  348;  Commonwealth  v.  Gard- 
ner, (1890)  133  Penn.  St.  284. 

The  statute  of  jMissouri,  under  which  the  conviction  in  the  case  at 
bar  was  had,  is  contained  in  a  separate  chapter  of  the  Revised  Stat- 
utes of  the  State,  entitled  "Peddlers  and  their  licenses,"  and  relating 
to  no  other  subject.  By  this  statute,  "whoever  shall  deal  in  the 
selling  of  "  any  goods,  wares  or  merchandise,  (except  books,  charts, 
maps  and  stationery,)  "  by  going  from  place  to  place  to  sell  the  same, 
is  declared  to  be  a  peddler;"  and  is  prohibited  from  dealing  as  a 
peddler  without  a  license.  Rev.  Stat,  of  1879,  §§  6471,  6472.  The 
license  is  required  to  state  how  the  dealing  is  to  be  carried  on, 
whether  on  foot,  or  with  one  or  more  beasts  of  burden,  a  cart  or 
wagon,  or  a  boat  or  vessel ;  and  may  be  obtained  by  any  person  pay- 
ing the  tax  prescribed  according  to  the  manner  in  which  the  business 
is  carried  on.  §§  6473,  6476,  6477.  Any  person  dealing  as  a  peddler, 
without  a  license,  whether  with  a  pack,  a  wagon,  or  a  boat,  is  to 
pay  a  certain  penalty,  which,  in  the  case  of  peddling  in  a  cart  or 
wagon,  is  fifty  dollars.  §  6478.  And  any  peddler,  who  refuses  to 
exhibit  his  license  on  demand  of  a  sheriff,  collector,  constable,  or 
citizen  householder  of  the  county,  is  to  forfeit  the  sum  of  ten  dollars. 
§  6479. 

The  facts  were  agreed,  that  the  Singer  Manufacturing  Company, 
for  more  than  five  years  last  past,  and  on  the  day  in  question,  was  a 
corporation  of  Xew  Jersey  ;  that  the  defendant,  on  and  prior  to  that 
day,  was  in  the  employment  of  that  company,  and  on  that  day,  in 
pursuance  of  that  employment,  and  having  no  peddler's  license,  was 
engaged  in  going  from  place  to  place  in  Montgomery  county  in  the 
State  of  Missouri,  with  a  horse  and  wagon,  soliciting  orders  for  the 


J 


SECT.  11.  b.  2.]  EMERT   V.   MISSOURI.  327 

sale  of  the  company's  sewing  machines,  and  having  with  him  in 
the  wagon  one  of  those  machines,  the  property  of  the  company, 
and  manufactured  by  it  at  its  works  in  New  Jersey,  and  which 
it  had  forwarded  and  delivered  to  him  for  sale  on  its  account ;  and 
that  he  offered  this  machine  for  sale  to  various  persons  at  different 
places,  and  found  a  purchaser,  and  sold  and  delivered  it  to  him. 

The  Supreme  Court  of  the  State,  in  its  opinion,  understood  and 
assumed  the  eifect  of  those  facts  to  be  as  follows  :  "  The  defendant 
was  engaged  in  going  from  place  to  place,  selling'  and  trying  to  sell 
sewing  machines  in  Montgomery  county  in  this  State,  and  had  been 
so  engaged  for  some  years.  He  carried  the  machines  with  him  in  a 
wagon,  and  on  making  a  sale  delivered  those  sold  to  the  purchaser. 
He  was  not  only  soliciting  orders,  but  was  making  sales  and  deliver- 
ing the  propert}'  sold.  These  acts  bring  him  clearly  within  the 
statutory  definition  of  a  peddler ;  and,  having  no  license  from  the 
State,  he  became  liable  to  the  penalties  imposed  by  the  statute,  unless, 
for  any  reason,  he  was  exempt  from  the  operations  of  the  law."  1U3 
Missouri,  247.  It  is  argued  by  one  of  his  counsel  that  this  was  an 
unwarranted  conclusion  from  the  facts  agreed.  But  the  construction 
of  those  facts  does  not  present  a  Federal  question,  except  so  far  as  it 
involves  the  constitutionality  of  the  statute.  Upon  any  construction, 
it  is  clear  that  the  defendant  was  engaged  in  going  from  place  to 
place  within  the  State,  without  a  license,  soliciting  orders  for  the 
sale  of  sewing  machines,  having  with  him  in  the  wagon  at  least  one 
of  those  machines,  and  offering  that  machine  for  sale  to  various 
persons  at  different  places,  and  that  he  linally  sold  it,  and  delivered 
it  to  the  purchaser.  The  conclusion  that  such  dealings  made  him  a 
peddler,  within  the  meaning  of  the  statute  of  the  State  and  of  the 
information  on  which  he  was  convicted,  presents  of  itself  no  consti- 
tutional question. 

The  facts  appear  to  have  been  agreed  for  the  purpose  of  present- 
ing the  question  whether  the  statute  was  repugnant  to  the  Consti- 
tution of  the  United  States.  This  was  the  only  question  discussed 
in  the  opinion  of  the  Supreme  Court  of  Missouri.  And  it  is  the  only 
one  of  which  this  court  has  jurisdiction  upon  this  writ  of  error. 

The  defendant's  occupation  was  offering  for  sale  and  selling  sewing 
machines,  by  going  from  place  to  place  in  the  State  of  IMissouri,  in  a 
wagon,  without  a  license.  There  is  nothing  in  the  case  to  show  that 
he  ever  offered  for  sale  any  machine  that  he  did  not  have  with  him 
at  the  time.  His  dealings  were  neither  accompanied  nor  followed 
by  any  transfer  of  goods,  or  of  any  order  for  their  transfer,  from 
one  State  to  another ;  and  were  neither  interstate  commerce  in  them- 
selves, nor  were  they  in  any  way  directly  connected  with  such 
commerce.  The  only  business  or  commerce  in  which  he  was  engaged 
was  internal  and  domestic;  and,  so  far  as  appears,  the  only  goods 
in  which  he  was  dealing  had  become  part  of  the  mass  of  property 
within   the    State.     Both  the  occupation  and  the  goods,  therefore, 


328  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

were  subject  to  the  taxing  power,  and  to  the  police  power,  of  the 
State. 

The  statute  in  question  is  not  part  of  a  revenue  Law.  It  makes  no 
discrimination  between  residents  or  products  of  Missouri  and  tliose 
of  other  States ;  and  manifests  no  intention  to  interfere,  in  any  way, 
with  interstate  commerce.  Its  object,  in  requiring  peddlers  to  take 
out  and  pay  for  licenses,  and  to  exliibit  their  licenses,  on  demand,  to 
any  peace  olficer,  or  to  any  citizen  householder  of  the  county,  appears  to 
liave  been  to  protect  the  citizens  of  the  State  against  the  cheats  and 
frauds,  or  even  thefts,  which,  as  the  experience  of  ages  has  shown,  are 
likely  to  attend  itinerant  and  irresponsible  peddling  from  place  to 
place  and  from  door  to  door. 

If  this  question  were  now  brought  before  this  court  for  the  first 
time,  there  could  hardly  be  a  doubt  of  the  validity  of  .the  statute. 
But  it  is  not  a  new  question  in  this  court. 

[Many  cases  are  cited  and  commented  upon,  among  them  Kobbins 
V.  Shelby  County  Taxing  District,  120  U.  S.  489,  supra,  p.  317,  from 
which  a  passage  is  quoted  distinguishing  that  case  from  one  such 
as  this.] 

The  necessary  conclusion,  upon  authority,  as  well  as  upon  principle, 
is  that  the  statute  of  Missouri,  now  in  question,  is  nowise  repugnant 
to  the  power  of  Congress  to  regulate  commerce  among  the  several 
States,  but  is  a  valid  exercise  of  the  power  of  the  State  over  pei-sons 
and  business  within  its  borders.  Judgment  affirmed. 


^  CRUTCHER  V.  KENTUCKY. 

Ill  United  States,  47.     1891. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  case  arose  at  Frankfort,  Franklin  C(nuiCy,  Kentucky,  upon 
an  indictment  found  against  Crutcher,  tlie  plaintiff  in  error,  in  the 
Franklin  Circuit  Court,  for  acting  and  doing  business  as  agent  for 
the  United  States  Express  Company,  alleged  to  be  an  express  com- 
pany not  incorporated  by  the  laws  of  Kentucky,  but  trading  and 
doing  business  as  a  common  carrier,  by  express,  of  goods,  merchan- 
dise, money,  and  other  things  of  value  in  and  througli  the  county 
and  State  aforesaid,  without  having  any  license  so  to  do  either  for 
himself  or  the  company  [as  required  by  Act  of  March  2,  I860]. 
Crutcher,  being  arrested  and  brought  before  the  court,  tendered  a 
special  plea  setting  forth  the  facts  with  regard  to  his  employment 
and  the  business  of  the  company,  and  amongst  other  things  that  said 
company  was  a  joint  stock  company,  incorporated  and  having  its 
principal  office  in  the  city  of  New  York,  in  the  State  of  New  York, 
which  plea  was  refused.     He   then  pleaded  "not   guilty,"  and  the 


SECT.  II.  b.  2.]        CRUTCHER  V.   KENTUCKY.  S29 

parties  filed  an  agreed  statement  of  facts ;  and,  by  consent,  tlie 
matters  of  law  and  fact  were  submitted  to  the  court,  and  the  def^-nd- 
ant  was  found  guilty  and  sentenced  to  pay  a  fine  of  one  hundred 
dollars  and  the  costs  of  prosecution. 

We  regret  that  we  are  unable  to  concur  with  the  learned  Court  o^ 
Appeals  of   Kentucky  in    its   views   on   this  subject.     The  law   oV     p  .     ^ 
Kentucky,  which  is  brought  in  question   by  the  case,  requires  from        ^ 
the  agent  of  every  express  company  not  incorporated  by  the  laws  of 
Kentucky  a  license  from  the  auditor  of  public  accounts,  before  he  ^■ 

can  carry  ou  any  business  for  said  company  in  the  State.     This,  of  '" 

course,  embraces  interstate  business  as  well  as  business  confined  ; 
wholly  within  the  State.  It  is  a  prohibition  against  the  carrying  on 
of  such  business  without  a  compliance  with  the  State  law.  And  not 
only  is  a  license  required  to  be  obtained  by  the  agent,  but  a  state- 
ment must  be  made  and  filed  in  the  auditor's  office  showing  that  thej 
company  is  possessed  of  an  actual  capital  of  $150,000,  either  in  casiy 
or  in  safe  investments,  exclusive  of  stock  notes.  If  the  subject  was 
one  which  appertained  to  the  jurisdiction  of  the  State  legislature,  it 
may  be  that  the  requirements  and  conditions  of  doing  business  within 
the  State  would  be  promotive  of  the  public  good.  It  is  clear,  how- 
ever, that  it  would  be  a  regulation  of  interstate  commerce  in  its 
application  to  corporations  or  associations  engaged  in  that  business  ; 
and  that  is  a  subject  which  belongs  to  the  jurisdiction  of  the  national 
and  not  the  State  legislature.  Congress  would  undoubtedly  have  the 
right  to  exact  from  associations  of  that  kind  any  guarantees  it 
might  deem  necessary  for  the  public  security,  and  for  the  faithful 
transaction  of  business  ;  and  as  it  is  within  the  province  of  Congress, 
it  is  to  be  presumed  that  Congress  has  done,  or  will  do,  all  that  is 
necessary  and  proper  in  that  regard.  Besides,  it  is  not  to  be  i>re- 
sumed  that  the  State  of  its  origin  has  neglected  to  require  from  any 
such  corporation  proper  guarantees  as  to  capital  and  other  securities 
necessary  for  the  public  safety.  If  a  partnership  firm  of  individuals 
should  undertake  to  carry  on  the  business  of  interstate  commerce 
between  Kentucky  and  other  States,  it  would  not  be  within  the 
province  of  the  State  legislature  to  exact  conditions  on  which  they 
should  carry  ou  their  business,  nor  to  require  them  to  take  out  a 
license  therefor.  To  carry  on  interstate  commerce  is  not  a  franchise_^ 
or  a  privilege  granted  by  the  State ;  it  is  a  right  which  every  citizen 
of  the  United  States  is  entitled  to  exercise  under  the  Constitution 
and  laws  of  the  United  States ;  and  the  accession  of  mere  corporate 
facilities,  as  a  matter  of  convenience  in  carrying  on  their  business,  \ 
cannot  have  the  effect  of  depriving  them  of  such  right,  unless  Con- 
gress should  see  fit  to  interpose  some  contrary  regulation  on  the 
subject. 

It  has  frequently  been  laid  down  by  this  court  that  the  power  of  ; 
Congress  over  interstate  commerce  is  as  absolute  as  it  is  over  foreign  I 


330  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

(commerce.     Would  any  one  pretend  that  a  State  legislature  could 
I  prohibit  a  foreign  corporation,  —  an  English  or  a  French  transporta- 
/  tion   company,  for   example,  —  from   coming   into   its   borders   and 
/  landing  goods  and  passengers  at  its  wharves,  and  soliciting  goods 
/  and  passengers  for  a  return  voyage,  without  first  obtaining  a  license 
from  some  State  officer,  and  filing  a  sworn  statement  as  to  the  amount 
/of  its  capital   stock    paid  in?     And   why  not?     Evidently  because 
I  the  matter  is  not  within  the  province  of  State  legislation,  but  within 
iXthat   of   national   legislation.     Inman   Steamship  Co.  v.  Tinker,  94 
U.  S.  238.     The  prerogative,  the  responsibility  and  the  duty  of  pro- 
viding for  the  security  of  the  citizens  and  the  people  of  the  United 
States  in  relation  to  foreign  corporate  bodies,  or  foreign  individuals 
with  whom  they  may  have  relations  of  foreign  commerce,  belong  to 
the  government  of  the  United  States,  and  not  to  the  governments 
of  the  several  States ;  and  confidence  in  that  regard  may  be  reposed 
in  the  national  legislature  without  any  anxiety  or  apprehension  aris- 
ing from  the  fact  that  the  subject  matter  is  not  within  the  province 
or  jurisdiction   of   the    State  legislatures.     And  the  same  thing  is 
exactly  true  with  regard  to  interstate  commerce  as  it  is  with  regard 
to  foreign  commerce.     No  difference  is  perceivable  between  the  two. 
Telegraph   Co.  v.  Texas,    105  U.   S.  460;    Gloucester  Ferry  Co.  v. 
Pennsylvania,    114   U.  S.   196,  205,    211 ;    Phila.    Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326,  342;  ^IcCall  w.  California,  136  U.  S. 
104,  110;   Norfolk   &  Western    Kailroad   Co.    v.  Pennsylvania,  136 
U.  S.  114,  118.     As  was  said  by  Mr.  Justice  Lamar,  in  the  case  last 
cited,  "  It  is  well  settled  by  numerous  decisions  of  this  courts Jdiai-a. 
State  cannot,  under  the  guise  of  a  license  tax,  exclude  from  its  juris- 
diction a  foreign   corporation    engaged  in    interstate    commerce,  or 
impose  any  burdens  upon  such  commerce  within  its  limits." 

We  have  repeatedly  decided  that  a  State  law  is  unconstitutional 
and  void  which  requires  a  party  to  take  out  a  license  for  carrying 
on  interstate  commerce,  no  matter  how  specious  the  pretext  may  be 
for  imposing  it.  Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S. 
34  ;  Eobbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489 ; 
Leloup  V.  Mobile,  127  U.  S.  640 ;  Asher  v.  Texas,  128  U.  S.  129 ; 
Stoutenburgh  v.  Hennick,  129  U.  S.  141 ;  McCall  v.  California,  136 
U.  S.  104 ;  Norfolk  &  Western  Railroad  Co.  v.  Pennsylvania,  136 
U.  S.  114. 

As  a  summation  of  the  whole  matter  it  was  aptly  said  by  the 
present  Chief  Justice  in  Lyng  v.  Michigan,  135  U.  S.  161,  166  :  "  We 

(have  repeatedly  held  that  no  State  has  the  riglit^to  lay  a  tax^on 
interstate  commerce  in  any  form,  whether  by  way  of^dutTesTaid  on 
the    transportation    of   the    subjects    of   that  commerce,    or   on   the 
*^\^   receipts  derived  from  that  transportation,  or  on  the  occupation  or 
j   business  of  carrying  it  on,  for  the  reason  that  taxation  is  a.  burden 
'    on  that  commerce,  and  amounts  to  a  regulation  of  it,  which  belongs 
solely  to  Congress." 


SECT.  II.  b.  2.]  CRUTCHER   V.    KENTUCKY.  831 

We  do  not  thiuk  that  the  difficulty  is  at  all  obviated  by  the  fact 
that  the  express  company,  as  incidental  to  its  main  business,  (which 
is  to  carry  goods  between  different  States,)  does  also  some  local 
business  by  carrying  goods  from  one  point  to  another  within  the 
State  of  Kentucky.  This  is,  probably,  quite  as  much  for  the  ac- 
commodation of  the  people  of  that  State  as  for  the  advantage  of  the 
company.  But  whether  so  or  not,  ic  does  not  obviate  the  objection 
that  the  regulations  as  to  license  and  capital  stock  are  imposed  as 
conditions  on  the  company's  carrying  on  the  business  of  interstate 
commerce,  which  was  manifestly  the  principal  object  of  its  organiza- 
tion. These  regulations  are  clearly  a  burden  and  a  restriction 
upon  that  commerce.  Whether  intended  as  such  or  not  they  operate 
as  such.  But  taxes  or  license  fees  in  good  faith  imposed  exclusively^ 
on  express  business  carried  on  wholly  within  the  State  would  be  open^ 
to  no  such  objection. 

The  case  is  entirely  different  from  that  of  foreign  corporations  \      ^-^^ 
seeking  to  do  a  business  which  does  not  belong  to  the  regulating    y^ 
power  of  Congress.     The  insurance  business,  for  example,  cannot  be  1    ?^ 
carried  on  in  a  State  by  a  foreign  corporation  without  complying  \     ;J[c> 
with  all  the  conditions  imposed  by  the  legislation  of  that  State.     So  • 
with  regard  to  manufacturing  corporations,  and  all  other  corpora-  j 
tions  whose  business  is  of  a  local  and  domestic  nature,  which  would  ) 
include  express  companies  whose  business  is  confined  to  points  and  ' 
places  wholly  within  the  State.     The  cases  to  this  effect  are  numer- 
ous.    Bank  of  Augusta  v.  Earle,  1.3  Pet.  519;  Paul  v.  Virginia,  8 
Wall.  168 ;  Liverpool  Insurance  Company  v.  Massachusetts,  10  Wall. 
566 ;  Cooper  Manufacturing  Company  v.  Ferguson,  113  U.  S.  727 ;  | 

Phila.  Fire  Association  v.  New  York,  119  U.  S.  110. 

But  the  main  argument  in  support  of  the  decision   of  the  Court  ' 

of  Appeals  is  that   the  act  in  question  is  essentially  a  regulation  ; 

made  in  the  fair  exercise  of  the  police  power  of  the  State.  But  it 
does  not  follow  that  everything  which  the  legislature  of  a  State  may  i 

deem  essential  for  the  good  order  of  society  and  the  well  being  of  \ 

its  citizens  can  be  set  up  against  the  exclusive  power  of  Congress  to 
regulate  the  operations  of  foreign  and  interstate  commerce.  We 
have  lately  expressly  decided  in  the  case  of  Leisy  v.  Hardin,  135  \ 

U.   S.    100,  that  a  State  law   prohibiting  the   sale  of   intoxicating  \ 

liquors  is  void  when  it  comes  in  conflict  with  the  express  or  im^ilied  j 

regulation  of  interstate  commerce   by  Congress,  declaring  that  the  ' 

traffic  in  such  liquors  as  articles  of  merchandise  between  the  States  ] 

shall  be  free.     There  are,  undoubtedly,  many  things  which  in  their  j 

nature  are  so  deleterious  or  injurious  to  the  lives  and  health  of  the 
people  as  to  lose  all  benefit  of  protection  as  articles  or  things  of 
commerce,  or  to  be  able  to  claim  it  only  in  a  modified  way.  Such 
things  are  properl}'  subject  to  the  police  power  of  the  State.  Chief 
Justice  i\Iarshall  in  Brown  v.  Maryland,  12  Wheat.  419,  443,  instances  i 

gunpowder  as  clearly  subject  to  the  exercise  of  the  police  power  in/ 


332  THE   LEGISLATIVE   DEPARTMENT.  [CRAP.  IV. 

re^^ard  to  its  removal  and  the  place  of  its  storage ;  and  he  adds  : 
''  The  removal  or  destruction  of  infectious  or  unsound  articles  is, 
'undoubtedly,  an  exercise  of  that  power,  and  forms  an  express  ex- 
'  ception  to  the  prohibition  we  are  considering.  Indeed,  the  laws  of 
the  United  States  expressly  sanction  the  health  laws  of  a  State." 
Chief  Justice  Taney  in  the  License  Cases,  5  How.  504,  576,  took  the 
same  distinction  when  he  said:  "It  has,  indeed,  been  suggested, 
that,  if  a  State  deems  the  traffic  in  ardent  spirits  to  be  injurious  to 
its  citizens  and  calculated  to  introduce  immorality,  vice  and  pauper- 
ism  into  the  State,  it  may  constitutionally  refuse  to  permit  its 
importation,  notwithstanding  the  laws  of  Congress  ;  and  that  a  State 
may  do  this  upon  the  same  principles  that  it  may  resist  and  prevent 
the  introduction  of  disease,  pestilence  and  pauperism  from  abroad. 
But  it  must  be  remembered  that  disease,  pestilence  and  pauperism 
are  not  subjects  of  commerce,  although  sometimes  among  its  attend- 
ant evils.  They  are  not  things  to  be  regulated  and  trafficked  in, 
but  to  be  prevented,  as  tar  as  human  foresight  or  human  means  can 
guard  against  them.  But  spirits  and  distilled  liquors  are  universally 
admitted  to  be  subjects  of  ownership  and  property,  and  are  therefore 
subjects  of  exchange,  barter  and  traffic,  like  any  other  commodity  in 
which  a  right  of  property  exists." 

But  whilst  it  is  only  such  things  as  are  clearly  injurious  to  the 
lives  and  health  of  the  people  that  are  placed  beyond  the  protection 
of  the  commercial  power  of  Congress,  yet  when  tliat  power,  or  some 
other  exclusive  power  of  the  Federal  government,  is  not  in  question, 
the  police  power  of  the  State  extends  to  almost  everything  within 
its  borders  ;  to  the  suppression  of  nuisances  ;  to  the  prohibition  of 
manufactures  deemed  injurious  to  the  public  health  ;  to  the  prohibi- 
tion of  intoxicating  drinks,  their  manufacture  or  sale ;  to  the  prolii- 
bition  of  lotteries,  gambling,  horse-racing  or  anything  else  that  the 
legislature  may  deem  opposed  to  the  public  welfare.  Bartemeyer  v. 
Iowa,  18  Wall.  129;  Beer  Company  v.  Massachusetts,  97  U.  S.  25; 
Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  C59 ;  Stone  v.  Mississippi, 
101  U.  S.  814;  Foster  v.  Kansas,  112  U.  S.  201;  Mugler  v.  Kansas, 
123  U.  S.  623;  Powell  v.  Pennsylvania,  127  U.  S.  678;  Kidd  v. 
Pearson,  128  U.  S.  1 ;  Kimmish  v.  Ball,  129  U.  S.  217. 

It  is  also  within  the  undoubted  province  of  the  State  legislature  to 
make  regulations  with  regard  to  the  speed  of  railroad  trains  in  the 
neighborhood  of  cities  and  towns;  with  regard  to  the  precautions  to 
be  taken  in  the  approach  of  such  trains  to  bridges,  tunnels,  deep 
cuts  and  sharp  curves;  and,  generally,  with  regard  to  all  operations 
in  which  the  lives  and  health  of  the  people  may  be  endangered, 
even  though  such  regulations  affect  to  some  extent  the  operations 
of  interstate  commerce.  Such  regulations  are  eminently  local  in 
their  character,  and,  iu  the  absence  of  congressional  regulations  over 
the  same  subject,  are  free  from  all  constitutional  objections,  and 
unquestionably  valid. 


SECT.  II. 


b.  2.]  BROWN   V.    HOUSTON.  333 


In  view  of  the  foregoing  considerations,  and  of  the  well-considered 
distinctions  that  have  been  drawn  between  those  things  that  are,  and 
those  things  that  are  not,  within  the  scope  of  commercial  regulation 
and  protection,  it  is  not  difficult  to  arrive  at  a  satisfactory  conclusion 
on  the  question  now  presented  to  us.  The  character  of  police  reg- 
ulation, claimed  for  the  requirements  of  the  statute  in  question,  is 
certainly  not  such  as  to  give  them  a  controlling  force  over  the  regu- 
lations of  interstate  commerce  which  may  have  been  expressly  or  im- 
pliedly adopted  by  Congress,  or  such  as  to  exempt  them  from  nullity 
when  repugnant  to  the  exclusive  power  given  to  Congress  in  relation 
to  that  commerce.  This  is  abundantly  shown  by  the  decisions  to 
which  we  have  already  referred,  which  are  clear  to  the  effect  that 
neither  licenses  nor  indirect  taxation  of  any  kind,  nor  any  system  of 
State  regulation,  can  be  imposed  upon  interstate  any  more  than  upon 
foreign  commerce  ;  and  that  all  acts  of  legislation  producing  any 
such  result  are,  to  that  extent,  unconstitutional  and  void.  And  as, 
in  our  judgment,  the  law  of  Kentucky  now  under  consideration,  as 
applied  to  the  case  of  the  plaintiff  in  error,  is  open  to  this  objection, 
it  necessarily  follows  that  the  judgment  of  the  Court  of  Appeals 
mu-st  be  reversed  .... 

The  Chief  Justice  and  Mr.  Justice  Gray  dissented.        3  j-    -. 


BROWN   V.   HOUSTON. 

114  United  States,  622.     1885. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  the  plaintiffs  in  error  in  the  Civil  Dis- 
trict Court  for  the  Parish  of  Orleans,  State  of  Louisiana,  30th  De- 
cember, 1880,  to  enjoin  the  defendant,  Houston,  from  seizing  and 
selling  a  certain  lot  of  coal  belonging  to  the  plaintiffs,  situated  in 
New  Orleans.  They  alleged  in  their  petition  that  they  were  resi- 
dents and  did  business  in  Pittsburg,  State  of  Pennsylvania;  that 
Houston,  State  tax  collector  of  the  upper  district  of  the  Parish  of 
Orleans,  had  officially  notified  Brown  &  Jones,  the  agents  of  the 
plaintiffs  in  New  Orleans,  that  they  (Brown  &  Jones)  were  indebted 
to  the  State  of  Louisiana  in  the  sum  of  $352.80,  State  tax  for  the 
year  1880  upon  a  certain  lot  of  Pittsburg  coal,  assessed  as  their  prop- 
erty, and  valued  at  $58,800;  that  they  (Brown  &  Jones)  were  delin- 
quents for  said  tax,  and  that  he,  said  tax  collector,  was  about  to 
seize,  advertise  and  sell  said  coal  to  pay  said  tax,  as  would  appear 
by  a  copy  of  the  notice  annexed  to  the  petition.  The  plaintiffs 
alleged  that  they  were  not  indebted  to  the  State  of  Louisiana  for  said 
tax;°that  they  were  the  sole  owners  of  the  coal,  and  were  not  liable 


334  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

for  any  tax  thereon,  having  paid  all  taxes  legally  due  for  the  year 
1880  on  said  coal  in  Pennsylvania;  and  that  the  said  coal  was  simply 
under  the  care  of  Brown  &  Jones  as  the  agents  of  the  plaintiffs  in 
New  Orleans,  for  sale.  They  further  alleged  that  said  coal  was 
mined  in  Pennsylvania,  and  was  exported  from  said  State  and  im- 
ported into  the  State  of  Louisiana  as  their  property,  and  was  then 
(at  the  time  of  the  petition),  and  had  always  remained,  in  its  orig- 
inal condition,  and  never  had  been  or  become  mixed  or  incorporated 
with  other  property  in  the  State  of  Louisiana.  That  when  said 
assessment  was  made,  the  said  coal  was  afloat  in  the  Mississippi 
Eiver  in  the  Parish  of  Orleans,  in  the  original  condition  in  which  it 
was  exported  from  Pennsylvania,  and  the  agents,  Brown  &  Jones, 
notified  the  board  of  assessors  of  the  parish  that  the  coal  did  not 
belong  to  them,  but  to  the  plaintiffs,  and  was  held  as  before  stated, 
and  was  not  subject  to  taxation,  and  protested  against  the  assess^ 
ment  for  that  purpose.  The  plaintiffs  averred  that  the  assessment 
of  the  tax  and  any  attempt  to  collect  the  same  were  illegal  and 
oppressive,  and  contrary  to  the  Constitution  of  the  United  States, 
article  1,  section  8,  paragraphs  1  and  3,  and  section  10,  paragraph 
2;  they  therefore  prayed  an  injunction  to  prevent  the  seizure  and  sale 
of  the  coal,  which,  upon  giving  the  requisite  bond,  was  granted. 

The  defendant  answered  with  a  general  denial,  but  admitting 
the  assessment  of  the  tax  and  the  intention  to  sell  the  property  for 
payment  thereof. 

In  approaching  the  consideration  of  the  case  we  will  first  take  up 
the  last  objection  raised  by  the  plaintiff  in  error,  namely,  that  the 
tax  was  a  duty  on  imports  and  exports. 

It  was  decided  by  this  court  in  the  case  of  Woodruff  v.  Parham,  8 
Wall.  123,  that  the  term  "imports,"  as  used  in  that  clause  of  the 
Constitution  which  declares  that  "no  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties  on  imports  or  exports," 
does  not  refer  to  articles  carried  from  one  State  into  another,  but 
only  to  articles  imported  from  foreign  countries  into  the  United 
States.  In  that  case  the  City  of  Mobile  had  by  ordinance,  passed  in 
pursuance  of  its  charter,  authorized  the  collection  of  a  tax  on  real 
and  personal  estate,  sales  at  auction,  and  sales  of  merchandise,  capi- 
tal employed  in  business  and  income  within  the  city.  Woodruff 
and  others  were  auctioneers,  and  were  taxed  under  this  ordinance 
for  sales  at  auction  made  by  them,  including  sales  of  goods,  the 
product  of  other  States  than  Alabama,  received  by  them  as  con- 
signees and  agents,  and  sold  in  the  original  and  unbroken  packages; 
but  as  the  ordinance  made  no  discrimination  between  sales  at  auc- 
tion of  goods  produced  in  Alabama  and  goods  produced  in  other 
States,  the  court  held  that  the  tax  was  not  unconstitutional.  A  con* 
trary  result  must  have  been  reached  under  the  ruling  in  Brown  v. 


SECT.  II.  b.  2.]  BROWN   V.    HOUSTON.  335 

Maryland,  12  Wheat.  419,  419,  if  the  constitutional  prohibition  re- 
ferred to  had  been  held  to  include  imports  from  other  States  as  well 
as  imports  from  foreign  countries ;  for,  at  the  time  the  tax  was  laid, 
the  condition  of  the  goods,  in  reference  to  their  introduction  into 
the  State,  was  precisely  the  same  in  one  case  as  in  the  other.  This 
court,  however,  after  an  elaborate  examination  of  the  question, 
held  that  the  terms  "imports"  and  "exports"  in  the  clause  under 
consideration  had  reference  to  goods  brought  from  or  carried  to  for- 
eign countries  alone,  and  not  to  goods  transported  from  one  State  to 
anotlier. 

It  is  unnecessary,  therefore,  to  consider  further  the  question  raised 
by  the  plaintiffs  in  error  under  their  third  assignment  of  errors  so 
far  forth,  as  it  is  based  on  the  assumption  that  the  tax  complained  of 
was  an  impost  or  duty  on  imports.  The  other  assumption  made 
under  that  assignment,  that  some  of  the  coal  was  afterwards  ex- 
ported, and  that  the  tax  complained  of  was  therefore  jn'o  tanto  a  duty 
on  exports,  is  equally  untenable.  When  the  petition  was  filed  the 
coal  was  lying  in  New  Orleans,  in  the  hands  of  Brown  &  Jones,  for 
sale.  The  petition  states  this  in  so  many  words,  and  Rootes  testifies 
the  same  thing,  and  adds  that  it  was  to  be  sold  by  the  flat-boat  load. 
He  also  adds  that  at  the  time  of  his  examination  more  than  half  of 
it  had  been  exported  to  foreign  countries;  but  he  probably  means 
that  it  had  been  sold  to  steamers  sailing  to  foreign  ports  for  use  on 
the  same,  and  had  only  been  exported  in  that  way.  The  complain- 
ants were  not  exporters;  they  did  not  hold  the  coal  at  New  Orleans 
for  exportation,  but  for  sale  there.  Being  in  New  Orleans,  and  held 
there  on  sale,  without  reference  to  the  destination  or  use  which  the 
purchasers  might  wish  to  make  of  it,  it  was  taxed  in  the  hands  of 
the  owners  (or  their  agents)  like  all  other  property  in  the  city,  six 
mills  on  the  dollar.  If  after  this,  and  after  being  sold,  the  pur- 
chaser thought  proper  to  put  it  on  board  of  a  steamer  bound  to  foreign 
parts,  that  did  not  alter  the  character  of  the  taxation  so  as  to  convert 
it  from  a  general  tax  to  a  duty  on  exports.  When  taxed  it  was  not 
held  with  the  intent  or  for  the  purpose  of  exportation,  but  with  the 
intent  and  for  the  purpose  of  sale  there,  in  New  Orleans.  A  duty 
on  exports  must  either  be  a  duty  levied  on  goods  as  a  condition,  or 
by  reason  of  their  exportation,  or,  at  least,  a  direct  tax  or  duty  en 
goods  which  are  intended  for  exportation.  Whether  the  last  would 
be  a  duty  on  exports,  it  is  not  necessary  to  determine.  But  cer- 
tainly, where  a  general  tax  is  laid  on  all  property  alike,  it  cannot  be 
construed  as  a  duty  on  exports  when  falling  upon  goods  not  then 
intended  for  exportation,  though  they  should  happen  to  be  exported 
afterwards.  This  is  the  most  that  can*l)e  said  of  the  goods  in  ques- 
tion, and  we  are  therefore  of  opinion  that  the  tax  was  not  a  duty  on 
exports  any  more  than  it  was  a  duty  on  imports,  within  the  meaning 
of  those  terms  in  the  clause  under  consideration. 

But  in  holding,  with  the  decision  in  Woodruff  v.  Parham,  that 


336  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

goods  carried  from  one  State  to  another  are  not  imports  or  exports 
within  the  meaning  of  the  clause  which  prohibits  a  State  from  lay- 
ing any  impost  or  duty  on  imports  or  exports,  we  do  not  mean  to 
be^  understood  as  holding  that  a  State  may  levy  import  or  export 
duties  on  goods  imported  from  or  exported  to  another  State.  We 
only  mean  to  say  that  the  clause  in  question  does  not  prohibit  it. 
Whether  the  laying  of  such  duties  by  a  State  would  not  violate  some 
other  provision  of  the  Constitution,  that,  for  example,  which  gives 
to  Congress  the  power  to  regulate  commerce  with  foreign  nations, 
among  the  several  States  and  with  the  Indian  tribes,  is  a  different 
question.  This  brings  us  to  the  consideration  of  the  second  assign- 
ment of  error,  which  is  founded  on  the  clause  referred  to. 

The  power  to  regulate  commerce  among  the  several  States  is 
granted  to  Congress  in  terms  as  absolute  as  is  the  power  to  regulate 
commerce  with  foreign  nations.  If  not  in  all  respects  an  exclusive 
power;  if,  in  the  absence  of  Congressional  action,  the  States  may 
continue  to  regulate  matters  of  local  interest  only  incidentally  affect- 
ing foreign  and  interstate  commerce,  such  as  pilots,  wharves,  har- 
bors, roads,  bridges,  tolls,  freights,  etc.,  still,  according  to  the  rule 
laid  down  in  Cooley  v.  Board  of  Wardens  of  Philadelphia,  12  How. 
299,  319,  the  power  of  Congress  is  exclusive  wherever  the  matter  is 
national  in  its  character  or  admits  of  one  uniform  system  or  plan 
of  regulation;  and  is  certainly  so  far  exclusive  that  no  State  has 
power  to  make  any  law  or  regulation  which  will  affect  the  free  and 
unrestrained  intercourse  and  trade  between  the  States,  as  Congress 
has  left  it,  or  which  will  impose  any  discriminating  burden  or  tax 
upon  the  citizens  or  products  of  other  States,  coming  or  brought 
within  its  jurisdiction.  All  laws  and  regulations  are  restrictive  of 
natural  freedom  to  some  extent,  and  where  no  regulation  is  imposed 
by  the  government  which  has  the  exclusive  power  to  regulate,  it  is 
an  indication  of  its  will  that  the  matter  shall  be  left  free.  So  long 
as  Congress  does  not  pass  any  law  to  regulate  commerce  among  the 
several  States,  it  thereby  indicates  its  will  that  that  commerce  shall 
be  free  and  untrammelled ;  and  any  regulation  of  the  subject  by  the 
States  is  repugnant  to  such  freedom.  ...  In  short,  it  may  be  laid 
down  as  the  settled  doctrine  of  this  court,  at  this  day,  that  a  State 
can  no  more  regulate  or  impede  commerce  among  the  several  States 
than -it  can  regulate  or  impede  commerce  with  foreign  nations. 

This  being  the  recognized  law,  the  question  then  arises  whether 
the  assessment  of  the  tax  in  question  amounted  to  any  interference 
with,  or  restriction  upon  the  free  introduction  of  the  plaintiffs'  coal 
from  the  State  of  Pennsylvania  into  the  State  of  Louisiana,  and  the 
free  disposal  of  the  same  in  commerce  in  the  latter  State;  in  other 
words,  whether  the  tax  amounted  to  a  regulation  of,  or  restriction 
upon,  commerce  among  the  States;  or  only  to  an  exercise  of  local 
administration  under  the  general  taxing  power,  which,  though  it 
may  incidentally  affect  the  subjects  of  commerce,  is  entirely  within 


SECT.  II.  b.  2.]  BROWN    V.    HOUSTON.  337 

the  power  of  the  State  until  Congress  shall  see  fit  to  interfere  and 
luake  express  regulations  on  the  subject. 

As  to  the  character  and  mode  of  the  assessment,  little  need  be 
added  to  what  has  already  been  said.     It  was  not  a  tax   imposed 
upon  the  coal  as  a  foreign  product,  or  as  the  product  of  another  State 
than  Louisiana,  nor  a  tax  imposed  by  reason  of  the  coal  being  im- 
ported or  brought  into  Louisiana,  nor  a  tax  imposed  whilst  it  was 
in  a  state  of  transit  through  that  State  to  some  other  place  of  destin- 
ation.    It  was  imposed  after  the  coal  had  arrived  at  its  destination 
and  was  put  up  for  sale.     The  coal  had  come  to  its  place  of  rest, 
for  final  disposal  or  use,  and  was  a  commodity  in  the  market  of  New 
Orleans.     It   might   continue   in  that  condition  for  a  year  or  two 
years,  or  only  for  a  day.     It  had  become  a  part  of  the  general  mass 
of  property  in  the  State,  and  as  such  it  was  taxed  for  the  current 
year  (1880),  as  all  other  property  in  the  City  of  New  Orleans  was 
taxed.     Under  the  law,  it  could  not  be  taxed  again  until  the  follow- 
ing year.     It  was  subjected  to  no  discrimination  in  favor  of  goods 
which  were  the  product  of  Louisiana,  or  goods  which  were  the  prop- 
erty of  citizens  of  Louisiana.     It  was  treated  in  exactly  the  same 
maimer  as  such  goods  were  treated.       It  cannot  be  seriously  con- 
tended, at  least  in  the  absence  of  any  congressional  legislation  to 
the  contrary,  that  all  goods  which  are  the  product  of  other  States 
are  to  be  free  from  taxation  in  the  State  to  which  they  may  be  car- 
ried  for  use  or  sale.     Take  the  City  of  New  York,  for  example. 
When  the  assessor  of  taxes  goes  his  round,  must  he  omit  from  his 
list  of  taxables  all  goods  which  have  come  into  the  city  from  the 
factories  of   New  England  and  New  Jersey,  or  from  the  pastures 
and  grainfields  of  the  West  ?     If  he  must,  what  will  be  left  for  tax- 
ation ?     And  how  is  he  to  distinguish  between  those  goods  which  are 
taxable  and  those  which  are  not  ?     With  the  exception  of  goods  im- 
ported from  foreign  countries,  still  in  the  original   packages,  and 
goods  in  transit  to  some  other  place,  why  may  he  not  assess  all  prop- 
erty alike  that  may  be  found  in  the  city,  being  there  for  the  purpose 
of  remaining  there  till  used  or  sold,  and  constituting  part  of  the  great 
mass  of  its  commercial  capital  —  provided  always,  that  the  assess- 
ment be  a  general  one,  and  made  without  discrimination  between 
goods  the  product  of  New  York,  and   goods   the  product  of  other 
States  ?     Of  course  the  assessment  should  be  a  general  one,  and  not 
discriminative  between  goods  of  different    States.     The   taxing  of 
goods  coming  from  other  States,  as  such,  or  by  reason  of  their  so 
coming,   would  be  a  discriminating   tax   against   them   as  imports, 
and  would  be  a  regulation  of  interstate  commerce,  inconsistent  with 
that  perfect  freedom  of  trade  which  Congress    has  seen  fit  should 
remain  undisturbed.     But  if,  after  their  arrival  within  the  State, 
—  that  being  their  place  of  destination  for  use  or  trade,  —  if,  after 
this,  they  are  subjected  to  a  general  tax  laid  alike  on  all  property 
within  the  city,  we  fail  to  see  how  such  a  taxing  can  be  deemed  a 

22 


338  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

regulation  of  commerce  which  would  have  the  objectionable  effect 
referred  to. 

We  do  not  mean  to  say  that  if  a  tax-collector  should  be  stationed 
at  every  ferry  and  railroad  depot  in  the  City  of  New  York,  charged 
with  the  duty  of  collecting  a  tax  on  every  wagon  load,  or  car  load  of 
produce  and  merchandise  brought  into  the  city,  that  it  would  not  be 
a  regulation  of,  and  restraint  upon  interstate  commerce,  so  far  hs  the 
tax  should  be  imposed  on  articles  brought  from  other  States,  We 
think  it  would  be,  and  that  it  would  be  an  encroachment  upon  the 
exclusive  powers  of  Congress.  It  would  be  very  different  from  the 
tax  laid  on  auction  sales  of  all  property  indiscriminately,  as  in  the 
case  of  Woodruff  v.  Parham,  which  had  no  relation  to  the  movement 
of  goods  from  one  State  to  another.  It  would  be  very  different  from 
a  tax  laid,  as  in  the  present  case,  on  property  which  had  reached  its 
destination,  and  had  become  part  of  the  general  mass  of  property  of 
the  city,  and  which  was  only  taxed  as  a  part  of  that  general  mass  in 
common  with  all  other  property  in  the  city,  and  in  preciselj^  the 
same  manner. 

When  Congress  shall  see  fit  to  make  a  regulation  on  the  subject 
of  property'  transported  from  one  State  to  another,  which  may  have 
the  effect  to  give  it  a  temporary  exemption  from  taxation  in  the 
State  to  which  it  is  transported,  it  will  be  time  enough  to  consider 
any  conflict  that  may  arise  between  such  regulation  and  the  general 
taxing  laws  of  the  State.  In  the  present  case  we  see  no  such  con- 
flict, either  in  the  law  itself  or  in  the  proceedings  which  have  been 
had  under  it  and  sustained  by  the  State  tribunals,  nor  any  conflict 
with  the  general  rule  that  a  State  cannot  pass  a  law  which  shall 
interfere  with  the  unrestricted  freedom  of  commerce  between  the 
States. 

[The  second  assignment  of  error  is  held  untenable  and  the  judg- 
ment of  the  State  court  is  affirmed.^] 


X"- 


J-v. 


TELEGRAPH   COMPANY  v.   TEXAS. 
105  United  States,  460.    18S1. 


Error  to  the  Supreme  Court  of  the  State  of  Texas. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  Western  Union  Telegraph  Company  is  a  Xew  Y^ork  corpora- 
tion engaged  in  the  business  of  transmitting  telegrams  at  fixed  rates 
of  compensation.     Its  lines   extend   into  and   through  most  of   the 

1  In  the  case  of  American  Steel  and  Wire  Company  v  Speed.  192  U  S.  500,  24 
Sup.  Ct.  Kep.  365  (1904),  it  was  held  that  merchandise  brought  into  the  State  from 
another  State  and  held  for  sale  was  not  exempt  from  uniform  State  merchants' 
privilege  tax. 


SECT.  II.  b.  2.]  TELEGRAPH    COMPANY   V.    TEXAS. 


339 


States  and  Territories  of  the  United  States,  and  to  "Washington,  in 
the  District  of  Columbia.  It  has  availed  itself  of  the  privileges  and 
subjected  itself  to  the  obligations  of  title  65  of  the  Eevised  Stat- 
utes relating  to  telegraph  companies,  and  its  lines  connect  with 
those  owned  and  established  by  the  government  of  the  United  States 
for  public  purposes.  It  has  one  hundred  and  twenty-five  offices  in 
the  State  of  Texas,  and  is  in  close  communication  with  other  tele- 
graph companies  doing  business  in  this  country  and  abroad. 

By  sect.  1  of  art.  8  of  the  Constitution  of  Texas  the  legislature 
is  authorized  to  "impose  occupation  taxes,  both  upon  natural  per- 
sons and  upon  corporations,  other  than  municipal,  doing  business  in 
the  State  ; "  and  by  art.  4G55  of  the  Revised  Statutes,  enacted  under 
that  provision,  every  chartered  telegraph  company  doing  business  in 
the  State  is  required  to  pay  a  tax  of  one  cent  for  every  full-rate 
message  sent,  and  one-half  cent  for  every  message  less  than  full  rate. 
This  tax  is  to  be  paid  quarterly  to  the  comptroller  of  the  State  on 
sworn  statements  made  by  an  officer  of  the  company.  In  addition  to 
this,  taxes  must  be  paid  on  the  real  and  personal  property  of  the 
company  in  the  State. 

Between  Oct.  1,  1879,  and  July  1,  1880,  the  company  sent  over 
its  lines  from  its  offices  in  Texas  169,076  full-rate,  and  100,408  less 
than  full-rate,  messages.  A  large  portion  of  them  were  sent  to 
places  outside  of  the  State,  and  by  the  officers  of  the  government  of 
the  United  States  on  public  business.  The  company  neglected  to 
pay  the  tax  imposed,  and  a  suit  was  brought  in  one  of  the  courts 
of  the  State  for  its  recovery.  In  defence  it  was  insisted  that  the 
law  imposing  the  tax  was  in  conflict  with  the  Constitution  and  laws 
of  the  United  States,  and,  therefore,  void.  The  Supreme  Court  of 
the  State,  on  appeal,  sustained  the  law,  and  directed  a  judgment 
against  the  company  for  the  full  amount  claimed,  allowing  no  de- 
ductions for  messages  sent  out  of  the  State,  or  by  government 
officers  on  government  business.  To  reverse  that  judgment  this 
writ  of  error  has  been  brought. 

In  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.  1,  this  court  held  that  the  telegraph  was  an  instrument  cf 
commerce,  and  that  telegraph  companies  were  subject  to  the  regu- 
lating power  of  Congress  in  respect  to  their  foreign  and  interstate 
business.  A  telegraph  company  occupies  the  same  relation  to  com- 
merce as  a  carrier  of  messages,  that  a  railroad  company  does  as  a 
carrier  of  goods.  Both  companies  are  instruments  of  commerce,  and 
their  business  is  commerce  itself.  They  do  their  transportation 
in  different  ways,  and  their  liabilities  are  in  some  respects  differ- 
ent, but  they  are  both  indispensable  to  those  engaged  to  any  consid- 
erable extent  in  commercial  pursuits. 

Congress,  to  facilitate  the  erection  of  telegraph  lines,  has  by 
statute  authorized  the  use  of  the  public  domain  and  the  military 
and  post  roads,  and  the  crossing  of  the  navigable  streams  and  waters 


-5. 


0^--^ 

p 


340  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

of  the  United  States  for  that  purpose.  As  a  return  for  this  privilege 
those  who  avail  themselves  of  it  are  bound  to  give  the  United  States 
precedence  in  the  use  of  their  lines  for  public  business  at  rates  to  be 
fixed  by  the  Postmaster-General.  Thus,  as  to  government  business, 
companies  of  this  class  become  government  agencies. 

The  Western  Union  Telegraph  Company  having  accepted  th.e 
tt-estrictions  and  obligations  of  this  provision  by  Congress,  occupies 
[in  Texas  the  position  of  an  instrument  of  foreign  and  interstate 
(commerce,  and  of  a  government  agent  for  the  transmission  of  mes- 
;  S3ges  on  public  business.  Its  property  in  the  State  is  subject  to 
taxation  the  same  as  other  property,  and  it  may  undoubtedly  be 
taxed  in  a  proper  way  on  account  of  its  occupation  and  its  business. 

?t  The  precise  question  now  presented  is  whether  the  power  to  tax  its 
i  occupation  can  be  exercised  by  placing  a  specific  tax  on  each  message 
sent  out  of  the  State,  or  sent  by  public  ofiicers  on  the  business  of  the 
United  States. 

In  Case  of  the  State  Freight  Tax,  15  Wall.  232,  this  court  decided 
that  a  law  of  Pennsylvania  requiring  transportation  companies  doing 
business  in  that  State  to  pay  a  fixed  sum  as  a  tax  "on  each  two 
thousand  pounds  of  freight  carried,"  without  regard  to  the  distance 
moved,  or  charge  made,  was  unconstitutional,  so  far  as  it  related 
to  goods  taken  through  the  State,  or  from  points  without  the  State  to 
I  jDoints  within,  or  from  points  within  to  points  without,  because  to 
'  that  extent  it  was  a  regulation  of  foreign  and  interstate  commerce. 
In  this  the  court  but  applied  the  rule,  announced  in  Brown  v.  Mary- 
land, 12  Wheat.  419,  444,  that  where  the  burden  of  a  tax  falls  on  a 
(thing  which  is  the  subject  of  taxation,  the  tax  is  to  be  considered  as 
/laid  on  the  thing  rather  than  on  him  who  is  charged  with  the  duty 
of  paying  it  into  the  treasury.  In  that  case,  it  was  said,  a  tax  on  the 
sale  of  an  article,  imported  only  for  sale,  was  a  tax  on  the  article 
itself.  To  the  same  general  effect  are  Welton  v.  State  of  Missouri, 
91  U.  S.  275;  Cook  v.  Pennsylvania,  97  Id.  566;  and  Webber  v. 
Virginia,  103  Id.  344.  Taxes  upon  passenger  carriers  of  a  specific 
/  amount  for  each  passenger  carried  were  held  to  be  taxes  on  the  pas- 
sengers, in  Passenger  Cases,  7  How.  283;  Crandall  v.  State  of 
Nevada,  6  Wall.  35;  and  Henderson  v.  The  Mayor,  92  U.  S.  259. 
Taxes  on  vessels  according  to  measurement  without  any  reference  to 
value,  were  declared  to  be  taxes  on  tonnage.  State  Tonnage  Cases, 
12  Wall.  204;  Peete  v.  Morgan,  19  Id.  581;  Cannon  v.  New  Orleans, 
20  Id.  577;  and  Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  238. 

The  present  case,  as  it  seems  to  us,  comes  within  this  principle. 
The  tax  is  the  same  on  every  message  sent,  and  because  it  is  sent, 
without  regard  to  the  distance  carried  or  the  price  charged.  It  is 
in  no  respect  proportioned  according  to  the  business  done.  If  the 
message  is  sent  the  tax  must  be  paid,  and  the  amount  determined 
solely  by  the  class  to  which  it  belongs.  If  it  is  full  rate,  the  tax  is 
one  cent,  and  if  less  than  full  rate,  one-half  cent.    Clearly,  if  a  fixed 


SECT.  IT.  b.  2.]  LELOUP   V.    MOBILE.  341 

tax  for  every  two  thousand  pounds  of  freight  carried  is  a  tax  on  the 
freight,  or  for  every  measured  ton  of  a  vessel  a  tax  on  tonnage,  or 
for  every  passenger  carried  a  tax  on  the  passenger,  or  for  the  sale 
of  goods  a  tax  on  the  goods,  this  must  be  a  tax  on  the  messages.' 
As  such,  so  far  as  it  operates  on  private  messages  sent  out  of  the 
State,  it  is  a  regulation  of  foreign  and  interstate  commerce  and 
beyond  the  power  of  the  State.  I'hat  is  fully  established  by  the' 
cases  already  cited.  As  to  the  government  messages,  it  is  a  tax  by 
the  State  on  the  means  employed  by  the  government  of  the  United 
States  to  execute  its  constitutional  powers,  and,  therefore,  void.  It 
was  so  decided  in  jMoCulloch  v.  JNIaryland,  4  Wheat.  316,  and  has 
never  been  doubted  since. 

It  follows  that  the  judgment,  so  far  as  it  includes  the  tax  on 
messages  sent  out  of  the  State,  or  for  the  government  on  public  busi- 
ness, is  erroneous.  The  rule  that  the  regulation  of  commerce  which 
is  confined  exclusively  within  the  jurisdiction  and  territory  of  a 
State,  and  does  not  affect  other  nations  or  States  or  the  Indian  tribes, 
that  is  to  say,  the  purely  internal  commerce  of  a  State,  belongs 
exclusively  to  the  State,  is  as  well  settled  as  that  the  regulation  of 
commerce  which  does  affect  other  nations  or  States  or  the  Indian 
tribes  belongs  to  Congress.  Any  tax,  therefore,  which  the  State 
may  put  on  messages  sent  by  private  parties,  and  not  by  the  agents 
of  the  government  of  the  United  States,  from  one  place  to  another 
exclusively  within  its  own  jurisdiction,  will  not  be  repugnant  to  the 
Constitution  of  the  United  States.  Whether  the  law  of  Texas,  in  its 
present  form,  can  be  used  to  enforce  the  collection  of  such  a  tax  is 
a  question  entirely  within  the  jurisdiction  of  the  courts  of  the  State, 
and  as  to  which  we  have  no  power  of  review. 

The  judgment  of  the  Supreme  Court  of  Texas  will  be  reversed, 
and  the  cause  remanded  with  instructions  to  reverse  the  judgment 
of  the  District  Court,  and  proceed  thereafter  as  justice  may  require, 
but  not  inconsistently  with  this  opinion.'' 

1  In  Leloup  v.  Port  of  Mobile,  127  U.  S.  640  (1888),  .1  case  in  which  a  State 
statute  imposing  a  license  tax  on  telegraph  companies  engaged  wholly  or  partially  in 
transmitting  messages  to  other  States  and  to  foreign  countries,  was  held  to  he  invalid, 
Mr.  Justice  Bradlev,  announcing  the  opinion  of  the  court,  uses  this  language: 
"  No  State  has  the  right  to  lay  a  tax  on  interstate  commerce  in  any  form,  whetJicr  hy 
way  of  duties  laid  on  the  transportation  of  the  subjects  of  that  commerce,  or  on  tlie 
receipts  derived  from  tliat  transportation,  or  on  the  occupation  or  business  of  carrying 
it  on,  and  the  reason  is  that  such  taxation  is  a  burden  on  that  commerce,  and  amounts 
to  a  regulation  of  it,  which  belougs  solely  to  Congress." 


342  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 


PHILADELPHIA  AND  SOUTHERN  STEA:MSHIP  COMPANY 
V.   PENNSYLVANIA. 

122  United  States,  326.     1887. 

!Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  question  in  this  case  was,  whether  a  State  can  constitutionally 
impose  upon  a  steamship  company,  incorporated  under  its  laws,  a  tax 
upon  the  gross  receipts  of  such  company  derived  from  the  transporta- 
tion of  persons  and  property  by  sea,  between  different  States,  and  to 
and  from  foreign  countries. 

The  question  which  underlies  the  immediate  question  in  the  case 
is,  whether  the  imposition  of  the  tax  upon  the  steamship  company's 
receipts  amounted  to  a  regulation  of,  or  an  interference  with,  inter- 
state and  foreign  commerce,  and  was  thus  in  conflict  with  the  power 
granted  by  the  Constitution  to  Congress  ?  The  tax  was  levied  directly 
upon  the  receipts  derived  by  the  company  from  its  fares  and  freights 
for  the  transportation  of  persons  and  goods  between  different  States, 
and  between  the  States  and  foreign  countries,  and  from  the  charter  of 
its  vessels  which  was  for  the  same  purpose.  This  transportation 
was  an  act  of  interstate  and  foreign  commerce.  It  was  the  carrying 
on  of  snch  commerce.  It  was  that,  and  nothing  else.  In  view  of 
the  decisions  of  this  court,  it  cannot  be  pretended  that  the  State  could 
constitutionally  regulate  or  interfere  with  that  commerce  itself.  But 
taxing  is  one  of  the  forms  of  regulation.  It  is  one  of  the  principal 
forms.  Taxing  the  transportation,  either  by  its  tonnage,  or  its  dis- 
tance, or  by  the  number  of  trips  performed,  or  in  any  other  way, 
would  certainly  be  a  regulation  of  the  commerce,  a  restriction  upon 
it,  a  burden  upon  it.  Clearly  this  could  not  be  done  by  the  State 
without  interfering  with  the  power  of  Congress.  Foreign  commerce 
has  been  fully  regulated  by  Congress,  and  any  regulations  imposed 
by  the  States  upon  that  branch  of  commerce  would  be  a  palpable  in- 
terference. If  Congress  has  not  made  any  express  regulations  with 
regard  to  interstate  commerce,  its  inaction,  as  we  have  often  held,  is 
equivalent  to  a  declaration  that  it  shall  be  free,  in  all  cases  where  its 
power  is  exclusive ;  and  its  power  is  necessarily  exclusive  whenever 
the  subject  matter  is  national  in  its  character  and  properly  admits  of 
only  one  uniform  system.  See  the  cases  collected  in  Bobbins  v. 
Shelby  Taxing  District,  120  U.  S.  489,  492,  493.  Interstate  commerce 
carried  on  by  ships  on  the  sea  is  surely  of  this  character. 

If,  then,  the  commerce  carried  on  by  the  plaintiff  in  error  in 
this  case  could  not  be  constitutionally  taxed  by  the  State,  could  the 
fares  and  freights  received  for  transportation  in  carrying  on  that 
commerce  be  constitutionally  taxed  ?  If  the  State  cannot  tax  the 
transportation,  may  it,  nevertheless,  tax  the  fares  and  freights  re- 


SECT.  II.  b.  2.]      PPILADELPHIA,   ETC.   CO.   V.   PENNSYLVANIA.  343 

ceived  therefor  ?  Where  is  the  difference  ?  Looking  at  the  sub- 
stance of  things,  and  not  at  mere  forms,  it  is  very  difficult  to  see  any 
difference.  The  one  thing  seems  to  be  tantamount  to  the  other.  It 
would  seem  to  be  rather  metaphysics  than  plain  logic  for  the  State 
officials  to  say  to  the  company  :  "  We  will  not  tax  you  for  the  trans- 
portation you  perform,  but  we  will  tax  you  for  what  you  get  for  per- 
forming it."  Such  a  position  can  hardly  be  said  to  be  based  on  a 
sound  method  of  reasoning. 

[The  court  considers  and  quotes  from  Brown  v.  Maryland,  12  Wheat. 
419,  supra,  p.  303.] 

The  application  of  this  reasoning  to  the  case  in  hand  is  obvious. 
Of  what  use  would  it  be  to  the  ship-owner,  in  carrying  on  interstate 
and  foreign  commerce,  to  have  the  right  of  transporting  persons  and 
goods  free  from  State  interference,  if  he  had  not  the  equal  right  to 
charge  for  such  transportation  without  such  interference  ?  The  very 
object  of  his  engaging  in  transportation  is  to  receive  pay  for  it.  If 
the  regulation  of  the  transportation  belongs  to  the  power  of  Congress 
to  regulate  commerce,  the  regulation  of  fares  and  freights  receivable 
for  such  transportation  must  equally  belong  to  that  power  ;  and  any 
burdens  imposed  by  the  State  on  such  receipts  must  be  in  conflict 
with  it.  To  apply  the  language  of  Chief  Justice  Marshall,  fares  and 
freights  for  transportation  in  carrying  on  interstate  or  foreign  com- 
merce are  as  much  essential  ingredients  of  that  commerce  as  transpor- 
tation itself. 

It  is  necessary,  however,  that  we  should  examine  what  bearing 
the  cases  of  the  State  Freight  Tax  and  Railway  Gross  Receipts,  re- 
ported in  15th  of  Wallace,  have  upon  the  question  in  hand.  These 
cases  were  much  quoted  in  argument,  and  the  latter  was  confidently 
relied  on  by  the  counsel  of  the  Commonwealth.  They  both  arose 
under  certain  tax  laws  of  Pennsylvania.  The  first,  which  is  reported 
under  the  title  of  Case  of  the  State  Freight  Tax,  15  Wall.  232,  was 
that  of  the  Reading  Railroad  Company,  and  arose  under  an  act  passed 
in  1864,  which  imposed  upon  every  railroad,  steamboat,  canal,  and 
slack-water  navigation  company  a  tax  of  a  certain  rate  per  ton  on 
every  ton  of  freight  carried  by  or  upon  the  works  of  said  company ; 
with  a  proviso  directing,  in  substance,  that  every  company,  foreign  or 
domestic,  whose  line  extended  partly  in  Pennsylvania  and  partly  in 
another  State,  should  pay  for  the  freight  carried  over  that  portion  of 
its  line  in  Pennsylvania  the  same  as  if  its  whole  line  were  in  that 
State.  Under  this  law  the  Reading  Railroad  Company  was  charged 
a  tax  of  $38,000  for  freight  transported  to  points  within  Pennsyl- 
vania, and  of  $46,000  for  that  exported  to  points  without  the  State. 
The  latter  sum  the  company  refused  to  pay ;  and  the  question  in  this 
Court  was,  whether  that  portion  of  the  tax  was  constitutional ;  and 
we  held  that  it  was  not.  Mr.  Justice  Strong  delivered  the  opinion  of 
the  court.  It  was  held  that  this  was  not  a  tax  upon  the  franchises  of 
the  companies,  or  upon  their  property,  or  upon  their  business,  meas- 


344  THE   LEGISLx\TIVE   DEPARTMENT.  [CHAP.  IV. 

iired  by  the  number  of  tons  of  freight  carried ;  but  was  a  tax  upon 
the  freight  carried,  and  because  of  its  carriage :  that  transportation  is 
a  constituent  of  commerce  :  that  the  tax  was,  therefore,  a  regulation 
of  commerce,  and  a  reguhition  of  commerce  among  the  States  :  that 
the  transportation  of  passengers  or  merchandise  from  one  State  to 
another  is,  in  its  nature,  a  matter  of  national  importance,  admitting 
of  a  uniform  system  or  plan  of  regulation,  and  therefore,  under  the 
rule  established  by  Cooley  v.  The  Port  Wardens,  12  How.  299,  exclu- 
sively subject  to  the  legislation  of  Congress.  The  inevitable  con- 
clusion was,  that  the  tax  then  in  question  was  in  conflict  with  the 
exclusive  power  of  Congress  to  regulate  commerce  among  the  States, 
and  was,  therefore,  unconstitutional.  Referriug  to  the  decision  in 
Crandall  v.  Nevada,  6  Wall.  35,  in  which  this  court  had  decided  that 
a  State  cannot  tax  persons  for  passing  through  or  out  of  it,  Justice 
Strong  said  :  "  If  State  taxation  of  persons  passing  from  one  State  to 
another,  or  a  State  tax  upon  interstate  transportation  of  passengers, 
is  unconstitutional,  a  fortiori,  if  possible,  is  a  State  tax  upon  the 
carriage  of  merchandise  from  State  to  State  in  conflict  with  the  Fed- 
eral  Constitution.  Merchandise  is  the  subject  of  commerce.  Trans- 
portation is  essential  to  commerce ;  and  every  burden  laid  upon  it  is 
pro  tanto  a  restriction.  Whatever,  therefore,  may  be  the  true  doc- 
trine respecting  the  exclusiveness  of  the  power  vested  in  Congress  to 
regulate  commerce  among  the  States,  we  regard  it  as  established 
that  no  State  can  impose  a  tax  upon  freight  transported  from  State 
to  State,  or  upon  the  transporter  because  of  such  transportation." 

The  court  in  its  opinion  took  notice  of  the  fact  that  the  law  was 
general  in  its  terms,  making  no  distinction  between  freight  trans- 
ported wholly  within  the  State  and  that  which  was  destined  to,  or 
came  from,  another  State.  But  it  was  held  that  this  made  no  diiTer- 
ence.  The  law  might  be  valid  as  to  one  class,  and  unconstitutional 
as  to  the  other.  On  this  subject  Justice  Strong  said:  "The  State 
may  tax  its  internal  commerce,  but  if  an  act  to  tax  interstate  or 
foreign  commerce  is  unconstitutional,  it  is  not  cured  by  including 
in  its  provisions  subjects  within  the  jurisdiction  of  the  State.  Nor  is 
a  rule  prescribed  for  carriage  of  goods  through,  out  of,  or  into  a 
State,  any  the  less  a  regulation  of  transportation  because  the  same 
rule  may  be  applied  to  carriage  which  is  wholly  internal."  This 
last  observation  meets  the  argument  that  might  be  made  in  the  pres- 
ent case,  namely,  that  the  law  is  general  in  its  terms,  and  taxes 
receipts  for  all  transportation  alike,  making  no  discrimination 
against  receipts  for  interstate  or  foreign  transportation,  and  hence 
cannot  be  regarded  as  a  special  tax  on  the  latter.  The  decision  in 
the  case  cited  shows  that  this  does  not  relieve  the  tax  from  its 
objectionable  character. 

If  this  case  stood  alone,  we  should  have  no  hesitation  in  saying 
that  it  would  entirely  govern  the  one  before  us;  for,  as  before  said, 
a  tax  upon  fares  and  freights  received  for  transportation  is  virtually 


SECT.  II.  b.  2.]       PHILADELPHIA,   ETC.    CO.    V.    PENNSYLVANIA.  345 

a  tax  upon  the  transportation  itself.  But  at  the  same  time  tliat  the 
case  of  State  Freight  Tax  was  decided,  the  other  case  referred  to, 
namely,  that  of  State  Tax  on  Eailway  Gross  Keceipts  was  also  de- 
cided, and  the  opinion  was  delivered  by  the  same  member  of  the 
court.  15  Wall.  284.  This  was  also  a  case  of  a  tax  imposed  upon 
the  Reading  Railroad  Company.  It  arose  under  another  act  of 
Assembly  of  Pennsylvania,  passed  in  February,  1866,  by  which  it 
was  enacted  that  "  in  addition  to  the  taxes  now  provided  l\y  law, 
every  railroad,  canal  and  transportation  company  incorporated  under 
the  laws  of  this  Commonwealth,  and  not  liable  to  the  tax  upon  in- 
come under  existing  laws,  shall  pay  to  the  Commonwealth  a  tax  of 
three-fourths  of  one  per  centum  upon  the  gross  receipts  of  said 
Company;  the  said  tax  shall  be  paid  semi-annually."  Under  this 
statute  the  accounting  officers  of  Pennsylvania  stated  an  account 
against  the  Reading  Railroad  Company  for  tax  on  gross  receipts  of 
the  company  for  the  half  year  ending  December  31,  1867.  These 
receipts  were  derived  partly  from  the  freight  of  goods  transported 
wholly  within  the  State,  and  partly  from  the  freight  of  goods  ex- 
ported to  points  without  the  State,  which  latter  were  discriminated 
frojn  the  former  in  the  reports  made  by  the  company.  It  was  the 
tax  on  the  latter  receipts  which  formed  the  subject  of  controversy. 
The  same  line  of  argument  was  taken  at  the  bar  as  in  the  other  case. 
This  court,  however,  held  the  tax  to  be  constitutional.  The  grounds 
on  which  the  opinion  was  based,  in  order  to  distinguish  this  case 
from  the  preceding  one,  were  two:  first,  that  the  tax,  being  collecti- 
ble only  once  in  six  months,  was  laid  upon  a  fund  which  had  become 
the  property  of  the  company,  mingled  with  its  other  property,  and 
incorporated  into  the  general  mass  of  its  property,  possibly  expended 
in  improvements,  or  otherwise  invested.  The  case  is  likened,  in 
the  opinion,  to  that  of  taxing  goods  which  have  been  imported,  after 
their  original  packages  have  been  broken,  and  after  they  have  been 
mixed  with  the  mass  of  property  in  the  country,  which,  it  was  said, 
are  conceded  in  Brown  v.  Maryland  to  be  taxable. 

This  reasoning  seems  to  have  much  force.  But  is  the  analogy  to 
the  case  of  imported  goods  as  perfect  as  is  suggested  ?  "When  the 
latter  become  mingled  with  the  general  mass  of  property  in  the 
State,  they  are  not  followed  and  singled  out  for  taxation  as  imported 
goods,  and  by  reason  of  their  being  imported.  If  they  were,  the 
tax  would  be  as  unconstitutional  as  if  imposed  upon  them  whilst 
in  the  original  packages.  When  mingled  with  the  general  mass  of 
property  in  the  State,  they  are  taxed  in  the  same  manner  as  other 
property  possessed  by  its  citizens,  without  discrimination  or  partial- 
ity. We  held  in  Welton  v.  Missouri,  91  U.  S.  275,  that  goods 
brought  into  a  State  for  sale,  though  they  thereby  become  a  part  of 
the  mass  of  its  property,  cannot  be  taxed  by  reason  of  their  being 
introduced  into  the  State,  or  because  they  are  the  products  of  an- 
other State.     To  tax  them  as  such  was  expressly  held  to  be  unconsti- 


346  THE   LEGISLATIVE   DEPARTMENT.  [CHAP,  IV. 

tutional.  The  tax  in  the  present  case  is  laid  upon  the  gross  receipts 
for  transportation  as  such.  Those  receipts  are  followed  and  caused 
to  be  accounted  for  by  the  company,  dollar  for  dollar.  It  is  those 
soecific  receipts,  or  the  amount  thereof  (which  is  the  same  thing), 
for  which  the  company  is  called  upon  to  pay  the  tax.  They  are 
taxed  not  only  because  they  are  money,  or  its  value,  but  because  they 
were  received  for  transportation.  No  doubt  a  ship-owner,  like  any 
other  citizen,  may  be  personally  taxed  for  the  amount  of  his  prop- 
erty or  estate,  without  regard  to  the  source  from  which  it  was  de- 
rived, whether  from  commerce,  or  banking,  or  any  other  employ- 
ment. But  that  is  an  entirely  different  thing  from  laying  a  special 
tax  upon  his  receipts  in  a  particular  employment.  If  such  a  tax  is 
laid,  and  the  receipts  taxed  are  those  derived  from  transporting 
goods  and  passengers  in  the  way  of  interstate  or  foreign  commerce, 
no  matter  when  the  tax  is  exacted,  whether  at  the  time  of  realizing 
the  receipts  or  at  the  end  of  every  six  months  or  a  year,  it  is  an 
exaction  aimed  at  the  commerce  itself,  and  is  a  burden  upon  it,  and 
seriously  affects  it.  A  review  of  the  question  convinces  us  that  the 
first  ground  on  which  the  decision  in  State  Tax  on  Eailway  Gross 
Eeceipts  was  placed  is  not  tenable;  that  it  is  not  supported  by  any- 
thing decided  in  Brown  v.  Maryland;  but,  on  the  contrary,  that  the 
reasoning  in  that  case  is  decidedly  against  it. 

The  second  ground  on  which  the  decision  referred  to  was  based 
was,  that  the  tax  was  upon  the  franchise  of  the  corporation  granted 
to  it  by  the  State.  We  do  not  think  that  this  can  be  affirmed  in  the 
present  case.  It  certainly  could  not  have  been  intended  as  a  tax 
on  the  corporate  franchise,  because,  by  the  terms  of  the  act,  it 
was  laid  equally  on  the  corporations  of  other  States  doing  business 
in  Pennsylvania.  If  intended  as  a  tax,  on  the  franchise  of  doing 
business,  —  which  in  this  case  is  the  business  of  transportation  in 
carrying  on  interstate  and  foreign  commerce,  it  would  clearly  be 
unconstitutional.  It  was  held  by  this  court,  in  the  case  of  Gloucester 
Ferry  Company  v.  Pennsylvania,  114  U.  S.  196,  that  interstate  com- 
merce carried  on  by  corporations  is  entitled  to  the  same  protection 
against  State  exactions  which  is  given  to  such  commerce  when  carried 
on  by  individuals.  In  that  case  the  tax  was  laid  upon  the  capital 
stock  of  a  ferry  company  incorporated  by  New  Jersey,  and  engaged 
in  the  business  of  transporting  passengers  and  freight  between 
Camden,  in  New  Jersey,  and  the  city  of  Philadelphia.  The  law 
under  which  the  tax  was  imposed  was  passed  by  the  Legislature  of 
Pennsylvania  on  the  7th  of  June,  1879,  and  declared  "that  every 
company  or  association  whatever,  now  or  hereafter  incorporated  by 
or  under  any  law  of  this  Couamonwealth,  or  now  or  hereafter  incor- 
porated by  any  other  State  or  territory  of  the  United  States,  or 
foreign  government,  and  doing  business  in  this  Commonwealth" 
.  .  .  [with  certain  exceptions  named],  "  shall  be  subject  to  and  pay 
into  the  treasury  of  the  Commonwealth  annually  a  tax  to  be  com- 


SECT.  II.  b.  2. J       PHILADELPHIA,    ETC.    CO.    V.   PENNSYLVANIA. 


347 


puted  as  follows,  namely : "  the  amount  of  tax  is  then  rated  by  the 
dividends  declared,  and  imposed  upon  the  capital  stock  of  the  com- 
pany at  the  rate  of  so  many  mills,  or  fractions  of  a  mill,  for  every 
dollar  of  such  capital  stock.  It  was  contended  that  the  ferry  com- 
pany could  not  hold  property  in  Philadelphia  for  the  purpose  of 
carrying  on  its  ferrying  business,  and  could  not  carry  on  its  said 
buasiness  there  without  a  franchise,  express  or  implied,  from  the 
State  of  Pennsylvania.  But  this  court  held,  in  its  opinion,  delivered 
by  Mr.  Justice  Field,  that  the  business  of  landing  and  receiving 
passengers  and  freight  at  the  wharf  in  Philadelphia  was  a  necessary 
incident  to,  and  a  part  of,  their  transportation  across  the  Delaware 
River  from  New  Jersey;  that  without  it  that  transportation  would 
be  impossible;  that  a  tax  upon  such  receiving  and  landing  of  passen- 
gers and  freight  is  a  tax  upon  their  transportation,  that  is,  upon  the 
commerce  between  the  two  States  involved  in  such  transportation; 
and  that  Congress  alone  can  deal  with  such  transportation ;  its  non- 
action being  equivalent  to  a  declaration  that  it  shall  remain  free  from 
burdens  imposed  by  State  legislation.  The  opinion  proceeds  as  fol- 
lows: "Nor  does  it  make  any  difference  whether  such  commerce  is 
carried  on  by  individuals  or  corporations.  Welton  v.  Missouri, 
91  U.  S.  275;  Mobile  y.  Kimball,  102  U.  S.  691.  As  was  said  in 
Paul  V.  Virginia,  8  Wall.  168,  at  the  time  of  the  formation  of  the 
Constitution,  a  large  part  of  the  commerce  of  the  world  was  carried 
on  by  corporations;  and  the  East  India  Company,  the  Hudson  "Bay 
Company,  the  Hamburgh  Company,  the  Levant  Company,  and  the 
Virginia  Company  were  mentioned  as  among  the  corporations  which, 
from  the  extent  of  their  operations,  had  become  celebrated  through- 
out the  commercial  world.  The  grant  of  power  [to  Congress]  is  gen- 
eral in  its  terms,  making  no  reference  to  the  agencies  by  which 
commerce  may  be  carried  on.  It  includes  commerce  by  whomsoever 
conducted,  whether  by  individuals  or  corporations."  p.  204.  Again, 
"  While  it  is  conceded  that  the  property  in  a  State  belonging  to  a  for- 
eign corporation  engaged  in  foreign  or  interstate  commerce  may  be 
taxed  equally  with  like  property  of  a  domestic  corporation  engaged 
in  that  business,  we  are  clear  that  a  tax  or  other  burden  imposed  on 
the  property  of  either  corporation  because  it  is  used  to  carry  on  that 
commerce,  or  upon  the  transportation  of  persons  or  property,  or  for 
the  navigation  of  the  public  waters  over  which  the  transportation  is 
made,  is  invalid  and  void  as  an  interference  with,  and  obstruction 
of,  the  power  of  ('ongress  in  the  regulation  of  such  commerce." 
p.  211.  It  is  hardly  necessary  to  add  that  the  tax  on  the  capital 
stock  of  the  New  Jersey  Company,  in  that  case,  was  decided  to  be 
unconstitutional,  because,  as  the  corporation  was  a  foreign  one,  the 
tax  could  only  be  construed  as  a  tax  for  the  privilege  or  franchise  of 
carrying  on  its  business,  and  that  business  was  interstate  commerce. 
The  decision  in  this  case,  and  the  reasoning  on  which  it  is 
founded,  so  far  as  they  relate  to  the  taxation  of  interstate  commerce 


348  THE    LEGISLATIVE    DEPARTMENT,  [CHAP.  IV. 

carried  on  by  corporations,  apply  equally  to  domestic  and  foreign 
corporations.  No  doubt  the  capital  stock  of  the  former,  regarded  as 
inhabitants  of  the  State,  or  their  property,  may  be  taxed  as  other 
corporations  and  inhabitants  are,  provided  no  discrimination  be 
made  against  them  as  corporations  carrying  on  foreign  or  interstate 
commerce,  so  as  to  make  the  tax,  in  effect,  a  tax  on  such  commerce. 
But  their  business  as  carriers  in  foreign  or  interstate  commerce  can- 
not be  taxed  by  the  State,  under  the  plea  that  they  are  exercising  a 
franchise. 

The  corporate  franchises,  the  property,  the  business,  the  income  of 
corporations  created  by  a  State  may  undoubtedly  be  taxed  by  the 
State ;  but  in  imposing  such  taxes  care  should  be  taken  not  to  inter- 
fere with  or  hamper,  directly  or  by  indirection,  interstate  or  foreign 
commerce,  or  any  other  matter  exclusively  within  the  jurisdiction  of 
the  Federal  government.  This  is  a  principle  so  often  announced  by 
the  courts,  and  especially  by  this  court,  that  it  may  be  received  as  an 
axiom  of  our  constitutional  jurisprudence.  It  is  unnecessary,  there- 
fore, to  review  the  long  list  of  cases  in  which  the  subject  is  discussed. 
Those  referred  to  are  abundantly  sufficient  for  our  purpose.  We  may 
add,  however,  that  since  the  decision  of  the  Kailway  Tax  Cases  now 
reviewed,  a  series  of  cases  has  received  the  consideration  of  this 
court,  the  decisions  in  which  are  in  general  harmony  with  the  views 
here  expressed,  and  show  the  extent  and  limitations  of  the  rule  that 
a  State  cannot  regulate  or  tax  the  operations  or  objects  of  interstate 
or  foreign  commerce. 

[Many  cases  are  cited  without  comment.] 

It  is  hardly  within  the  scope  of  the  present  discussion  to  refer  to 
the  disastrous  effects  to  which  the  power  to  tax  interstate  or  foreign 
commerce  may  lead.  If  the  power  exists  in  the  State  at  all,  it  has  no 
limit  but  the  discretion  of  the  State,  and  might  be  exercised  in  such 
a  manner  as  to  drive  away  that  commerce,  or  to  load  it  with  an  in- 
tolerable burden,  seriously  affecting  the  business  and  prosperity  of 
other  States  interested  in  it ;  and  if  those  States,  by  way  of  retalia- 
tion or  otherwise,  should  impose  like  restrictions,  the  utmost  con- 
fusion would  prevail  in  our  commercial  affairs.  In  view  of  such  a 
state  of  things  which  actually  existed  under  the  Confederation,  Chief 
Justice  IMarshall,  in  the  case  before  referred  to,  said  :  "  Those  who 
felt  the  injury  arising  from  this  state  of  things,  and  those  who  were 
capable  of  estimating  the  influence  of  commerce  on  the  prosperity  of 
nations,  perceived  the  necessity  of  giving  the  control  over  this  im- 
portant subject  to  a  single  government.  It  may  be  doubted  whether 
any  of  the  evils  proceeding  from  the  feebleness  of  the  Federal  govern- 
ment contributed  more  to  that  great  revolution  which  introduced  the 
present  system,  than  the  deep  and  general  conviction  that  commerce 
ought  to  be  regulated  by  Congress.  It  is  not,  therefore,  matter  of 
surprise,  that  the  grant  should  be  as  extensive  as  the  mischief,  and 


SECT.  II.  b.  2.]       ADAMS  EXPRESS  CO.  V.  OHIO  STATE  AUDITOR.  349 

should  comprehend  all  foreign  commerce,  aud  all  commerce  among 
the  States.  To  construe  the  power  so  as  to  impair  its  efficac}'',  would 
tend  to  defeat  an  object,  in  the  attainment  of  which  the  American 
jjublic  took,  and  justly  took,  that  strong  interest  which  arose  from  a 
full  conviction  of  its  necessity."     12  Wheat.  446. 

[The  impositioa  of  tlie  tax  in  question  was  therefore  found  to  be 
a  regulation  of  interstate  and  foreign  commerce  aud  the  JLulgment 
appealed  from  was  reversed.^] 


ADAMS   EXPRESS  COMPANY   v.   OHIO   STATE   AUDITOR. 

1G5  United  States,  191.     1897. 

jMr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

[Suits  were  brought  by  the  express  companies  in  the  United 
States  Circuit  Court  for  the  Southern  District  of  Ohio  to  restrain 
proceedings  under  a  State  statute  to  collect  taxes  from  such  com- 
panies. The  court  dismissed  the  cases  and  they  were  appealed  to 
this  court.  The  State  statute  has  been  held  by  the  State  Supreme 
Court  not  to  be  contrary  to  the  State  constitution.  State  v.  Jones, 
51  Ohio  St.  492.] 

This  brings  us  to  the  only  inquiry  which  it  concerns  us  to 
examine.  The  legislation  in  question  is  claimed  to  be  repugnant 
to  the  Constitution  of  the  United  States  because  in  violation  of  the 
commerce  clause  of  that  instrument,  and  because  operating  to  de- 
prive appellants  of  their  property  without  due  process  of  lavr,  and  of 
the  equal  protection  of  the  laws. 

We  assume  that  the  assessments  complained  of  were  made  in 
pursuance  of  the  definite  rule  or  principle  of  appraisement  recog- 
nized and  established  by  the  Nichols  law,  as  construed  by  the 
Supreme  Court  of  Ohio,  and  the  question  is  whether  the  law  pre- 
scribing that  rule  is  valid  under  the  Federal  Constitution. 

The  principal  contention  is  that  the  rule  contravenes  the  commerce 
clause  because  the  assessments,  while  purporting  to  be  on  the  prop- 
erty of  complainants  within  the  State,  are  in  fact  levied  on  their 
business,  which  is  largely  interstate  commerce. 

Although  the  transportation  of  the  subjects  of  interstate  commerce, 
or  the  receipts  received  therefrom,  or  the  occupation  or  business  of 
carrying  it  on,  cannot  be  directly  subjected  to  state  taxation,  yet 
property  belonging  to  corporations  or  com]ianies  engaged  in  such 
commerce  may  be;  and  whatever  the  })articular  form  of  the  exaction, 
if  it  is  essentially  only  property  taxation,  it  will  not  be  considered 

1  This  case  is  followed,  and  the  case  of  Maine  v.  Grand  Trnnk  Railroad  Company, 
142  U.  S.  21",  distinguisiied,  hy  tiie  majority  opinion  iu  Galvksto.v,  etc.  li.  Co.  v. 
Texas,  210  U.  S.  217,  28  Sup.  Ct.  Hep.  6.38  (1908). 


350  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

as  falling  within  the  inhibition  of  the  Constitution.  Corporations 
and  companies  engaged  in  interstate  commerce  should  bear  their 
proper  proportion  of  the  burdens  of  the  governments  under  whose 
protection  they  conduct  their  operations,  and  taxation  on  property, 
collectible  by  the  ordinary  means,  does  not  affect  interstate  com- 
merce otherwise  than  incidentally,  as  all  business  is  affected  by  the 
necessity  of  contributing  to  the  support  of  government.  Postal 
Telegraph  Cable  Co.  v.  Adams,  155  U.  S.  688. 

As   to   railroad,   telegraph  and  sleeping-car  companies,   engaged 
in  interstate  commerce,   it  has  often  been  held  by  this  court  that 
their  property,  in  the  several  States  through  which  their  lines  or  busi- 
ness extended,  might  be  valued  as  a  unit  for  the  purposes  of  taxa- 
tion, taking  into  consideration  the  uses  to  which  it  was  put  and  all 
the  elements  making  up  aggregate  value,  and  that  a  proportion  of 
the  whole  fairly  and  properly  ascertained  might  be  taxed  by  the  par- 
ticular State,  without  violating  any  Federal  restriction.     Western 
Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530;  Massachu- 
setts V.  Western   Union  Telegraph  Co.,  141  U.    S.    40;    Maine  v. 
Grand  Trunk  Railway,  142  U.  S.  217;  Pittsburgh,  Cincinnati,  &c. 
Eailway  Co.  v.  Backus,  154  U.  S.  421 ;    Cleveland,  Cincinnati,   &c. 
Railway  Co.  v.  Backus,   ibid.  439 ;    Western  Union  Telegraph  Co. 
V.   Taggart,    163    U.   S.  1 ;   Pullman's   Palace    Car  Co.  v.  Pennsyl- 
vania, 141  U.  S.  18.     The  valuation  was,  thus,  not  confined  to  the 
wires,  poles,   and   instruments   of  the  telegraph   company ;  or  the 
roadbed,  ties,  rails,  and  spikes  of  the  railroad  company ;  or  the  cars 
of  the  sleeping-car  company  ;  but  included  the  proportionate  part  of 
the  value  resulting  from  the  combination  of  the  means  by  which 
the  business  was  carried  on,  a  value  existing  to  an  appreciable  extent 
throughout  the  entire  domain  of  operation.     And  it  has  been  decided 
that  a  proper  mode  of  ascertaining  the  assessable  value  of  so  much 
of  the  whole  property  as  is  situated  in  a  particular  State  is,  in  the 
case  of  railroads,  to  take  that  part  of  the  value  of  the  entire  road 
which  is  measured  by  the  proportion  of  its  length  therein  to  the 
length  of  the  whole ;  Pittsburgh,  &c.  R.  Co.  v.  Backus,  154  U.  S.  421, 
429  ;  or  taking  as  the  basis  of  assessment  such  proportion  of  the  cap- 
ital stock  of  a  sleeping-car  company  as  the  number  of  miles  of  rail- 
road over  which  its  cars  are  run  in  a  particular  State  bears  to  the 
whole  number  of  miles  traversed  by  them  in  that  and  other  States; 
Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  or  such  a 
proportion  of   the  whole  value  of  the  capital  stock  of  a  telegraph 
company  as  the  length  of  its  lines  within  a  State  bears  to  the  length 
of  all  its  lines  everywhere,  deducting  a  sum  equal  to  the  value  of  its 
real  estate  and  machinery  subject  to  local  taxation  within  the  State. 
Western  Union  Telegraph  Co.  v.  Taggart,  163  U.  S.  1. 

Doubtless  there  is  a  distinction  between  the  property  of  railroad 
and  telegraph  companies  and  that  of  express  companies.  The  physi- 
cal unity  existing  in  the  former  is  lacking  in  the  latter;  but  there 


SECT.  11.  b.  2.]       ADAMS  EXPRESS  CO.  V.  OHIO  STATE  AUDITOR.  S51 

is  the  same  unity  in  the  use  of  the  entire  property  for  the  specific 
purpose,  and  there  are  the  same  elements  of  value  arising  from  such 
use. 

The  cars  of  the  Pullman  Company  did  not  constitute  a  physical 
unity,  and  their  value  as  separate  cars  did  not  bear  a  direct  relation 
to  the  valuation  which  was  sustained  in  that  case.  The  cars  were 
moved  by  railway  carriers  under  contract,  and  the  taxation  of  the 
corporation  in  Pennsylvania  was  sustained  on  the  theory  that  the 
whole  property  of  the  company  might  be  regarded  as  a  unit  plant, 
with  a  unit  value,  a  proportionate  part  of  which  value  might  be 
reached  by  the  State  authorities  on  the  basis  indicated. 

No  more  reason  is  perceived  for  limiting  the  valuation  of  the  prop- 
erty of  express  companies  to  horses,  wagons  and  furniture,  than  that 
of  railroad,  telegraph  and  sleeping-car  companies,  to  roadbed,  rails 
and  ties;  poles  and  wires;  or  cars.  The  unit  is  a  unit  of  use  and 
management,  and  the  horses,  wagons,  safes,  pouches,  and  furniture; 
the  contracts  for  transportation  facilities;  the  capital  necessary  to 
carry  on  the  business,  whether  represented  in  tangible  or  intangible 
property,  in  Ohio,  possessed  a  value  in  combination  and  from  use 
in  connection  with  the  property  and  capital  elsewhere,  which  could 
as  rightfully  be  recognized  in  the  assessment  for  taxation  in  the  in- 
stance of  these  companies  as  the  others. 

We  repeat  that  while  the  unity  which  exists  may  not  be  a  physi- 
cal unity,  it  is  something  more  than  a  mere  unity  of  ownership. 
It  is  a  unity  of  use,  not  simply  for  the  convenience  or  pecuniary 
profit  of  the  owner,  but  existing  in  the  very  necessities  of  the  case  — 
resulting  from  the  very  nature  of  the  business. 

The  same  party  may  own  a  manufacturing  establishment  in  one 
State  and  a  store  in  another  and  may  make  profit  by  operating  the 
two,  but  the  work  of  each  is  separate.  The  value  of  the  factory  in 
itself  is  not  conditioned  on  that  of  the  store  or  vice  versa,  nor  is  the 
value  of  the  goods  manufactured  and  sold  affected  thereby.  The 
connection  between  the  two  is  merely  accidental  and  growing  out 
of  the  unity  of  ownership.  But  the  property  of  an  express  company 
distributed  through  different  States  is  as  an  essential  condition  of 
the  business  united  in  a  single  specific  use.  It  constitutes  but  a 
single  plant,  made  so  by  the  very  character  and  necessities  of  the 
business. 

It  is  this  which  enabled  the  companies  represented  here  to  charge 
and  receive  within  the  State  of  Ohio  for  the  year  ending  May  1,  1895, 
$282,181,  $358,519  and  $275,446,  respectively,  on  the  basis,  accord- 
ing to  their  respective  returns,  of  $42,065,  $28,438  and  $23,430,  of 
personal  property  owned  in  that  State,  returns  which  confessedly  do 
not,  however,  take  into  account  contracts  for  transportation  and 
accompanying  facilities. 

Considered  as  distinct  subjects  of  taxation,  a  horse  is,  indeed,  a 
horse;  a  wagon,  a  wagon;  a  safe,  a  safe;  a  pouchy  a  pouch:  but  how 


852  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

is  it  that  $23,430  worth  of  horses,  wagons,  safes  and  pouches  pro- 
duces $275,446  in  a  single  year?  Or  $28,438  worth,  $358,519? 
The  answer  is  obvious. 

Reliance  seems  to  be  placed  by  counsel  on  the  observation  of  Mr. 
Justice  Lamar,  in  Pacific  Express  Company  v.  Seibert,  142  U.  S. 
339,  354,  that  ''express  companies,  such  as  are  defined  by  this  act, 
have  no  tangible  property,  of  any  consequence,  subject  to  taxation 
under  the  general  laws.  There  is,  therefore,  no  way  by  which 
they  can  be  taxed  at  all  unless  by  a  tax  upon  their  receipts  for 
business  transacted."  But  the  reference  was  to  the  legislation  of 
the  State  of  Missouri,  and  the  scheme  of  taxation  under  considera- 
tion here  was  not  involved  in  any  manner. 

[After  quoting  the  State  statute  which  is  sufficiently  described 
elsewhere  and  giving  extracts  from  the  opinion  of  the  Supreme 
Court  of  Ohio  in  State  v.  Jones,  51  Ohio  St.  492,  upholding  the 
"Nichols  Law,"  and  from  the  opinion  in  this  case  in  the  Circuit 
Court  of  Appeals,  Sanford  v.  Foe,  37  U.  S.  App.  378,  also  upholding 
the  statute,  the  court  continues.] 

The  line  of  reasoning  thus  pursued  is  in  accordance  with  the  deci- 
sions of  this  court  already  cited.  Assuming  the  proportion  of  cap- 
ital employed  in  each  of  several  States  through  which  such  a 
company  conducts  its  operations  has  been  fairly  ascertained,  while 
taxation  thereon,  or  determined  with  reference  thereto,  may  be  said 
in  some  sense  to  fall  on  the  business  of  the  company,  it  is  only  in- 
directly. The  taxation  is  essentially  a  property  tax,  and,  as  such, 
not  an  interference  with  interstate  commerce. 

Nor,  in  this  view,  is  the  assessment  on  property  not  within  the 
jurisdiction  of  the  taxing  authorities  of  the  State  and  for  that  reason 
amounting  to  a  taking  of  property  without  due  process  of  law.  The 
property  taxed  has  its  actual  situs  in  the  State,  and  is,  therefore,  sub- 
ject to  the  jurisdiction,  and  the  distribution  among  the  several 
counties  is  a  matter  of  regulation  by  the  State  legislature.  Pull- 
man's Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  22  ;  State 
Railroad  Tax  Cases,  92  U.  S.  575;  Delaware  Railroad  Tax,  18  ^Yall. 
206;  Erie  Railroad  u.  Pennsylvania,  21  Wall.  492;  Columbus  South- 
ern Railway  v.  Wright,  151  U.  S.  470. 

In  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  the  rule  is  consid- 
ered that  personal  property  may  be  separated  from  its  owner  and  he 
may  be  taxed,  on  its  account,  at  the  place  where  it  is,  although  not 
the  place  of  his  own  domicil,  and  even  if  he  is  not  a  citizen  or  a 
resident  of  the  State  which  imposes  the  tax;  and  the  distinction 
between  ships  and  vessels  and  other  personal  property  is  pointed 
out.  The  authorities  are  largely  examined  and  need  not  be  gone 
over  again. 

There  is  here  no  attempt  to  tax  property  having  a  situs  outside  of 
the  State,  but  only  to  place  a  just  value  on  that  within.  Presump- 
tively all  the  property  of  the  corporation  or  company  is  held  and 


SECT.  11.  b.  2.]       ADAMS  EXPRESS  CO.  V.  OHIO  STATE  AUDITOR.  353 

used  for  the  purposes  of  its  business,  and  the  value  of  its  capital 
stock  and  bonds  is  the  value  of  only  that  property  so  held  and 
used. 

Special  circumstances  might  exist,  as  indicated  in  Pittsburgh, 
Cincinnati,  &c.  Railway  Co.  v.  Backus,  154  U.  S.  421,  443,  which 
would  require  the  value  of  a  portion  of  the  property  of  an  express 
company  to  be  deducted  from  the  value  of  its  plant  as  expressed  by 
the  sum  total  of  its  stock  and  bonds  before  any  valuation  by  mileage 
could  be  properly  arrived  at,  but  the  difficulty  in  the  cases  at  bar  is 
that  there  is  no  showing  of  any  such  separate  and  distinct  property 
which  should  be  deducted,  and  its  existence  is  not  to  be  assumed. 
It  is  for  the  companies  to  present  any  special  circumstances  which 
may  exist,  and,  failing  their  doing  so,  the  presumption  is  that  all 
their  property  is  directly  devoted  to  their  business,  which  being  so, 
a  fair  distribution  of  its  aggregate  value  would  be  upon  the  mileage 
basis. 

The  States  through  which  the  companies  operate  ought  not  to  be 
compelled  to  content  themselves  with  a  valuation  of  separate  pieces 
of  property  disconnected  from  the  plant  as  an  entirety,  to  the  pro- 
portionate part  of  which  they  extend  protection,  and  to  the  dividends 
of  whose  owners  their  citizens  contribute.  • 

It  is  not  contended  that  notice  of  the  time  and  place  of  the  meet- 
ings of  the  board  was  not  afforded  or  that  the  companies  were  denied 
the  opportunity  to  appear  and  submit  such  proofs,  explanations, 
suggestions  and  arguments  with  reference  to  the  assessment  as  they 
desired. 

We  are,  also,  unable  to  conclude  that  the  classification  of  express 
companies  with  railroad  and  telegraph  companies  as  subject  to  the 
unit  rule,  denies  the  equal  protection  of  the  laws.  That  provision 
in  the  Fourteenth  Amendment  "  was  not  intended  to  prevent  a  State 
from  adjusting  its  system  of  taxation  in  all  proper  and  reasonable 
ways,"  nor  was  that  amendment  "intended  to  compel  a  State  to 
adopt  an  iron  rule  of  equal  taxation."  Bell's  Gap  Railroad  v.  Penn- 
sylvania, 134  U.  S.  232. 

In  Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339,  351,  in  which  a 
tax  on  gross  receipts  of  express  companies  in  the  State  of  jMissouri 
was  sustained,  Mr.  Justice  Lamar,  speaking  for  the  court,  well 
says: 

"This  court  has  repeatedly  laid  down  the  doctrine  that  diversity 
of  taxation,  both  with  respect  to  the  amount  imposed  and  the  various 
species  of  property  selected  either  for  bearing  its  burdens  or  for 
being  exempt  from  them,  is  not  inconsistent  with  a  perfect  unifor- 
mity and  equality  of  taxation  in  the  proper  sense  of  those  terms; 
and  that  a  system  which  imposes  the  same  tax  upon  every  species  of 
property,  irrespective  of  its  nature  or  condition  or  class,  will  be  de- 
structive of  the  principle  of  uniformity  and  equality  in  taxation  and 
of  a  just  adaptation  of  property  to  its  burdens." 

23 


354  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

And  see  Kentucky  Eailroad  Tax  Cases,  115  U.  S.  321;  Home  In- 
surance Co.  V.  New  York,  134  U.  S.  594. 

The  policy  pursued  in  Oliio  is  to  classify  property  for  taxation, 
when  the  nature  of  the  property,  or  its  use,  or  the  nature  of  the 
business  engaged  in,  requires  classification,  in  the  judgment  of  the 
legislature,  in  order  to  secure  equality  of  burden ;  and  property  of 
different  sorts  is  classified  under  various  statutory  provisions  for  the 
purposes  of  assessment  and  taxation.  The  state  constitution  re- 
quires all  property  to  be  taxed  by  a  uniform  rule  and  according  to 
its  true  value  in  money,  and  it  was  held  by  the  Supreme  Court  of 
Ohio  in  State  v.  Jones  that  the  Nichols  law  did  not  violate  that 
requirement. 

In  Wagoner  v.  Loomis,  37  Ohio  St.  571,  it  was  ruled  that :  "  Statu- 
tory provisions,  whereby  different  classes  of  property  are  listed  and 
valued  for  taxation  in  and  by  different  modes  and  agencies,  are  not 
necessarily  in  conflict  with  the  provisions  of  the  Constitution,  which 
require  all  property  to  be  taxed  by  a  uniform  rule  and  according  to 
its  true  value  in  money."  And  the  court  said:  "A  faithful  execu- 
tion of  the  different  provisions  of  the  statutes  would  place  upon  the 
duplicate  for  taxation  all  the  taxable  property  of  the  State,  whether 
bank  stocks  or  other  personal  property  or  real  estate,  according  to 
its  true  value  in  money;  and  the  equality  required  by  the  constitu- 
tion has  no  other  test." 

The  constitutional  test  was  held  to  be  complied  with,  whatever 
the  mode,  if  the  result  of  the  assessment  was  that  the  property  was 
assessed  at  its  true  value  in  money. 

Considering,  as  we  do,  that  the  unit  rule  may  be  applied  to  express 
companies  without  disregarding  any  other  Federal  restriction,  we 
think  it  necessarily  follows  that  this  law  is  not  open  to  the  objection 
of  denying  the  equal  protection  of  the  laws. 

We  have  said  nothing  in  relation  to  the  contention  that  these 
valuations  were  excessive.  The  method  of  appraisement  prescribed 
by  the  law  was  pursued  and  there  were  no  specific  charges  of  fraud. 
The  general  rule  is  well  settled  that  "  whenever  a  question  of  fact  is 
thus  submitted  to  the  determination  of  a  special  tribunal,  its  deci- 
sion creates  something  more  than  a  mere  presumption  of  fact,  and  if 
such  determination  comes  into  inquiry  before  the  courts  it  cannot 
be  overthrown  by  evidence  going  only  to  show  that  the  fact  was 
otherwise  than  as  so  found  and  determined."  Pittsburgh,  Cincin- 
nati, &c.  Eailway  Co.  v.  Backus,  154  U.  S.  434 ;  Western  Union 
Telegraph  Co.  v.  Taggart,  163  U.  S.  1.  Decrees  affirmed} 

1  Mr.  .Justice  White  delivered  a  dissentiiif^  opinion,  in  which  Mr.  Jcsticb 
Field,  Mr.  Justice  Harlan,  and  Mr.  Justice  Brown  concurred. 

[For  the  case  of  Allen  v.  Pullmax  Palace  Car  Co.,  191  U.  S.  171, 
relating  to  the  taxation  of  sleeping  cars  employed  in  interstate  com- 
merce, see  Appendix  A,  p.        .] 


SECT.  II.  b.  3.]  RAILROAD    COMPANY   V.    FULLER.  355 

3^6 


3.   Exercise  of  Police  Power. 

RAILROAD   COMPANY  v.  FULLER. 
17  Wallace,  560.     1873. 


Sir 


[Plaintiff  in  error  was  sued  in  the  State  court  of  Iowa  for  the 
penalty  provided  by  the  State  statute  for  charging  a  higher  rate  for^>vp 
transportation  of  freight  than  that  posted  as  required  by  the  statute. 
Judgment  was  rendered  against  the  company,  which  was  aihrmed  in 
the  Supreme  Court  of  the  State,  and  the  case  is  brought  by  writ  of 
error  to  this  court.] 

Mr.  Justick  Swayne  delivered  the  opinion  of  the  court. 

The  Constitution  gives  to  Congress  the  power  "  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States,  and  with 
the  Indian  tribes." 

The  statute  complained  of  provides  — 

That  each  railroad  company  shall,  in  the  month  of  September, 
annually,  fix  its  rates  for  the  transportation  of  passengers  and  of 
freights  of  different  kinds  ; 

That  it  shall  cause  a  printed  copy  of  such  rates  to  be  put  up  at  all 
its  stations  and  depots,  and  cause  a  copy  to  remain  posted  during  the 
year; 

That  a  failure  to  fulfil  these  requirements,  or  the  charging  of  a 
higher  rate  than  is  posted,  shall  subject  the  offending  company  to 
the  payment  of  the  penalty  prescribed. 

In  all  other  respects  there  is  no  interference.  No  other  constraint 
is  imposed.  Except  in  these  particulars,  the  company  may  exercise 
all  its  faculties  as  it  shall  deem  proper.  No  discrimination  is  made 
between  local  and  interstate  freights,  and  no  attempt  is  made  to  con- 
trol the  rates  that  may  be  charged.  It  is  only  required  that  the  rates 
shall  be  fixed,  made  public,  and  honestly  adhered  to.  In  this  there 
is  nothing  unreasonable  or  onerous.  The  public  welfare  is  promoted 
without  wrong  or  injury  to  the  company.  The  statute  was  doubtless 
deemed  to  be  called  for  by  the  interests  of  the  community  to  be 
affected  by  it,  and  it  rests  upon  a  solid  foundation  of  reason  and 
justice. 

It  is  not,  in  the  sense  of  the  Constitution,  in  any  wise  a  regulation 
of  commerce.  It  is  a  police  regulation,  and  as  such  forms  "a  portion 
of  the  immense  mass  of  legislation  which  embraces  everything  within 
the  territory  of  a  State  not  surrendered  to  the  General  Government, 
all  which  can  be  most  advantageously  exercised  by  the  States  them- 
selves."    Gibbons  v.  Ogden,  9  Wheat.  1. 

This  case  presents  a  striking  analogy  to  a  prominent  feature  in  the 
case  of  The  P>rig  James  Gray  v.  The  Ship  John  Fraser,  21  How.  184. 
There  the  city  authorities  of  Charleston  had  passed  an  ordinance 


356  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

prescribing  where  a  vessel  should  lie  in  the  harbor,  what  light  she 
should  show  at  night,  and  making  other  similar  regulations.  It  was 
objected  that  these  requirements  were  regulations  of  commerce  and, 
therefore,  void.     This  court  affirmed  the  validity  of  the  ordinance. 

In  the  complex  system  of  polity  which  exists  in  this  country  the 
powers  of  government  may  be  divided  into  four  classes  :  — 
'  Those  which  belong  exclusively  to  the  States. 

Those  which  belong  exclusively  to  the  National  Government. 

Those  which  may  be  exercised  concurrently  and  independently  by 
both. 

■  And  those  which  may  be  exercised  by  the  States  but  only  until 
Congress  shall  see  fit  to  act  upon  the  subject. 

The  authority  of  the  State  then  retires  and  lies  in  abeyance  until 
the  occasion  for  its  exercise  shall  recur.  Ex  parte  McNiel,  13  Wall. 
240. 

Commerce  is  traffic,  but  it  is  much  more.  It  embraces  also  trans- 
portation by  land  and  water,  and  all  the  means  and  appliances  nec- 
essarily employed  in  carrying  it  on.  2  Story  on  the  Constitution, 
§§  lOGl,  1062. 

The  authority  to  regulate  commerce,  lodged  by  the  Constitution  in 
Congress,  is  in  part  within  the  last  division  of  the  powers  of  govern- 
ment above  mentioned.  Some  of  the  rules  prescribed  in  the  exercise 
'of  that  power  must  from  the  nature  of  things  be  uniform  throughout 
the  country.  To  that  extent  the  authority  itself  must  necessarily  be 
exclusive,  as  much  so  as  if  it  had  been  declared  so  to  be  by  the'Con- 
stitution  in  express  terms. 

Others  may  well  vary  with  the  varying  circumstances  of  different 
localities.  Where  a  stream  navigable  for  the  purposes  of  foreign  or 
interstate  commerce  is  obstructed  by  the  authority  of  a  State,  such 
exercise  of  authority  may  be  valid  until  Congress  shall  see  fit  to 
intervene.  The  authority  of  Congress  in  such  cases  is  paramount 
and  absolute,  and  it  may  compel  the  abatement  of  the  obstruction 
whenever  it  shall  deem  it  proper  to  do  so. 

If  the  requirements  of  the  statute  here  in  question  w^ere,  as  con- 
tended by  the  counsel  for  the  plaintiff  in  error,  regulations  of  com- 
meree,  the  question  would  arise,  whether,  regarded  in  the  light  of 
the  authorities  referred  to,  and  of  reason  and  principle,  they  are  not 
regulations  of  such  a  character  as  to  be  valid  until  superseded  by 
the  paramount  action  of  Congress.  But  as  we  are  unanimously  of 
the  opinion  that  they  are  merely  police  regulations,  it  is  unnecessary 
to  pursue  the  subject.  Judgment  affirmed. 


y^/-^- 


SECT.  II.  b.  3.]       LAKE    SHORE,   ETC.    RAILWAY   CO.    V.    OHIO. 


LAKE   SHORE   AXD  MICHIGAN   SOUTHERN   RAILWAY 
COMPANY  y.  OHIO. 

173  United  States,  285.     1899. 

Mr.  Justice  Haiilax  delivered  the  opinion  of  the  court. 

[The  action  was  commenced  against  plaintiff  in  error  before  a  jus- 
tice of  the  peace  in  Ohio  to  recover  a  penalty  under  statute  (Rev. 
Stat,  of  Ohio,  §  3320),  for  not  stopping  three  trains  each  way  at  West 
Cleveland.] 

In  the  argument  at  the  bar  as  well  as  in  the  printed  brief  of  coun- 
sel, reference  was  made  to  the  numerous  cases  in  this  court  adjudging 
that  what  are  called  the  police  powers  of  the  States  were  not  surren- 
dered to  the  General  Government  wlien  the  Constitution  was  ordained 
but  remained  with  the  several  States  of  the  Union.  And  it  was 
asserted  with  much  confidence  that  while  regulations  adopted  by 
competent  local  authority  in  order  to  protect  or  promote  the  public 
health,  the  public  morals,  or  the  public  safety  have  been  sustained 
where  such  regulations  only  incidentally  affected  commerce  among 
the  States,  the  principles  announced  in  former  adjudications  condemn 
as  repugnant  to  the  Constitution  of  the  United  States  all  local  regula- 
tions that  affect  interstate  commerce  in  any  degree  if  established 
merely  to  subserve  the  jiublic  convenience. 

One  of  the  cases  cited  in  support  of  this  position  is  Hennington 
V.  Georgia,  163  U.  S.  299,  303,  308,  317,  which  involved  the  validity 
of  a  statute  of  Georgia  providing  that  "  if  any  freight  train  shall  be 
run  on  any  railroad  in  this  State  on  the  Sabbath  Day  (known  as  Sun- 
day), the  superintendent  of  such  railroad  company,  or  the  officer 
having  charge  of  the  business  of  that  department  of  the  railroad, 
shall  be  liable  for  indictment  for  a  misdemeanor  in  each  county 
through  which  such  trains  shall  pass,  and  on  conviction  shall  be 
punished.  .  .  .  Provided,  always,  That  whenever  any  train  on  any 
railroad  in  this  State,  having  in  such  train  one  or  more  cars  loaded 
with  live  stock,  which  train  shall  be  delayed  beyond  schedule  time, 
shall  not  be  required  to  lay  over  on  the  line  of  road  or  route  during 
Sunday,  but  may  run  on  to  the  point  where,  by  due  course  of  ship- 
ment or  consignment,  the  next  stock  pen  on  the  route  may  be,  where 
said  animals  may  be  fed  and  watered,  according  to  the  facilities 
usually  afforded  for  such  transportation.  And  it  shall  be  lawful  for 
the  freight  trains  on  the  different  railroads  in  this  State  running  over 
said  roads  on  Saturday  night,  to  run  through  to  destination  :  Provided, 
The  time  of  arrival,  according  to  the  schedule  by  which  the  train  or 
trains  started  on  the  trip,  shall  not  be  later  than  eight  o'clock  on  Sun- 
day morning."  This  court  said  :  "  The  well-settled  rule  is,  that  if  a 
statute  purporting  to  have  been  enacted  to  protect  the  public  health, 
the  public  morals,  or  the  public  safety  has  no  real  or  substantial  relar 


o58  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tion  to  those  objects,  or  is  a  palpable  invasion  of  rights  secured  by 
the  fundamental  law,  it  is  the  duty  of  courts  to  so  adjudge,  and 
thereby  give  etfect  to  the  Constitution." 

The  contention  in  that  case  was  that  the  running  of  railroad  cars 
laden  with  interstate  freight  was  committed  exclusively  to  the  con- 
trol and  supervision  of  the  National  Government;  and  that  although 
Congress  had  not  taken  any  affirmative  action  upon  the  subject,  State 
legislation  interrupting  interstate  commerce  even  for  a  limited  time 
only,  whatever  might  be  its  object  and  however  essential  such  legis- 
lation might  be  for  the  comfort,  peace,  or  safety  of  the  people  of  the 
State,  was  a  regulation  of  interstate  commerce  forbidden  by  the  Con- 
stitution of  the  United  States. 

After  observing  that  the  argument  in  behalf  of  the  defendant  rested 
upon  the  erroneous  assumption  that  the  statute  of  Georgia  was  such 
a  regulation  of  interstate  commerce  as  was  forbidden  by  the  Consti- 
tution without  reference  to  affirmative  action  by  Congress,  and  not 
merely  a  statute  enacted  by  the  State  under  its  police  power,  and 
"which,  although  in  some  degree  affecting  interstate  cominerce,  did 
not  go  beyond  the  necessities  of  the  case,  and  therefore  was  valid,  at 
least  until  Congress  intervened,  this  court,  upon  a  review  of  the  ad- 
judged cases,  said :  "  These  authorities  make  it  clear  that  the  legis- 
lative enactments  of  the  States,  passed  under  their  admitted  police 
powers,  and  having  a  real  relation  to  the  domestic  peace,  order,  health, 
and  safety  of  their  people,  but  which,  by  their  necessary  operation, 
affect  to  some  extent  or  for  a  limited  time  the  conduct  of  commerce 
among  the  States,  are  yet  not  invalid  by  force  alone  of  the  grant  of 
power  to  Congress  to  regulate  such  commerce;  and,  if  not  obnoxious 
to  some  other  constitutional  provision  or  destructive  of  some  right 
secured  by  the  fundamental  law,  are  to  be  respected  in  the  courts  of 
the  Union  until  they  are  superseded  and  displaced  by  some  act  of 
Congress  passed  in  execution  of  the  power  granted  to  it  by  the  Con- 
stitution. Local  laws  of  the  character  mentioned  have  their  source 
in  the  powers  which  the  States  reserved  and  never  surrendered  to 
Congress,  of  providing  for  the  public  health,  the  public  niovals,  and 
the  public  safety,  and  are  not,  within  the  meaning  of  the  Constitu- 
tion, and  considered  in  their  own  nature,  regulations  of  interstate 
commerce  simply  because,  for  a  limited  time  or  to  a  limited  extent, 
they  cover  the  field  occupied  by  those  engaged  in  such  commerce. 
The  statute  of  Georgia  is  not  directed  against  interstate  commerce. 
It  establishes  a  rule  of  civil  conduct  applicable  alike  to  all  freight 
trains,  domestic  as  well  as  interstate.  It  applies  to  the  transportation 
of  interstate  freight  the  same  rule  precisely  that  it  applies  to  the 
transportation  of  domestic  freight."  Again:  "We  are  of  opinion 
that  such  a  law,  although  in  a  limited  degree  affecting  interstate  com- 
merce, is  not  for  that  reason  a  needless  intrusion  upon  the  domain  of 
Federal  jurisdiction,  nor  strictly  a  regulation  of  interstate  commerce, 
but,  considered  in  its  own  nature,  is  an  ordinary  police  regulation  de- 


SECT.  II.  b.  3.]       LAKE   SHORE,    ETC.    RAILWAY   CO.    V.   OHIO.  359 

signed  to  secure  the  well-being  and  to  promote  the  general  welfare  of 
the  people  within  the  State  by  which  it  was  established,  and  therefore 
not  invalid  by  force  alone  of  the  Constitution  of  the  United  States." 

It  is  insisted  by  counsel  that  these  and  observations  to  the  same 
effect  in  different  cases  show  that  the  police  powers  of  the  States, 
when  exerted  with  reference  to  matters  more  or  less  connected  with 
interstate  commerce,  are  restricted  in  their  exercise,  so  far  as  the 
National  Constitution  is  concerned,  to  regulations  pertaining  to  the 
health,  morals,  or  safety  of  the  public,  and  do  not  embrace  regulations 
designed  merely  to  promote  the  public  convenience. 

This  is  an  erroneous  view  of  the  adjudications  of  this  court.  While 
cases  to  which  counsel  refer  involved  the  validity  of  State  laws  having 
reference  directly  to  the  public  health,  the  public  morals,  or  the  i)ub- 
lic  safety,  in  no  one  of  them  was  there  any  occasion  to  determine 
whether  the  police  powers  of  the  States  extended  to  regulations 
incidentally  affecting  interstate  commerce  but  which  were  designed 
only  to  promote  the  public  convenience  or  the  general  welfare. 
There  are,  however,  numerous  decisions  by  this  court  to  the  effect 
that  the  States  may  legislate  with  reference  simply  to  the  public 
convenience,  subject  of  course  to  the  condition  that  such  legislation 
be  not  inconsistent  with  the  National  Constitution,  nor  with  any  act 
of  Congress  passed  in  pursuance  of  that  instrument,  nor  in  derogation 
of  any  right  granted  or  secured  by  it.  As  the  question  now  presented 
is  one  of  great  importance,  it  will  be  well  to  refer  to  some  cases  of 
the  latter  class. 

[Cases  are  referred  to  which  relate  to  obstructions  in  navigable 
streams.     They  have  heretofore  been  sufficiently  stated.] 

In  Western  Union  Telegraph  Co.  v.  James,  1G2  U.  S.  650,  G62,  the 
question  was  presented  whether  a  State  enactment  requiring  tele- 
graph companies  with  lines  of  wires  wholly  or  partly  within  the 
State  to  receive  telegrams,  and  on  payment  of  the  charges  thereon  to 
deliver  them  with  due  diligence,  was  not  a  regulation  of  interstate 
commerce  when  applied  to  interstate  telegrams.  We  held  that  such 
enactments  did  not  in  an}'  just  sense  regulate  interstate  comnierc?. 
It  was  said  in  that  case :  "  While  it  is  vitally  important  that  com- 
merce between  the  States  should  l)e  unembarrassed  by  vexatious  State 
regulations  regarding  it,  yet,  on  the  other  hand,  there  are  many  occa- 
sions where  the  police  power  of  the  State  can  be  properly  exercised 
to  insure  a  faithful  and  prompt  performance  of  duty  within  the 
limits  of  the  State  upon  the  part  of  those  who  are  engaged  in  inter- 
state commerce.  We  think  the  statute  in  question  is  one  of  that 
class,  and  in  the  absence  of  any  legislation  by  Congress,  the  statute  is 
a  valid  exercise  of  the  power  of  the  State  over  the  subject." 

So,  in  Richmond  &  Alleghany  Railroad  v.  Patterson  Tobacco  Co., 
169  U.  S.  311,  315,  it  was  adjudged  that  a  statute  of  Virginia  defining 
the  obligations  of  carriers  who  accepted  for  transportation  anything 
directed  to  points  of  destination  beyond  the  termini  of  their  own  lines 


360  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IT. 

or  routes,  was  not,  in  its  application  to  interstate  business,  a  regula- 
tion of  interstate  commerce  within  the  meaning  of  the  Constitution. 
This  court  said:  "Of  course,  in  a  latitudinarian  sense  any  restriction 
as  to  the  evidence  of  a  contract,  relating  to  interstate  couimerce,  may 
be  said  to  be  a  limitation  on  the  contract  itself.  But  this  remote 
effect,  resulting  from  the  lawful  exercise  by  a  State  of  its  power 
to  determine  the  form  in  which  contracts  may  be  proven,  does  not 
amount  to  a  regulation  of  interstate  commerce."  And  the  court 
cited  in  support  of  its  conclusion  the  case  of  Chicago,  Milwaukee,  &c. 
Kailway  Co.  v.  Solan,  169  U.  S.  133,  137,  which  involved  the  validity 
of  State  regulations  as  to  the  liability  of  carriers  of  passengers,  and 
in  which  it  was  said :  "  They  are  not  in  themselves  regulations  of  in- 
terstate commerce,  although  they  control  in  some  degree  the  conduct 
and  liability  of  those  engaged  in  such  commerce.  So  long  as  Congress 
has  not  legislated  upon  the  particular  subject,  they  are  rather  to  be 
regarded  as  legislation  in  aid  of  such  commerce,  and  as  a  rightful 
exercise  of  the  police  power  of  the  State  to  regulate  the  relative 
rights  and  duties  of  all  persons  and  corporations  within  its  limits." 

Now,  it  is  evident  that  these  cases  had  no  reference  to  the  health, 
morals,  or  safety  of  the  people  of  the  State,  but  only  to  the  public 
convenience.  They  recognized  the  fundamental  principle  that  out- 
side of  the  field  directly  occupied  by  the  General  Government  under 
the  powers  granted  to  it  by  the  Constitution,  all  questions  arising 
within  a  State  that  relate  to  its  internal  order,  or  that  involve  the 
public  convenience  or  the  general  good,  are  primarily  for  the  deter- 
mination of  the  State,  and  that  its  legislative  enactments  relating  to 
those  subjects,  and  which  are  not  inconsistent  with  the  State  consti- 
tution, are  to  be  respected  and  enforced  in  the  courts  of  the  Union  if 
they  do  not  by  their  operation  directly  entrench  upon  the  authority 
of  the  United  States  or  violate  some  right  protected  by  the  National 
Constitution.  The  power  here  referred  to  is  —  to  use  the  words  of 
Chief  Justice  Shaw  —  the  power  "to  make,  ordain,  and  establish  all 
manner  of  wholesome  and  reasonable  laws,  statutes,  and  ordinances, 
either  with  penalties  or  without,  not  repugnant  to  the  Constitution,  as 
they  shall  judge  to  be  for  the  good  and  welfare  of  the  Commonwealth 
and  of  the  subjects  of  the  same."  Commonwealth  v.  Alger,  7  Cushing, 
63,  85.  Mr.  Cooley  well  said :  "  It  cannot  be  doubted  that  there  is  ample 
power  in  the  legislative  department  of  the  State  to  adopt  all  neces- 
sary legislation  for  the  purpose  of  enforcing  the  obligations  of  railway 
companies  as  carriers  of  persons  and  goods  to  accommodate  the  public 
impartially,  and  to  make  every  reasonable  provision  for  carrying  with 
safety  and  expedition."  Cooley's  Const.  Lim.  (6th  ed.),  p.  715.  It 
may  be  that  such  legislation  is  not  within  the  "  police  power  "  of  a 
State,  as  those  words  have  been  sometimes,  although  inaccuratel}',  used. 
But  in  our  opinion  the  power,  whether  called  police,  governmental  or 
legislative,  exists  in  each  State,  by  appropriate  enactments  not  for- 
bidden by  its  own  constitution  or  by  the  Constitution  of  the  United 


SECT.  II.  b.  3.]      LAKE   SHORE,   ETC.    RAILWAY   CO.    V.    OHIO.  861 

States,  to  regulate  the  relative  rights  and  duties  of  all  persons  and 
corporations  within  its  jurisdiction,  and  therefore  to  provide  for  the 
public  convenience  and  the  public  good.  This  power  in  the  States  is 
entirely  distinct  from  any  power  granted  to  the  General  Government, 
although  when  exercised  it  may  sometimes  reach  subjects  over  which 
national  legislation  can  be  constitutionally  extended.  When  Con- 
gress acts  with  reference  to  a  matter  confided  to  it  by  the  Constitu- 
tion, then  its  statutes  displace  all  confiicting  local  regulations  touching 
that  matter,  although  such  regulations  may  have  been  established  in 
pursuance  of  a  power  not  surrendered  by  the  States  to  the  General 
Government.  Gibbons  v.  Ogden,  9  Wheat.  1,  210 ;  Sinnot  v.  Daven- 
port, 22  How.  227,  243  ;  Missouri,  Kansas  &  Texas  Railway  v.  Haber, 
169  U.  S.  613,  626. 

It  is  not  contended  that  the  statute  in  question  is  repugnant  to  the 
Constitution  of  the  United  States  when  applied  to  railroad  trains 
carrying  passengers  between  points  within  the  State  of  Ohio.  But 
the  contention  is  that  to  require  railroad  companies,  even  those 
organized  under  the  laws  of  Ohio,  to  stop  their  trains  or  any  of  them 
carrying  interstate  passengers  at  a  particular  place  or  places  in  the 
State  for  a  reasonable  time,  so  directly  affects  commerce  among  the 
States  as  to  bring  the  statute,  whether  Congress  has  acted  or  not  on 
the  same  subject,  into  conflict  with  the  grant  in  the  Constitution  of 
power  to  regulate  such  commerce.  That  such  a  regulation  may  be 
in  itself  reasonable  and  may  promote  the  public  convenience  or  sub- 
serve the  general  welfare  is,  according  to  the  argument  made  before 
us,  of  no  consequence  whatever ;  for,  it  is  said,  a  State  regulation 
which  to  any  extent  or  for  a  limited  time  only  interrupts  the  absolute, 
continuous  freedom  of  interstate  commerce  is  forbidden  by  the  Con- 
stitution, although  Congress  has  not  legislated  upon  the  particular 
subject  covered  by  the  State  enactment.  If  these  broad  propositions 
are  approved,  it  will  be  difficult  to  sustain  the  numerous  judgments 
of  this  court  upholding  local  regulations  which  in  some  degree  or 
only  incidentally  affected  commerce  among  the  States,  but  which 
were  adjudged  not  to  be  in  themselves  regulations  of  interstate  com- 
merce, but  within  the  police  powers  of  the  States  and  to  be  respected 
so  long  as  Congress  did  not  itself  cover  the  subject  by  legislation. 
Cooley  V.  Board,  &c.,  12  How.  299,  320;  Sherlock  v.  Ailing,  93 
U.  S.  99,  104;  Morgan  v.  Louisiana,  118  U.  S.  455,  463;  Smith  /•. 
Alabama,  124  U.  S.  465;  Nashville,  Chattanooga,  &c.  Railway  v. 
Alabama,  128  U.  S.  96,  100 ;  Henningtou  v.  Georgia,  above  cited ; 
Missouri,  Kansas,  and  Texas  Railway  v.  Haber,  above  cited ;  and 
N.  Y.,  N.  H.,  &  H.  Railroad  Co.  v.  New  York,  165  U.  S.  628,  631, 
632,  were  all  cases  involving  State  regulations  more  or  less  affecting 
interstate  or  foreign  commerce,  but  which  were  sustained  upon 
the  ground  that  they  were  not  directed  against  nor  were  direct 
burdens  upon  interstate  or  foreign  commerce ;  and  having  been 
enacted  only  to  protect  the  public  safety,  the  public  health  or  the 


362  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

public  morals,  and,  having  a  real,  substantial  relation  to  the  public 
ends  intended  to  be  accomplished  thereby,  were  not  to  be  deemed  ab- 
solutely forbidden  because  of  the  mere  grant  of  power  to  Congress  to 
regulate  interstate  and  foreign  commerce,  but  to  be  regarded  as  only 
incidentally  affecting  such  commerce  and  valid  until  superseded  by 
legislation  of  Congress  on  the  same  subject. 

In  the  case  last  cited  —  N.  Y.,  N.  H.,  &  H.  Railroad  Co.  v.  Xew 
York  —  the  question  was  as  to  the  validity,  when  applied  to  interstate 
railroad  trains,  of  a  statute  of  New  York  forbidding  the  heating  of 
passenger  cars  in  a  particular  mode.  This  court  said  :  "  According 
to  numerous  decisions  of  this  court  sustaining  the  validity  of  State 
regulations  enacted  under  the  police  powers  of  the  State,  and  which 
incidentally  affected  commerce  among  the  States  and  with  foreign 
nations,  it  was  clearly  competent  for  the  State  of  New  York,  in  the 
absence  of  national  legislation  covering  the  subject,  to  forbid  under 
penalties  the  heating  of  passenger  cars  in  that  State  by  stoves  or  fur- 
naces kept  inside  the  cars  or  suspended  therefrom,  although  such  cars 
may  be  employed  in  interstate  commerce.  While  the  laws  of  the 
States  must  yield  to  acts  of  Congress  passed  in  execution  of  the 
powers  conferred  upon  it  by  the  Constitution,  Gibbons  v.  Ogden,  9 
Wheat.  1,  211,  the  mere  grant  to  Congress  of  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  States  did  not,  of 
itself  and  without  legislation  by  Congress,  impair  the  authority  of 
the  States  to  establish  such  reasonable  regulations  as  were  appro- 
priate for  the  protection  of  the  health,  the  lives,  and  the  safety  of 
their  people.  The  statute  in  question  had  for  its  object  to  protect 
all  persons  travelling  in  the  State  of  New  York  on  passenger  cars 
moved  by  the  agency  of  steam  against  the  perils  attending  a  par- 
ticular mode  of  heating  such  cars.  .  .  .  The  statute  in  question  is 
not  directed  against  interstate  commerce.  Nor  is  it  within  the  neces- 
sary meaning  of  the  Constitution  a  regulation  of  commerce,  although 
it  controls,  in  some  degree,  the  conduct  of  those  engaged  in  such 
commerce.  So  far  as  it  may  affect  interstate  commerce,  it  is  to  be 
regarded  as  legislation  in  aid  of  commerce  and  enacted  under  the 
power  remaining  with  the  State  to  regulate  the  relative  rights  and 
duties  of  all  persons  and  corporations  within  its  limits.  Until  dis- 
placed by  such  national  legislation  as  Congress  may  rightfully  estab- 
lish under  its  power  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States,  the  validity  of  the  statute,  so  far  as  the 
commerce  clause  of  the  Constitution  of  the  United  States  is  concerned, 
cannot  be  questioned." 

Consistently  with  these  doctrines  it  cannot  be  adjudged  that  the 
Ohio  statute  is  unconstitutional.  The  power  of  the  State  by  appro- 
priate legislation  to  provide  for  the  public  convenience  stands  upon 
the  same  ground  precisely  as  its  power  by  appropriate  legislation  to 
protect  the  public  health,  the  public  morals,  or  the  public  safety. 
Whether  legislation  of  either  kind  is  inconsistent  with  any  power 


SECT.  II.  b.  3.]       LAKE    SHORE,    ETC.    RAILWAY   CO.    V.    OHIO.  363 

granted  to  the  General  Government  is  to  be  determined  by  the  same 
rules. 

[Railroad  Co.  v.  Husen,  95  U.  S.  465,  is  referred  to.  See  that  case, 
infra,  p.  367.] 

In  our  judgment  the  assumption  that  the  statute  of  Ohio  was  not 
directed  against  interstate  commerce  but  is  a  reasonable  provision  for 
the  public  convenience,  is  not  unwarranted. 

It  has  been  suggested  that  the  conclusion  reached  by  us  is  not  in 
accord  with  Hall  v.  De  Cuir,  95  U.  S.  485,  488 ;  ^Yabasll,  St.  Louis,  & 
Pacific  Railway  Co.  v.  Illinois,  118  U.  S.  557,  and  Illinois  Central 
Railroad  Company  v.  Illinois,  163  U.  S.  142,  153,  154,  in  each  of 
which  cases  certain  State  enactments  were  adjudged  to  be  inconsist- 
ent with  the  grant  of  power  to  Congress  to  regulate  commerce 
among  the  States. 

In  Hall  V.  De  Cuir  a  statute  of  Louisiana  relating  to  carriers  of 
passengers  within  that  State,  and  which  prohibited  any  discrimination 
against  passengers  on  account  of  race  or  color,  was  held  —  looking  at 
its  necessary  operation  — to  be  a  regulation  of  and  a  direct  burden  on 
commerce  among  the  States,  and  therefore  unconstitutional.    The  de- 
fendant, who  was  sued  for  damages  on  account  of  an  alleged  violation 
of  that  statute,  was  the  master  and  owner  of  a  steamboat  enrolled 
and  licensed  under  the  laws  of  the  United  States  for  the  coasting 
trade,  and  plying  as  a  regular  packet  for  the  transportation  of  freight 
and  passengers  between  New  Orleans,  Louisiana,  and  Vicksburg,  i\Iis- 
sissippi,  touching  at  the  intermediate  landings  both  within  and  with- 
out Louisiana  as  occasion  required.      He  insisted  that  it  was  void  as 
to  him  because  it  directly  regulated  or  burdened  interstate  business. 
The  court  distinctly  recognized  the  principle  upon  which  we  proceed 
in  the  present  case,  that  State  legislation  relating  to  commerce  is  not 
to  be  deemed  a  regulation  of  interstate  commerce  simply  because  it 
may  to  some  extent  or  under  some  circumstances  affect  such  commerce. 
But,  speaking  by  Chief  Justice  Waite,  it  said  :  ''  We  think  it  nmy  be 
safely  said  that  State  legislation  wliich  seems  to  impose  a  direct  bur- 
den upon  interstate  commerce,  or  to  interfere  directly  with  its  free- 
dom, does  encroach  upon  the  exclusive   power  of  Congress.     The 
statute  now  under  consideration,  in  our  opinion,  occupies  that  posi- 
tion.   It  does  not  act  upon  the  business  through  the  local  instruments 
to  be  employed  after  coming  within  the  State,  but  directly  upon  the 
business  as  it  comes  into  the  State  from  without,  or  goes  out  from 
within.     While  it  purports  only  to  control  the  carrier  when  engaged 
within  the  State,  it  must  necessarily  influence  his  conduct  to  some  ex- 
tent in  the  management  of  his  business  throughout  his  entire  voyage. 
His  disposition  of  passengers  taken  up  and  put  down  within  the  State, 
or  taken  up  within  to  be  carried  without,  cannot  but  affect  in  a  greater 
or  less  degree  those  taken  up  without  and  brought  within,  and  some- 
times those  taken  up  and  put  down  without.    A  passenger  in  the  cabin 


364  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

set  apart  for  the  use  of  whites  without  the  State  must,  when  the  boat 
comes  within,  share  the  accommodations  of  that  cabin  with  such  colored 
persons  as  may  come  on  board  afterwards,  if  the  law  is  enforced.     It 
was  to  meet  just  such  a  case  that  the  commercial  clause  in  the  Con- 
stitution was  adopted.    The  river  Mississippi  passes  through  or  along 
the  borders  of  ten  different  States,  and  its  tributaries  reach  many 
more.  .  .  .  No  carrier  of  passengers  can  conduct  his  business  with 
satisfaction  to  himself,  or  comfort  to  those  employing  him,  if  on  one 
side  of  a  State  line  his  passengers,  both  white  and  colored,  must  be 
permitted  to  occupy  the  same  cabin,  and  on  the  other  be  kept  separate. 
Uniformity  in  the  regulations  by  which  he  is  to  be  governed  from  one 
end  to  the  other  of  his  route  is  a  necessity  in  his  business,  and  to 
secure  it  Congress,  which  is  untrammelled  by  State  lines,  has  been 
invested  with  the  exclusive  legislative  power  of  determining  what 
such  regulations  shall  be.     If  this  statute  can  be  enforced  against 
those  engaged  in  interstate  commerce,  it  may  be  as  well  against  those 
engaged  in  foreign  ;    and  the  master  of  a  ship  clearing  from  New 
Orleans  for  Liverpool,  having  passengers  on  board,  would  be  com- 
pelled to  carry  all,  white  and  colored,  in  the  same  cabin  during  his 
passage  down  the  river,  or  be   subject  to  an  action  for  damages, 
'  exemplary  as  well  as  actual,'  by  any  one  who  felt  himself  aggrieved 
because  he  had  been  excluded  on  account  of  his  color."      The  import 
of  that  decision  is  that,  in  the  absence  of  legislation  by  Congress,  a 
State  enactment  may  so  directly  and  materially  burden  interstate 
commerce  as  to  be  in  itself  a  regulation  of  such  commerce.     AVe  can- 
not perceive  that  there  is  any  conflict  between  the  decision  in  tliat 
case  and  that  now  made.      The  Louisiana  statute,  as  interpreted  by 
the  court,  embraced  every  passenger  carrier  coming  into  the  State. 
The  Ohio  statute  does  not  interfere  at  all  with  the  management  of  the 
defendant's  trains  outside  of  the  State,  nor  does  it  apply  to  all  its 
trains  coming  into  the  State.     It  relates  only  to  the  stopping  of  a 
given  number  of  its  trains  within  the  State  at  certain  points,  and  then 
only  long  enough  to  receive  and  let  off  passengers.     It  so  manifestly 
subserves  the  public  convenience,  and  is  in  itself  so  just  and  reason- 
able, as  wholly  to  preclude  the  idea  that  it  was,  as  the  Louisiana  stat- 
ute was  declared  to  be,  a  direct  burden  upon  interstate  commerce,  or 
a  direct  interference  with  its  freedom. 

The  judgment  in  Wabash,  St.  Louis  &  Pacific  Kailway  v.  Illinois 
is  entirely  consistent  with  the  views  herein  expressed.  A  statute  of 
Illinois  was  construed  by  the  Supreme  Court  of  that  State  as  prescrib- 
ing rates  not  simply  for  railroad  transportation  beginning  and  ending 
within  Illinois,  but  for  transportation  between  points  in  Illinois  and 
points  in  other  States  under  contracts  for  continuous  service  covering 
the  entire  route  through  several  States.  Keferring  to  the  principle 
contained  in  the  statute,  this  court  held  that  if  restricted  to  trans- 
portation beginning  and  ending  within  the  limits  of  the  State  it  might 
be  very  just  and  equitable,  but  that  it  could  not  be  applied  to  trans- 


SECT.  II.  b.  3.]      LAKE   SHORE,    ETC.    RAILWAY   CO.    V.    OHIO.  365 

portation  through  an  entire  series  of  States  without  imposing  a  direct 
burden  upon  interstate  commerce  forbidden  by  the  Constitution.  In 
the  case  before  us  there  is  no  attempt  upon  the  part  of  Ohio  to  reguhate 
the  movement  of  the  defendant  company's  interstate  trains  through- 
out the  whole  route  traversed  by  them.  It  applies  only  to  the  move- 
ment of  trains  while  within  the  State,  and  to  the  extent  simply  of  re- 
quiring a  given  number,  if  so  many  are  daily  run,  to  stop  at  certain 
places  long  enough  to  receive  and  let  off  passengers. 

jSTor  is  Illinois  Central  Railroad  v.  Illinois  inconsistent  with  the 
views  we  have  expressed.  In  that  case  a  statute  of  Illinois  was  held, 
in  certain  particulars,  to  be  unconstitutional  (although  the  legislation 
of  Congress  did  not  cover  the  subject),  as  directly  and  unnecessarily 
burdening  interstate  commerce.  The  court  said  :  "  The  effect  of  the 
statute  of  Illinois,  as  construed  and  applied  by  the  Supreme  Court  of 
the  State,  is  to  require  a  fast  mail  train,  carrying  interstate  passengers 
and  the  United  States  mail,  from  Chicago  in  the  State  of  Illinois  to 
places  south  of  the  Ohio  River,  over  an  interstate  highway  established 
by  authority  of  Congress,  to  delay  the  transportation  of  such  passen- 
gers and  mails,  by  turning  aside  from  the  direct  interstate  route,  and 
running  to  a  station  three  miles  and  a  half  away  from  a  point  on  that 
route,  and  back  again  to  the  same  point,  and  thus  travelling  seven 
miles  which  form  no  part  of  its  course,  before  proceeding  on  its  way; 
and  to  do  this  for  the  purpose  of  discharging  and  receiving  passengers 
at  that  station,  for  the  interstate  travel  to  and  from  which,  it  is  ad- 
mitted in  this  case,  the  railway  company*furnishes  other  and  ample 
accommodation.  This  court  is  unanimously  of  opinion  that  this  re- 
quirement is  an  unconstitutional  hindrance  and  obstruction  of  inter- 
state commerce,  and  of  the  passage  of  the  mails  of  the  United  States." 
Again  :  "  It  may  well  be,  as  held  by  the  courts  of  Illinois,  that  the 
arrangement  made  by  the  company  with  the  Post  Office  Department 
of  the  United  States  cannot  have  the  effect  of  abrogating  a  reasonable 
police  regulation  of  the  State.  But  a  statute  of  the  State,  which  un- 
necessarily interferes  with  the  speedy  and  uninterrupted  carriage  of 
the  mails  of  the  United  States,  cannot  be  considered  as  a  reasonable 
police  regulation."  The  statute  before  us  does  not  require  the  de- 
fendant company  to  turn  any  of  its  trains  from  their  direct  interstate 
route.  Besides,  it  is  clear  that  the  particular  question  now  presented 
was  not  involved  in  Illinois  Central  Railroad  Co.  v.  Illinois  ;  for  it  is 
stated  in  the  court's  opinion  that  "the  question  whether  a  statute 
which  merely  required  interstate  railroad  trains,  without  going  out  of 
their  course,  to  stop  at  county  seats,  would  be  within  the  constitutional 
power  of  the  State,  is  not  presented,  and  cannot  be  decided,  upon  this 
record."  The  above  extracts  show  the  full  scope  of  that  decision. 
Any  doubt  upon  the  point  is  removed  by  the  reference  made  to  that 
case  in  Gladson  v.  Minnesota,  166  U.  S.  427,  431. 

It  has  been  suggested  also  that  the  statute  of  Ohio  is  inconsistent 
with  section  6258  of  the  Revised  Statutes  of  the  United  States  au- 


366  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IT. 

thorizing  every  railroad  company  in  the  United  States  operated  by 
steaui,  its  successors  and  assigns,  "  to  carry  upon  and  over  its  road, 
boats,  bridges,  and  ferries  all  passengers,  troops,  government  supplies, 
mails,  freight,  and  property  on  their  way  from  any  State  to  another 
State,  and  to  receive  compensation  therefor,  and  to  connect  with  roads 
of  other  States  so  as  to  form  continuous  lines  for  the  transportation 
of  the  same  to  the  place  of  destination."  In  Missouri,  Kansas,  & 
Texas  Railway  v.  Haber,  169  U.  S.  613,"  638,  above  cited,  it  was  held 
that  the  authority  given  by  that  statute  to  railroad  companies  to  carry 
"freio-lit  and  property"  over  their  respective  roads  from  one  State  to 
another  State,  did  not  authorize  a  railroad  company  to  carry  into  a 
State  cattle  known,  or  which  by  due  diligence  might  be  known,  to  be 
in  such  condition  as  to  impart  or  communicate  disease  to  the  domestic 
cattle  of  such  State ;  and  that  a  statute  of  Kansas  prescribing  as  a 
rule  of  civil  conduct  that  a  person  or  corporation  should  not  bring 
into  that  State  cattle  known,  or  which  by  proper  diligence  could  be 
known,  to  be  capable  of  communicating  disease  to  domestic  cattle, 
could  not  be  regarded  as  beyond  the  necessities  of  the  case,  nor  as 
interfering  with  any  right  intended  to  be  given  or  recognized  by  sec- 
tion 5258  of  the  Revised  Statutes.  And  we  adjudge  that  the  above 
statutory  provision  w^as  not  intended  to  interfere  with  the  authority 
of  a  State  to  enact  such  regulations,  with  respect  at  least  to  a  railroad 
corporation  of  its  own  creation,  as  were  not  directed  against  interstate 
commerce,  but  which  only  incidentally  or  remotely  affected  such 
commerce,  and  were  not  in  themselves  regulations  of  interstate  com- 
merce, but  were  designed  reasonably  to  subserve  the  convenience 
of  the  public. 

For  the  reasons  stated  the  judgment  of  the  Supreme  Court  of  Ohio 
is  Affirmed} 

1  There  was  a  dissentinfr  opinion  hy  Mr.  Justice  Shiras,  with  whom  concurred 
Mr.  Justice  Brewer  and  Mr.  Justice  Peckham  ;  also  a  dissenting  opinion  by  Mr. 
Justice  White. 

In  the  case  of  Chesapeake  &  Ohio  K.  Co.  v.  Kentucky,  179  U.  S.  388,  21  Sup- 
Ct.  Kep.  101  (1900),  it  was  held  that  a  separate  coach  law  applicable  only  to  transpor. 
tation  of  passengers  within  the  State  was  valid. 

In  the  case  of  Houston  v.  Texas  Central  K.  Co.  v.  Mayes,  201  U.  S.  321,  26  Sup. 
Ct.  Rc'p.  491  (1906),  it  was  held  that  a  State  statute  recjuiring  railroads  including  those 
engaged  in  interstate  commerce  to  furnish  cars  as  ordered  by  shippers  within  a  speci- 
fied time  regardless  of  every  other  consideration  except  strikes  and  other  public  calami- 
ties was  invalid  as  to  interstate  commerce  shipments.  The  court  cites  Cleveland, 
etc.  R.  Co.  v.  Illinois,  177  U.  S.  514,  wherein  a  requirement  that  express  trains 
intended  only  for  through  passengers  should  stop  at  every  county  seat  when  ample 
accommodations  were  provided  by  local  trains,  was  held  to  be  au  unreasonable  burden 
on  interstate  commerce. 


SECT.  II.  b.  3.]  RAILROAD   COMPANY    V.    HUSEN.  867 

RAILROAD  COMPANY  v.  HUSEN. 
95  United  States,  465.     1877. 

Error  to  the  Supreme  Court  of  the  State  of  Missouri. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

Five  assignments  of  error  appear  in  this  record ;  but  they  raise 
only  a  single  question.  It  is,  whether  the  statute  of  Missouri,  upon 
which  the  action  in  the  State  court  was  founded,  is  in  conflict  with 
the  clause  of  the  Constitution  of  the  United  States  that  ordains 
"  Congress  shall  have  power  to  regulate  commerce  with  foreign  na- 
tions, and  among  the  several  States,  and  with  the  Indian  tribes." 
The  statute,  approved  Jan.  2.3,  1872,  by  its  first  section,  enacted  as 
follows  :  *'  No  Texas,  Mexican,  or  Indian  cattle  shall  be  driven  or 
otherwise  conveyed  into,  or  remain,  in  any  county  in  this  State,  be- 
tween the  first  day  of  March  and  the  first  day  of  November  in  each 
year,  by  any  person  or  persons  whatsoever."  A  later  section  is  in 
these  words  :  "  If  any  person  or  persons  shall  bring  into  this  State 
any  Texas,  Mexican,  or  Indian  cattle,  in  violation  of  the  first  section . 
of  this  act,  he  or  they  shall  be  liable,  in  all  cases,  for  all  damages  sus- 
tained on  account  of  disease  communicated  by  said  cattle."  Other 
sections  make  such  bringing  of  cattle  into  the  State  a  criminal 
offence,  and  provide  penalties  for  it.  It  was,  however,  upon  the  pro- 
visions we  have  quoted  that  this  action  was  brought  against  the  rail- 
road company  that  had  conveyed  the  cattle  into  the  county.  It  is 
noticeable  that  the  statute  interposes  a  direct  prohibition  against  the 
introduction  into  the  State  of  all  Texas,  Mexican,  or  Indian  cattle 
during  eight  months  of  each  year,  without  any  distinction  between 
such  as  may  be  diseased  and  such  as  are  not.  It  is  true  a  proviso  to 
the  first  section  enacts  that  "  when  such  cattle  shall  come  across  the 
line  of  the  State,  loaded  upon  a  railroad  car  or  steamboat,  and  shall 
pass  through  the  State  without  being  unloaded,  such  shall  not  be 
construed  as  prohibited  by  the  act;  but  the  railroad  company  or 
owners  of  a  steamboat  performing  such  transportation  shall  be  re- 
sponsible for  all  damages  which  may  result  from  the  disease  called 
the  Spanish  or  Texas  fever,  should  the  same  occur  along  the  line  of 
transportation  ;  and  the  existence  of  such  disease  along  the  line  of 
such  route  shall  be  2>?'i//ia  facie  evidence  that  such  disease  has  been 
communicated  by  such  transportation."  This  proviso  imposes  bur- 
dens and  liabilities  for  transportation  through  the  State,  though  the 
cattle  be  not  unloaded,  while  the  body  of  the  section  absolutely  pro- 
hibits the  introduction  of  any  such  cattle  into  the  State,  with  the 
single  exception  mentioned. 

It  seems  hardly  necessary  to  argue  at  length  that,  unless  the  stat- 
ute can  be  justified  as  a  legitimate  exercise  of  the  police  power  of  the 
State,  it  is  a  usurpation  of  the  power  vested  exclusively  in  Congress. 


363  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

It  is  a  plain  regulation  of  interstate  commerce,  a  regulation  extend- 
ing to  prohibition.  Wliatever  may  be  the  power  of  a  State  over 
commerce  that  is  completely  internal,  it  can  no  more  prohibit  or  regu- 
late that  which  is  interstate  than  it  can  that  which  is  with  foreign 
nations.  Power  over  one  is  given  by  the  Constitution  of  the  United 
States  to  Congress  in  the  same  words  in  which  it  is  given  over  the 
.other,  and  in  both  cases  it  is  necessarily  exclusive.  That  the  trans- 
portation of  property  from  one  State  to  another  is  a  branch  of  inter- 
state commerce  is  undeniable,  and  no  attempt  has  been  made  in  this 
case  to  deny  it. 

The  Missouri  statute  is  a  plain  interference  with  such  transporta- 
tion, an  attempted  exercise  over  it  of  the  highest  possible  power,  — 
that  of  destruction.     It  meets  at  the  borders  of  the  State  a  large  and 
common  subject  of  commerce,  and  prohibits  its  crossing  the  State  line 
during  two-thirds  of  each  year,  with  a  proviso,  however,  that  such 
cattle  may  come  across  the  line  loaded  upon  a  railroad  car  or  steam- 
boat, and  pass  through  the  State  without  being  unloaded.     But  even 
the  right  of  steamboat  owners  and  railroad  companies  to  transport 
such  property  through  the   State  is  loaded  by  the  law  wdth  onerous 
liabilities,  because  of  their  agency  in  the  transportation.     The  object 
and  effect  of  the  statute  are,  therefore,  to  obstruct  interstate  com- 
merce, and  to  discriminate   between  the  property  of  citizens  of  one 
State  and  that  of  citizens  of  other  States.     This  court  has  heretofore 
said  that  interstate  transportation  of  passengers  is  beyond  the  reach 
of  a  State  legislature.     And  if,  as  we  have  held,  State  taxation  of 
persons  passing  from  one  State  to  another,  or  a  State  tax  upon  inter- 
state transportation  of  passengers,  is  prohibited  by  the  Constitution 
because  a  burden  upon  it,  a  fortiori,  if  possible,  is  a  State  tax  upon 
the  carriage  of  merchandise  from  State  to  State.     Transportation  is 
essential  to  commerce,  or  rather  it  is  commerce  itself ;  and  every  ob- 
stacle to  it,  or  burden  laid  upon  it  by  legislative  authority,  is  regula- 
tion.    Case  of  the  State  Freight  Tax,  15  Wall.   232,  281 ;  Ward  v. 
Maryland,  12  id.  418  ;  Welton  v.  The  State  of  Missouri,  91  U.  S.  275; 
Henderson  v.  Mayor  of  the  City  of  New  York  et  ah.  92  id.  259 ;  Chy 
Lung   V.  Freeman,   id.  275.      The   two  latter  of   these   cases  refer 
to  obstructions  against  the  admission  of  persons  into  a  State,  but 
the   principles    asserted   are   equally    applicable   to   all   subjects   of 
commerce. 

We  are  thus  brought  to  the  question  whether  the  Missouri  statute 
is  a  lawful  exercise  of  the  police  power  of  the  State.  We  admit  that 
the  deposit  in  Congress  of  the  power  to  regulate  foreign  commerce 
and  commerce  among  the  States  was  not  a  surrender  of  that  which 
may  properly  be  denominated  police  power.  What  that  power  is,  it 
is  difficult  to  define  with  sharp  precision.  It  is  generally  said  to 
extend  to  making  regulations  promotive  of  domestic  order,  morals, 
health,  and  safety.  As  was  said  in  Thorp  v.  The  Rutland  &  Burling- 
ton Railroad  Co.,  27  Vt.  119,  "it  extends  to  the  protection  of  the 


SECT.  II.  b.  3.]  RAILROAD    COMPANY    V.    HDSEN.  369 

lives,  limbs,  liealth,  comfort,  and  quiet  of  all  persons,  and  the  protec-; 
tion  of  all  property  within  the  State.  According  to  the  maxim,  sic 
utere  tuo  ut  alienuni  non  Uechis,  which,  being  of  universal  application, 
it  must,  of  course,  be  within  the  range  of  legislative  action  to  define 
the  mode  and  manner  in  which  every  one  may  so  use  his  own  as  not 
to  injure  others."  It  was  further  said,  that,  by  the  general  police 
power  of  a  State,  "  persons  and  property  are  subjected  to  all  kinds  of 
restraints  and  burdens,  in  order  to  secure  the  general  comfort,  health, 
and  prosperity  of  the  State ;  of  the  perfect  right  of  the  Legislature 
CO  do  which  no  question  ever  was,  or  upon  acknowledged  general 
principles  ever  can  be,  made,  so  far  as  natural  persons  are  con- 
cerned." It  may  also  be  admitted  that  the  police  power  of  a  State 
justifies  the  adoption  of  precautionary  measures  against  social  evils. 
Under  it  a  State  may  legislate  to  prevent  the  spread  of  crime,  or 
pauperism,  or  disturbance  of  the  peace.  It  may  exclude  from  its^ 
limits^onvicts,  paupers,  idiots,  and  lunatics,  and  persons  likely  to 
become  a  public  charge,  as  well  as  persons  affiicted  by  contagious  or 
infectious  diseases  ;  a  right  founded,  as  intimated  in  The  Passenger 
Cases,  7  How.  283,  by  Mr.  Justice  Greer,  in  the  sacred  law  of  self- 
defence.  Vide  3  Sawyer,  283.  The  same  principle,  it  may  also  be , 
conceded,  would  justify  the  exclusion  of  property  dangerous  to  the- 
property  of  citizens  of  the  State ;  for  example,  animals  having  con-/ 
tagious  or  infectious  diseases.  All  these  exertions  of  power  are  in 
immediate  connection  with  the  protection  of  persons  and  property 
against  noxious  acts  of  other  persons,  or  such  a  use  of  property  as  is 
injurious  to  the  property  of  others.     They  are  self-defensive. 

But  whatever  may  be  the  nature  and  reach  of  the  police  power  of 
a  State,  it  cannot  be  exercised  over  a  subject  confided  exclusively  to 
Congress  by  the  Federal  Constitution.  It  cannot  invade  the  domain 
of  the  national  government.  It  was  said  in  Henderson  r.  IMayor  of 
the  City  of  ^vTew  York,  92  U.  S.  259,  272,  to  "  be  clear,  from  the 
nature  of  our  complex  form  of  government,  that  whenever  the  statute 
of  a  State  invades  the  domain  of  legislation  wliicli  belongs  exclusively 
to  the  Congress  of  the  United  States,  it  is  void,  no  matter  under  what 
class  of  powers  it  may  fall,  or  how  closely  allied  it  may  be  to  powers 
conceded  to  belong  to  the  State."  Substantially  the  same  thing  was 
said  by  Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheat.  1,  210. 
Neither  the  unlimited  powers  of  a  State  to  tax,  nor  any  of  its  large 
police  powers,  can  be  exercised  to  such  an  extent  as  to  work  a  prac- 
tical assumption  of  the  powers  properly  conferred  upon  Congress  by 
the  Constitution.  Many  acts  of  a  State  may,  indeed,  affect  ooin- 
merce,  without  amounting  to  a  regulation  of  it,  in  the  constitutional 
sense  of  the  term.  And  it  is  sometimes  difficult  to  define  the  distinc- 
tion between  that  which  merely  affects  or  influences  and  that  which 
regulates  or  furnishes  a  rule  for  conduct.  There  is  no  such  difficulty 
in  the  present  case.  While  we  unhesitatingly  admit  that  a  Stato 
may  pass  sanitary  laws,  and  laws  for  the  protection  of  life,  liberty, 
-  24 


^ 


370  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

health,  or  property  within  its  borders ;  while  it  may  prevent  persons 
"and  animals  suffering  under  contagious  or  infectious  diseases,  or  con- 
j  victs,  &c.,  from  entering  the  State ;  while  for  the  purpose  of  self- 
n  protection  it  may  establish  quarantine,  and  reasonable.,  inspection 
1\  laws,  it  may  not  interfere  with  transportation  into  or  tirrougli  the 
State  beyond  what  is  absolutely  necessary  for  its  self-protection.  It 
may  not^  under  the  cover  of  exerting  its  police  powers,  substantiairp** 
prohibit  or  burden  either  foreign  or  interstate  commerce.  Upon  this 
subject  the  cases  in  92  U.  S.,  to  which  we  have  referred,  are  very 
instructive.  In  Henderson  v.  The  Mayor,  &c.,  the  statute  of  New 
York  was  defended  as  a  police  regulation  to  protect  the  State  against 
the  influx  of  foreign  paupers;  but  it  was  held  to  be  unconstitutional, 
because  its  practical  result  was  to  impose  a  burden  upon  all  passen- 
gers from  foreign  countries.  And  it  was  laid  down  that,  "  in  what- 
ever language  a  statute  may  be  framed,  its  purpose  must  be  determined 
by  its  natural  and  reasonable  effect."  The  reach  of  the  statute  was 
far  beyond  its  professed  object,  and  far  into  the  realm  which  is 
within  the  exclusive  jurisdiction  of  Congress.  So  in  the  case  of  Chy 
Lung  V.  Freeman,  where  the  pretence  was  the  exclusion  of  lewd 
women;  but  as  the  statute  was  more  far-reaching,  and  affected  other 
immigrants,  not  of  any  class  which  the  State  could  lawfully  exclude, 
we  held  it  unconstitutional.  Neither  of  these  cases  denied  the  right 
of  a  State  to  protect  herself  against  paupers,  convicted  criminals,  or 
lewd  women,  by  necessary  and  proper  laws,  in  the  absence  of  legis- 
lation by  Congress,  but  it  was  ruled  that  the  right  could  oul}'  arisie 
from  vital  necessity,  and  that  it  could  not  be  carried~T)e}X)ncPthe 
scope  of  that  necessity.  These  cases,  it  is  true,  speak  only  of  laws 
affecting  the  entrance  of  persons  into  a  State;  but  the  constitutional 
doctrines  they  maintain  are  equally  applicable  to  interstate  transpor- 
tation of  property.  They  deny  validity  to  any  State  legislation  pro- 
fessing to  be  an  exercise  of  police  power  for  protection  against  evils 
from  abroad  which  is  beyond  the  necessity  for  its  exercise,  wherever 
it  interferes  with  the  rights  and  powers  of  the  Federal  government. 

Tried  by  this  rule,  the  statute  of  Missouri  is  a  plain  intrusion  upon 
the  exclusive  domain  of  Congress.  It  is  not  a  quarantine  law.  It  is 
not  an  inspection  law.  It  says  to  all  natural  persons,  and  to  all 
transportation  companies,  "You  shall  not  bring  into  the  State  any 
Texas  cattle,  or  any  Mexican  cattle,  or  Indian  cattle,  between  March 
1  and  December  1  in  any  year,  no  matter  whether  they  are  free  from 
disease  or  not,  no  matter  whether  they  may  do  an  injury  to  the  in- 
habitants of  the  State  or  not;  and  if  you  do  bring  them  in,  even  for 
the  purpose  of  carrying  them  through  the  State  without  unloading 
them,  you  shall  be  subject  to  extraordinary  liabilities."  Such  a  stat- 
ute, we  do  not  doubt,  it  is  beyond  the  power  of  a  State  to  enact. 
To  hold  otherwise  would  be  to  ignore  one  of  the  leading  objects  which 
the  Constitution  of  the  United  States  was  designed  to  secure. 

lu  coming  to  such  a  conclusion,  we  have  not-  overlooked  the  decis- 


SECT.  II.  b.  3.] 


KIMMISH    V.   BALL. 


371 


ions  of  very  respectable  courts  in  Illinois,  where  statutes  similar  to 
the  one  we  have  before  us  have  been  sustained.  Yeazel  v.  Alexander, 
58  111.  254.  Regarding  the  statutes  as  mere  police  regulations,  in- 
tended to  protect  domestic  cattle  against  infectious  disease,  those 
courts  have  refused  to  inquire  whether  the  prohibition  did  not  ex- 
tend beyond  the  danger  to  be  apprehended,  and  whether,  therefore, 
the  statutes  were  not  something  more  than  exertions  of  police  power. 
That  inquiry,  they  have  said,  was  for  the  legislature,  and  not  for  the 
courts. '-'  With  this  we  cannot  concur.  The  police  power  of  a  State 
jgajinot  obstruct  foreign  commerce  or  interstate  commercejbejond  the 
necessity  for  its  exercise ;  and  under  color  of  it  objects  not  within ' 
its  scope  cannot  be  secured  at  the  expense  of  the  protection  afforded 
by  the  Federal  Constitution,  And  as  its  range  sometimes  comes 
very  near  to  the  field  committed  by  the  Constitution  to  Congress, 
it  is  the  duty  of  the  courts  to  guard  vigilantly  against  any  needless 
intrusion. 

Judgment  reversed,  and  the  record  remanded  icith  instructions  to 

reverse  the  judgment  of  the  Circuit  Court  of  Grundy  County^ 

and  to  direct  that  court  to  aicard  a  new  trial. 


KIMMISH    V.    BALL. 
129  United  States,  217.     1889. 

[On  certificate  of  division  of  opinion  from  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  Iowa  as  to  the  constitu- 
tionality of  §  4059  of  Code  of  Iowa  (1873)  relating  to  liability  of 
owner  for  damages  resulting  from  allowing  cattle  having  the  Texas 
fever  to  run  at  large  and  spread  the  disease.] 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

In  order  to  understand  §  4059  of  the  Code  of  Iowa,  it  must  be 
read  in  connection  with  the  preceding  §  4058,  to  which  it  refers. 
It  must  also  be  known  what  is  meant  by  "Texas  cattle,"  and  what 
influence  a  winter  north  has  upon  the  disease  called  "Texas  fever," 
with  which  such  cattle  are  liable  to  be  infected.     Section  4058  is 
levelled  against  the  importation  of  Texas  cattle  which  have  not  been 
wintered  north  of  the  southern    boundary  of  Missouri  or  Kansas.       /  •' 
Any  person  bringing  into  the  State  Texas  cattle,  unless  they  havei  ^y 
been  thus  wintered,  is  subject  to  be  fined  or  imprisoned.     When,  H'^  l  t : 
therefore,  §  4059  refers  to  the  possession  in  the  State  of  any  "such 
Texas  cattle"  it  means  cattle  which  have  not  been  wintered  north, 
as  mentioned  in  the  preceding  section.     It  is  only  when  they  have 
not  been  thus  wintered  that  apprehension  is  felt  that  they  may  be 
infected  with  the  disease  and  spread  it  among  other  cattle. 


t 


M 


372  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

The  term  "Texas  cattle"  is  not  defined  in  the  Code  of  Iowa;  and 
whether  used  there  to  designate  cattle  from  the  State  of  Texas 
alone,  or,  as  averred  by  the  plaintiff  in  error,  a  particular  breed  or 
variety  called  Mexican  or  Spanish  cattle,  Avhich  are  also  found  in 
Arkansas  and  the  Indian  Territory,  is  not  material  for  the  dispo- 
sition of  this  case.  Cattle  coming  from  both  of  those  States  and 
from  that  Territory  during  the  spring  and  summer  mouths  are  often 
infected  with  what  is  known  as  Texas  fever.  It  is  supposed  that 
they  become  infected  with  the  germs  of  this  distemper  while  feed- 
ing, during  those  months,  on  the  low  and  moist  grounds  of  those 
States  and  Territory,  constituting  what  are  called  their  malarial  dis- 
tricts, which  are  largely  covered  with  a  thick  vegetable  growth. 
These  germs  are  communicated  to  domestic  cattle  by  contact,  or  by 
feeding  in  the  same  range  or  pasture.  Scientists  are  not  agreed  as 
to  the  causes  of  the  malady;  and  it  is  not  important  for  our  decision 
which  of  the  many  theories  advanced  by  them  is  correct.  That  cattle 
coming  from  those  sections  of.  the  country  during  the  spring  and 
summer  mouths  are  often  infected  with  a  contagious  and  dangerous 
fever  is  a  notorious  fact;  as  is  also  the  fact  that  cold  weather,  such 
as  is  usual  in  the  winter  north  of  the  southern  boundary  of  Mis- 
souri and  Kansas,  destroys  the  virus  of  the  disease,  and  thus  removes 
all  danger  of  infection.  It  is  upon  these  notorious  facts  that  the 
legislation  of  Iowa  for  the  exclusion  from  their  limits  of  these  cattle, 
unless  they  have  passed  a  winter  north,  is  based.  See  Missouri 
Pacific  Railway  Company  v.  Finley,  ,38  Kansas,  550,  556;  also. 
First  Annual  Report  to  the  Commissioner  of  Agriculture  of  the 
Bureau  of  Animal  Industry  for  1884,  426;  and  Second  Annual  Report 
of  the  same  bureau  for  1885,  310. 

Section  4059,  with  which  we  are  concerned,  provides  that  any 
person  who  has  in  his  possession  in  the  State  of  Iowa  any  Texas 
cattle  which  have  not  been  wintered  north  shall  be  liable  for  any 
damages  that  may  accrue  from  allowing  such  cattle  to  run  at  large 
and  thereby  spread  the  disease.  We  are  unable  to  appreciate  the 
force  of  the  objection  that  such  legislation  is  in  conflict  with  the 
paramount  authority  of  Congress  to  regulate  interstate  commerce. 
We  do  not  see  that  it  has  anything  to  do  with  that  commerce;  it  is 
only  levelled  against  allowing  diseased  Texas  cattle  held  within 
the  State  to  run  at  large.  The  defendants  labor  under  the  impres- 
sion that  the  validity  of  §  4058,  which  is  directed  against  the  impor- 
tation into  the  State  of  such  cattle  unless  they  have  been  wintered 
north,  is  before  us,  and  that  a  consideration  of  its  validity  is  nec- 
essary in  passing  upon  §  4059;  but  this  is  a  mistake.  Section  4058 
is  before  us  only  that  we  may  ascertain  from  it  the  meaning  intended 
by  certain  terms  used  in  the  subsequent  section  referring  to  it,  and 
not  upon  any  question  of  its  constitutionality. 

Xor  does  the  case  of  Railroad  Company  v.  Husen,  95  U.  S.  465, 
upon  which  the  defendant  relies  with  apparent  couhdeuce,  have  any 


SECT.  11.  b.  3.]  BRIMMER    V.    REBMAN.  373 

bearing  upon  the  questions  presented.  The  decision  in  that  case 
rested  upon  the  ground  that  no  discrimination  was  made  by  the  law 
of  Missouri  in  the  transportation  forbidden  between  sound  cattle  and 
diseased  cattle;  and  this  circumstance  is  prominently  put  forth  in 
the  opinion. 

The  case  is,  therefore,  reduced  to  this,  whether  the  State  may  not 
provide  that  whoever  permits  diseased  cattle  in  his  possession  to 
run  at  large  within  its  limits  shall  be  liable  for  any  damages  caused 
by  the  spread  of  the  disease  occasioned  thereby;  and  upon  that  we  do 
not  entertain  the  slightest  doubt.  Our  answer,  therefore,  to  the 
first  question  upon  which  the  judges  below  differed  is  in  the  nega- 
tive, that  the  section  in  question  is  not  unconstitutional  by  reason  of 
any  conflict  with  the  commercial  clause  of  the  Constitution. 

As  to  the  second  question,  our  answer  is  also  in  the  negative.^ 
There  is  no  denial  of  any  rights  and  privileges  to  citizens  of  other 
States  which  are  accorded  to  citizens  of  Iowa.  No  one  can  allow 
diseased  cattle  to  run  at  large  in  Iowa  without  being  held  respon- 
sible for  the  damages  caused  by  the  spread  of  disease  thereby;  and 
the -clause  of  the  Constitution  declaring  that  the  citizens  of  each 
State  shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in 
the  several  States  does  not  give  non-resident  citizens  of  Iowa  any 
greater  privileges  and  immunities  in  that  State  than  her  own  citizens 
there  enjoy.  So  far  as  liability  is  concerned  for  the  act  mentioned, 
citizens  of  other  States  and  citizens  of  Iowa,  stand  upon  the  same 
footing.     Paul  v.  Virginia,  8  Wall.  168. 

It  follows  that  the  judgment  below  must  be 

Reversed,  and  the  cause  remanded  for  a  new  trial. 


BEIMMERv.    REBMAN. 

138  United  States,  78.     1891. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

William  Rebman  was  tried  and  convicted  before  a  justice  of  the 
peace  iu  Norfolk,  Virginia,  "a  city  of  fifteen  thousand  inhabitants 
or  more,"  of  the  offence  of  having  wrongfully,  unlawfully,  and 
knowingly  sold  and  offered  for  sale  "  eighteen  pounds  of  fresh  meat, 
to  wit,  fresh,  uncured  beef,  the  same  being  the  property  of  Armour 
&  Co.,  citizens  of  the  State  of  Illinois,  and  a  part  of  an  animal  that 
had  been  slaughtered  in  the  county  of  Cook  and  State  of  Illinois, 
a  distance  of  one  hundred  miles  and  over  from  the  said  city  of  Nor- 
folk in  the  State  of  Virginia,  without  having  first  applied  to  and 
had  the  said  fresh  meat  inspected  by  the  fresh  meat  inspectors  of 
the  said  city  of  Norfolk,  he,  the  said  Rebman,  then  and  there  well 


374  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

knowing  that  the  said  fresh  meat  was  required  to  be  inspected  under 
the  laws  of  Virginia,  and  that  the  same  had  not  been  so  inspected 
and  approved  as  required  by  the  act  of  the  General  Assembly  of 
Virginia,  entitled  '  An  act  to  prevent  the  selling  of  unwholesome 
meat,'  approved  February  18,  1890."  He  was  adjudged  to  pay  a  fine 
of  ^oO  for  the  use  of  the  Commonwealth  of  Virginia,  and  $3.75 
costs;  and,  failing  to  pay  tliese  sums,  he  was,  by  order  of  the  justice, 
committed  to  jail,  there  to  be  safely  kept  until  the  fine  and  costs 
were  paid,  or  until  he  was  otherwise  discharged  by  due  course  of 
law. 

He  sued  out  a  writ  of  habeas  corptis  from  the  Circuit  Court  of 
the  United  States  for  the  Eastern  District  of  Virginia  upon  the 
ground  that  he  was  restrained  of  his  liberty  in  violation  of  the  Con- 
stitution of  the  United  States.  Upon  the  hearing  of  the  petition 
for  the  writ  he  was  discharged,  upon  grounds  set  forth  in  an  elab- 
orate opinion  by  Judge  Hughes,  holding  the  Circuit  Court.  In  re 
Rebman,  41  Fed.  Eep.  867.  The  case  is  here  upon  appeal  by  the 
officer  having  the  prisoner  in  custody. 

The  sole  question  to  be  determined  is  whether  the  statute  under 
which  Rebman  was  arrested  and  tried  is  repugnant  to  the  Constitu- 
tion of  the  United  States. 

The  recital  in  the  preamble  that  unwholesome  meats  were  being 
offered  for  sale  in  Virginia  cannot  conclude  the  question  of  the  con- 
formity of  the  act  to  the  Constitution,  "There  may  be  no  purpose," 
this  court  has  said,  "upon  the  part  of  a  legislature  to  violate  the 
provisions  of  that  instrument,  and  yet  a  statute  enacted  by  it,  under 
the  forms  of  law,  may,  bj'  its  necessary  operation,  be  destructive  of 

,  rights  granted  or  secured  by  the  constitution;"  in  which  case,  "the 
courts  must  sustain  the  supreme  law  of  the  land  by  declaring  the 
statute  unconstitutional  and  void."  IMinnesota  v.  Barber,  136  U.  S. 
313,  319,  and  authorities  here  cited.  Is  the  statute  now  before  us 
liable  to  the  objection  that,  by  its  necessary  operation,  it  interferes 
with  the  enjoyment  of  rights  granted  or  secured  by  the  Constitu- 
tion ?  This  question  admits  of  but  one  answer.  The  statute  is,  in 
effect,  a  prohibition  upon  the  sale  in  Virginia  of  beef,  veal,  or  mutton, 
although  entirely  wholesome,  if  from  animals  slaughtered  one  hun- 

Idred  miles  or  over  from  the  place  of  sale.  We  say  prohibition, 
because  the  owner  of  such  meats  cannot  sell  them  in  Virginia  until 
they  are  inspected  there;  and  being  required  to  pay  the  heavy  charge 
of  one  cent  per  pound  to  the  inspector,  as  his  compensation,  he  caimot 
compete,  upon  equal  terms,  in  the  markets  of  that  Commonwealth, 
with  those  in  the  same  business  whose  meats,  of  like  kinds,  from 
animals  slaughtered  within  less  than  one  hundred  miles  from  the 
place  of  sale,  are  not  subjected  to  inspection,  at  all.  Whether  there 
shall  be  inspection  or  not,  and  whether  the  seller  shall  compensate 
the  inspector  or  not,  is  thus  made  to  depend  entirely  upon  the  place 


SECT.  II.  b.  3.]  BRIMMER   V.    REBMAN.  375 

where  the  animals  from  which  the  beef,  veal,  or  mutton  is  taken, 
were  slaughtered.  Undoubtedly,  a  State  may  establish  regulations 
for  the  protection  of  its  people  against  the  sale  of  unwholesome 
meats,  provided  such  regulations  do  not  conflict  with  the  powers  con- 
ferred by  the  Constitution  upon  Congress,  or  infringe  rights  granted 
or  secured  by  that  instrument.  But  it  may  not,  under  the  guise  of 
exerting  its  police  powers,  or  of  enacting  inspection  laws,  make  dis-  \ 
criminations  against  the  products  and  industries  of  some  of  tlie  States^ 
in  favor  of  the  products  and  industries  of  its  own  or  of  other  States. 
The  owner  of  the  meats  here  in  question,  although  they  were  from 
animals  slaughtered  in  Illinois,  had  the  right,  under  the  Constitu- 
tion, to  compete  in  the  markets  of  Virginia  upon  terms  of  equality 
with  the  owners  of  like  meats,  from  animals  slaughtered  in  Vir- 
ginia or  elsewhere  within  one  hundred  miles  from  the  place  of  sale. 
Any  local  regulation  which,  in  terms  or  by  its  necessary  operation,\ 
denies  this  equality  in  the  markets  of  a  State  is,  when  applied  to] 
the  people  and  products  or  industries  of  other  States,  a  direct  burden/ 
upon  commerce  among  the  States,  and,  therefore,  void.  "Welton  v. 
Missouri,  91  U.  S.  275,  281;  Railroad  Co.  v.  Husen,  95  U.  S.  465; 
Minnesota  v.  Barber,  above  cited.  The  fees  exacted,  under  the 
Virginia  statute,  for  the  inspection  of  beef,  veal,  and  mutton,  the 
product  of  animals  slaughtered  one  hundred  miles  or  more  from  the  ;■ 
place  of  sale,  are,  in  reality,  a  tax;  and  "a  discriminating  tax  im- 
posed by  a  State,  operating  to  the  disadvantage  of  the  products  of 
other  States  when  introduced  into  the  first-mentioned  State,  is,  in 
effect,  a  regulation  in  restraint  of  commerce  among  the  States,  and, 
as  such,  is  a  usurpation  of  the.  powers  conferred  by  the  Constitution 
upon  the  Congress  of  the  United  States."  Walling  v.  Michigan, 
116  U.  S.  446,  455.  Nor  can  this  statute  be  brought  into  harmony 
with  the  Constitution  by  the  circumstance  that  it  purports  to  apply 
alike  to  the  citizens  of  all  the  States,  including  Virginia;  for,  "a 
burden  imposed  by  a  State  upon  interstate  commerce  is  not  to  be 
sustained  simply  because  tlie  statute  imposing  it  ajiplies  alike  to  the 
people  of  all  the  States,  including  the  people  of  the  State  enacting 
such  statute."  Minnesota  v.  Barbei*,  above  cited;  Bobbins  v.  Shelby 
Taxing  District,  120  U.  S.  489,  497.  If  the  object  of  Virginia  had 
been  to  obstruct  the  bringing  into  that  State,  for  use  as  human  food, 
of  all  beef,  veal  and  mutton,  however  wholesome,  from  animals 
slaughtered  in  distant  States,  that  object  will  be  accomplished  if 
the  statute  before  us  be  enforced. 

It  is  suggested  that  this  statute  can  be  sustained  by  presuming  — 
as,  it  is  said,  we  should  do  when  considering  the  validity  of  a  legis- 
lative enactment  —  that  beef,  veal,  or  mutton  will  or  may  become 
unwholesome,  "if  transported  one  hundred  miles  or  more  from  the 
place  at  which  it  was  slaughtered,"  before  being  offered  for  sale. 
If  that  presumption  could  be  indulged,  consistently  with  facts  of 
such  general  notoriety  as  to  be  within  common  knowledge,  and  of 


376  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

which,  therefore,  the  courts  may  take  judicial  notice,  it  ought  not  to 
control  this  case,  because  the  statute,  by  reason  of  the  onerous  nature 
of  the  tax  imposed  in  the  name  of  compensation  to  the  inspector, 
goes  far  beyond  the  purposes  of  legitimate  inspection  to  determine 
[  quality  and  condition,  and,  by  its  necessary  operation,  obstructs  the 
\freedom  of  commerce  among  the  States.  It  is,  for  all  practical 
ends,  a  statute  to  prevent  the  citizens  of  distant  States,  having  for  sale 
fresh  meats  (beef,  veal,  or  mutton),  from  coming  into  competition, 
upon  terms  of  equality,  with  local  dealers  in  Virginia.  As  such,_its^ 
repugnancy  to  the  Constitution  is  manifest.  The  case,  in  principle, 
is  not  distinguishable  from  Minnesota  v.  Barber,  where  an  inspec- 
tion statute  of  Minnesota,  relating  to  fresh  beef,  veal,  mutton,  lamb 
and  pork,  offered  for  sale  in  that  State,  was  held  to  be  a  regulation 
of  interstate  commerce  and  void,  because,  by  its  necessary  opera- 
tion, it  excluded  from  the  markets  of  that  State,  practically,  all  such 
meats  —  in  whatever  form,  and  although  entirely  sound  and  fit  for 
human  food  —  from  animals  slaughtered  in  other  States. 

Without  considering  other  grounds  urged  in  opposition  to  the 
statute  and  in  support  of  the  judgment  below,  we  are  of  opinion  that 
the  statute  of  Virginia,  although  avowedly  enacted  to  protect  its 
people  against  the  sale  of  unwholesome  meats,  has  no  real  or  sub- 
stantial relation  to  such  an  object,  but,  by  its  necessary  operation, 
is  a  regulation  of  commerce,  beyond  the  power  of  the  State  to 
establish.  Judgment  affirmed. 


J  7  r 

MOKGAN'S  STEAMSHIP  COMPANY  v.  LOUISIANA  BOARD 

OF  HEALTH. 

118  United  States,  455.     1886. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Louisiana. 

The  plaintiff  in  error  was  plaintiff  in  the  State  court,  and  in  the 
court  of  original  jurisdiction  obtained  an  injunction  against  the 
Board  of  Health  prohibiting  it  from  collecting  from  the  plaintiffs 
the  fee  of  $30  and  other  fees  allowed  by  Act  69  of  the  Legislature  of 
Louisiana  of  1882,  for  the  examination  which  the  quarantine  laws 
of  the  State  required  in  regard  to  all  vessels  passing  the  station. 
This  decree  was  reversed,  on  appeal,  by  the  Supreme  Court  of  the 
State,  and  to  this  judgment  of  reversal  the  present  writ  of  error  was 
prosecuted. 

[The  first  question  considered  is  as  to  whether  the  fees  provided 
for  by  the  statute  constituted  a  tonnage  tax,  and  the  court  holds  that 
they  do  not.] 


SECT.  11.  b.  3.]       morgan's  S.  S.  CO.  V.  LA.  BOARD  OF  HEALTH.  377 

Is  the  law  under  consideration  void  as  a  regulation  of  commerce  ? 
Undoubtedly  it  is  in  some  sense  a  regulation  of  commerce.  It 
arrests  a  vessel  on  a  voyage  which  may  have  been  a  long  one.  It 
may  affect  commerce  among  the  States  when  the  vessel  is  coming 
from  some  other  State  of  the  Union  than  Louisiana,  and  it  may  affect 
commerce  with  foreign  nations  when  the  vessel  arrested  comes 
from  a  foreign  port.  This  interruption  of  the  voyage  may  be  for 
days  or  for  weeks.  It  extends  to  the  vessel,  the  cargo,  the  officers 
and  seamen,  and  the  passengers.  In  so  far  as  it  provides  a  rule  by 
which  this  power  is  exercised,  it  cannot  be  denied  that  it  regulates 
commerce.  We  do  not  think  it  necessary  to  enter  into  the  inquiry 
whether,  notwithstanding  this,  it  is  to  be  classed  among  those  police 
powers  which  were  retained  by  the  States  as  exclusively  their  own, 
and,  therefore,  not  ceded  to  Congress.  For,  while  it  may  be  a 
police  power  in  the  sense  that  all  provisions  for  the  health,  comfort, 
and  security  of  the  citizens  are  police  regulations,  and  an  exercise 
of  the  police  power,  it  has  been  said  more  than  once  in  this  court 
that,  even  where  such  powers  are  so  exercised  as  to  come  within 
the  domain  of  Federal  authority  as  defined  by  the  Constitution,  the 
latter  must  prevail.  Gibbons  v.  Ogden,  9  Wheat.  1,  210;  Hender- 
son V.  The  Mayor,  92  U.  S.  259,  272;  New  Orleans  Gas  Co.  v. 
Louisiana  Light  Co.,  115  U.  S.  650,  661. 

But  it  may  be  conceded  that  whenever  Congress  shall  undertake  to 
provide  for  the  commercial  cities  of  the  United  States  a  general 
system  of  quarantine,  or  shall  confide  the  execution  of  the  details  of 
such  a  system  to  a  National  Board  of  Health,  or  to  local  boards,  as 
may  be  found  expedient,  all  State  laws  on  the  subject  will  be  abro- 
gated, at  least  so  far  as  the  two  are  inconsistent.  But^  until  this  is 
done,  the  laws  of  the  State  on  the  subject  are  valid.  This  follows 
from  two  reasons :  \ 

1.  The  act  of  1799,  the  main  features  of  which  are  embodied  in  \ 
Title  LVIII.  of  the  Revised  Statutes,  clearly  recognizes  the  quaran-  \ 
tine  laws  of  the  States  and  requires  of  the  officers  of  the  Treasury  a 
conformity  to  their  provisions  in  dealing  with  vessels  affected  by  : 
the  quarantine  system.  And  this  very  clearly  has  relation  to  laws  j 
created  after  the  passage  of  that  statute,  as  well  as  to  those  then  in  1 
existence;  and  when  by  the  act  of  April  29,  1878,  20  Stat.  37,  cer-  | 
tain  powers  in  this  direction  were  conferred  on  the  Surgeon-General  ■, 
of  the  Marine  Hospital  Service,  and  consuls  and  revenue  officers  * 
were  required  to  contribute  services  in  preventing  the  importation          ( 

of  disease,  it  was  provided  that  "there  shall  be  no  interference  inW  "^S /~ 
any  manner  with  any  quarantine  laws  or  regulations  as  they  now  )  /^  ^^^' 
exist  or  may  hereafter  be  adopted  under  State  laws,"  showing  very 
clearly  the  intention  of  Congress  to  adopt  these  laws,  or  to  recognize 
the  power  of  the  States  to  pass  them. 

2.  But,  aside  from  this,  quarantine  laws  belong  to  that  class  of 
State  legislation  which,  whether  passed  with  intent  to  regulate  com- 


(?. 


378  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

merce  or  not,  must  be  admitted  to  have  that  effect,  and  which  are 
valid  until  displaced  or  contravened  by  some  legislation  of  Congress. 
The  matter  is  one  in  which  the  rules  that  should  govern  it  ma}'  in 
many  respects  be  different  in  different  localities,  and  for  that  reason 
\be  better  understood  and  more  wisely  established  by  the  local 
authorities.  The  practice  which  should  control  a  quarantine  station 
on  the  Mississippi  River,  a  hundred  miles  from  the  sea,  may  be 
widely  and  wisely  different  from  that  which  is  best  for  the  harbor  of 
New  York.  In  this  respect  the  case  falls  within  the  principle 
which  governed  the  cases  of  Willson  v.  Blackbird  Creek  Marsh  Co., 
2  Pet.  245;  Cooley  v.  The  Board  of  Wardens,  12  How.  229;  Oilman 
V.  Philadelphia,  3  Wall.  713,  727;  Pound  v.  Turk,  95  U.  S.  459, 
462;  Hall  v.  DeCuir,  95  U.  S.  485,  488;  Packet  Co.  v.  Catlettsburg, 
105  U.  S.  559,  562;  Transportation  Co.  v.  Parkersburg,  107  U.  S. 
691,  702;  Escanaba  Co.  v.  Chicago,  107  U.  S.  678. 

This  principle  has  been  so  often  considered  in  this  court  that  ex- 
tended comment  on  it  here  is  not  needed.  Quarantine  laws  are 
so  analogous  in  most  of  their  features  to  pilotage  laws  in  their  rela- 
tion to  commerce  that  no  reason  can  be  seen  why  the  same  principle 
should  not  apply. 

We  see  no  error  in  the  judgment  of  the  Supreme  Court  of  Louisi- 
ana, and  it  is  Affirmed. 
Mr.  Justice  Bradley  dissented. 


•f^ 


£^^^ 


LEISY   V.    HARDIN.        j^    7^-<yP 
135  United  States,  100.     1890.  ^^^^  ^ 


[Tins  action  was  originally  brought  in  the  Superior  Court  of 
Keokuk,  Iowa,  by  plaintiffs,  citizens  of  Illinois,  to  recover  posses- 
sion of  certain  kegs  and  cases  of  beer  belonging  to  plaintiffs  and  by 
them  shipped  from  Illinois  into  Iowa  and  held  by  their  agent  at 
Keokuk  for  sale  in  the  original  packages  and  which  had  been  seized 
by  State  officers  of  Iowa  under  the  prohibitory  liquor  law  in  a 
proceeding  for  their  condemnation  and  destruction.  The  Superior 
Court  awarded  to  plaintiffs  the  return  of  the  property  and  damages 
for  its  detention.  This  judgment  was  reversed  by  the  Supreme  Court 
of  Iowa,  and  by  writ  of  error  the  decision  was  brought  here  for 
review.] 

Mr.  Chief  Justice  Fuller,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

The  power  vested  in  Congress  "to  regulate  commerce  with  for- 
eign nations,  and  among  the  several  States,  and  with  the  Indian 
tribes,"  is  the  power  to  prescribe  the  rule  by  which  that  commerce 


SECT.  II.  b.  3.]  LEISY   y..  HAUDIX.  379 

is  to  be  governed,  and  is  a  power  complete  in  itself,  acknowledging 

no  limitations  other  than  those  prescribed  in  the  Constitution.     It  i 

is  co-extensive  with  the  subject  on  which    it  acts   and   cannot   be  | 

stopped  at  the  external   boundary  of  a  State,  but   must   enter  its  ,  \ 

interior  and  must  be  capable  of  authorizing  the  disposition  of  those 

articles  which  it  introduces,  so  that  they  may  become  mingled  with  : 

the  common  mass  of  property  within  the  territory  entered.     Gib-  | 

bons  V.  Ogden,  9  Wheat.  1;  Brown  v.  Maryland,  12  Wheat.  419. 

And  while,  by  virtue  of  its  jurisdiction  over  persons  and  property  ^ 

within  its  limits,  a  State  may  provide  for  the  security  of  the  lives,  i 

limbs,  health  and  comfort  of  persons  and  the  protection  of  property 
so  situated,  yet  a  subject  matter  wliich  has  been  confided  exclusively 
to  Congress  by  the  Constitution  is  not  within  the  jurisdiction  of  the  I 

police  power  of  the  State,  unless  placed  there  by  congressional  action.  { 

Henderson  v.  Mayor  of  New  York,  92  U.  S.  259;  Railroad  Co.  v.  , 

Husen,  95  U.  S.  465;  Walling  v.  Michigan,  IIG  U.  S.  446;  Robbins  | 

V.  Shelby  Taxing  District,  120  U.  S.  489.     The  power  to  regulate  ; 

commerce   among   the   States  is  a  unit,  but  if   particular   subjects  ; 

within  its  operation  do  not  require  the  application  of  a  general  or  | 

uniform  system,  the  States  may  legislate  in  regard  to  them  with  a  ' 

view   to  local  needs   and  circumstances,    until  Congress   otherwise  i 

directs;  but  the  power  thus  exercised  by  the  States  is  not  identical  I 

iu  its  extent  with  the  power  to  regulate  commerce  among  the  States.  , 

The  power  to  pass  laws  in  respect  to  internal  commerce,  inspection  i 

laws,  quarantine  laws,  health  laws  and  laws  in  relation  to  bridges, 
ferries  and  highways,  belongs  to  the  class  of  powers  pertaining  to  ] 

locality,  essential  to  local  intercommunication,  to  the  progress  and  ' 

development  of  local  prosperity  and  to  the  protection,  the  safety  and 
the  welfare  of  society,  originally  necessarily  belonging  to,  and  upon  1 

the  adoption  of  the  Constitution  reserved  by,  the  States,  except  so  I 

far  as  falling  within  the  scope  of  a  power  confided  to  the  general 
government.     Where  the  subject  matter  requires  a  uniform  system]  |  ^Z/'^ 
as  between  the  States,  the  power  controlling  it  is  vested  exclusively  "  ^t*^ 

in  Congress,  and  cannot  be  encroached  upon  by  the  States;  but  where,  '; 
in  relation  to  the  subject  matter,  different  rules  may  be  suitable  for  .  j 

different  localities,  the  States  may  exercise  powers  which,  though  \      ,--,  ; 

they  may  be  said  to  partake  of  the  nature  of  the  power  granted  to 
the  general  government,  are  strictly  not  such,  but  are  simply  local 
])owers,  which  have  full  operation  until  or  unless  circumscribed  by^ 
the  action  of  Congress  in  effectuation  of  the  general  power.     Cooley 
V.  Port  Wardens,  12  How.  299. 

It  was  stated  in  the  32d  number  of  the  Federalist  that  the  States 
might  exercise  concurrent  and  independent  power  in  all  cases  but 
three:  First,  where  the  power  was  lodged  exclusively  in  the  Federal 
Constitution ;  second,  where  it  was  given  to  the  United  States  and 
prohibited  to  the  States;  third,  where,  from  the  nature  and  subjects 
of  the  power,  it  must  be  necessarily  exercised  by  the  national  gov- 


380  THE    LEGISLATIVE    DEPARTMENT,  [CHAP.  IV. 

eminent  exclusively.  But  it  is  easy  to  see  that  Congress  may  assert 
an  authority  under  one  of  the  granted  powers,  which  would  exclude 
the  exercise  by  the  States  upon  the  same  subject  of  a  different  but 
similar  power,  between  which  and  that  possessed  by  the  general 
government  no  inherent  repugnancy  existed. 

Whenever,  however,  a  particular  power  of  the  general  government 
is  one  which  must  necessarily  be  exercised  by  it,  and  Congress  re- 
mains silent,  this  is  not  only  not  a  concession  that  the  powers  re- 
served by  the  States  may  be  exerted  as  if  the  specific  power  had  not 
been  elsewhere  reposed,  but,  on  the  contrary,  the  only  legitimate 
conclusion  is  that  the  general  government  intended  that  power 
should  not  be  affirmatively  exercised,  and  the  action  of  the  States 
cannot  be  permitted  to  effect  that  which  would  be  incompatible  with 
such  intention.  Hence,  inasmuch  as  interstate  commerce,  consist- 
ing in  the  transportation,  purchase,  sale  and  exchange  of  commodi- 
ties, ij^  national  in  its  character,  and  must  be  governed  by  a 
uniform  system,  so  long  as  Congress  does  not  pass  any  law  to  regu- 
late it,  or  allowing  the  States  so  to  do,  it  thereby  indicates  its 
will  that  such  commerce  shall  be  free  and  untrammelled.  County 
of  Mobile  v.  Kimball,  102  tJ.  S.  691;  Brown  v.  Houston,  114  U.  S. 
622,  631 ;  Wabash,  St.  Louis,  &c.  Railway  Co.  v.  Illinois,  118  U.  S. 
557 ;  Bobbins  v.  Slielby  Taxing  District,  120  U.  S.  489,  493. 

That  ardent  spirits,  distilled  liquors,  ale  and  beer  are  subjects  of 
exchange,  barter  and  traffic,  like  any  other  commodity  in  which  a 
right  of  traffic  exists,  and  are  so  recognized  by  the  usages  of  the  com- 
mercial world,  the  laws  of  Congress,  and  the  decisions  of  courts,  i-s 
not  denied.  Being  thus  articles  of  commerce,  can  a  State,  in  the 
absence  of  legislation  on  the  part  of  Congress,  prohibit  their  impor- 
tation from  abroad  or  from  a  sister  State  ?  or  when  imported  pro- 
hibit their  sale  by  the  importer  ?  If  the  importation  cannot  be 
prohibited  without  the  consent  of  Congress,  when  does  property  im- 
ported from  abroad,  or  from  a  sister  State,  so  become  part  of  the 
common  mass  of  property  within  a  State  as  to  be  subject  to  its  un- 
impeded control ? 

In  Brown  y.  Maryland,  supra,  the  act  of  the  State  legislature 
drawn  in  question  was  held  invalid  as  repugnant  to  tlie  prohibition 
of  the  Constitution  upon  the  States  to  lay  any  impost  or  duty  upon 
imports  or  exports,  and  to  the  clause  granting  the  power  to  regulate 
commerce;  and  it  was  laid  down  by  the  great  magistrate  who  pre- 
sided over  this  court  for  more  than  a  third  of  a  century,  that  the 
point  of  time  when  the  prohibition  ceases  and  the  power  of  the  State 
to  tax  commences  is  not  the  instant  when  the  article  enters  the 
country,  but  when  the  importer  has  so  acted  upon  it  that  it  has  be- 
come incorporated  and  mixed  up  with  the  mass  of  property  in  the 
country,  which  happens  when  the  original  package  is  no  longer  such 
in  his  hands;  that  the  distinction  is  obvious  between  a  tax  which 
intercepts  the  import  as  an  import  on  its  way  to  become  incorporated 


SECT.  II.  b.  3.]  LEISY    I'.    HARDIN.  381 

with  the  general  mass  of  property,  and  a  tax  which  finds  the  article 
already  incorporated  with  that  mass  by  the  act  of  the  importer;  that 
as  to  the  power  to  regulate  commerce,  none  of  the  evils  wliich  pro- 
ceeded from  the  feebleness  of  the  Federal  Government  contributed 
more  to  the  great  revolution  which  introduced  the  present  system, 
than  the  deep  and  general  conviction   that  commerce   ought  to  be 
regulated  by  Congress;  that  the  grant  should  be  as  extensive  as  the 
mischief,  and  should  comprehend  all  foreign  commerce  and  all  com- 
merce  among  the  States;   that  that  power  was  complete  in  itself, 
acknowledged   no    limitations    other   than   those  prescribed  by  the 
Constitution,  was  co-extensive  with  the  subject  on  which  it  acts  and 
not  to  be  stopped  at  the  external  boundary  of  a  State,  but  must  be 
capa,ble  of  entering  its  interior;  that  the  right  to  sell  any  article  im-  . 
]Dorted  was  an  inseparable  incident   to  the  right  to  import  it;  and 
that  the  principles  expounded  in  the  case  applied  equally  to  impor- 
tations from  a  sister  State.     Manifestly   this  must  be  so,  for  the 
same  public  policy  applied   to   commerce  among   the    States  as  to 
foreign  commerce,  and  not  a  reason  could  be  assigned  for  confiding 
the  power  over  the  one  which  did  not  conduce  to  establish  the  pro- 
priety of  confiding  the  power  over  the  other.     Story,  Constitution, 
§  1066.     And  although  the  precise  question  before  us  was  not  ruled 
in  Gibbons  v.  Ogden  and  Brown  v.  Maryland,  yet  we  think  it  was 
virtually   involved    and   answered,  and   that  this  is  demonstrated, 
among  other  cases,  in  Bowman  v.  Chicago  &  Northwestern  Railway 
Co.,  125  U.  S.  465.     In  the  latter  case,  section  1553  of  the  Code  of 
the  State  of  Iowa  as  amended  by  c.  143  of  the  acts  of  the  twentieth 
General   Assembly  in  1886,   forbidding   common   carriers  to   bring 
.  intoxicating  liquors  into  the  State  from  any  other  State  or  Territory, 
without  first  being  furnished  with  a  certificate  as  prescribed,   was 
declared  invalid,  because  essentially  a  regulation  of  commerce  among 
the  States,  and  not  sanctioned  by  the  authority,  express  or  implied,  of 
Congress.     The  opinion  of  the  court,  delivered  by  Mr.  Justice  j\Iat- 
thews,  the  concurring  opinion  of  Mr.  Justice  Field,  and  the  dissent- 
ing opinion  by  Mr.  Justice  Harlan,  on  behalf  of  Mr.  Chief  Justice 
Waite,  Mr.  Justice  Gray,  and  himself,  discussed  the  question  in- 
volved in  all  its  phases;  and  while  the  determination  of  whether  the 
right  of  transportation  of  an  article  of  commerce  from  one  State  to 
another  includes  by  necessary  implication  the  right  of  the  consignee 
to  sell  it  in  unbroken  packages  at  the  place  where  the  transportation 
terminates  was  in  tm-ms  reserved,  yet  the  argument  of  the  majority 
conducts  irresistibly  to  that  conclusion,  and  we  think  we  cannot  do 
better  than  repeat  the  grounds  upon  wliich  the  decision  was  made  to 
rest.     It  is  there  shown  that  the  transportation  of  freight  or  of  the 
subjects  of  commerce,  for  the  purpose  of  exchange  or  sale,  is  beyond 
all  question  a  constituent   of   commerce  itself;   that   this    was  the 
prominent  idea  in  the  minds  of   the  framers  of   the  Constitution, 
when  to  Congress  was  committed  the  power  to  regulate  commerce 


382  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

among  the  several  States ;  that  the  power  to  prevent  embarrassing 
restrictions  by  any  State  was  the  end  desired;  tliat  the  power  was 
given  by  the  same  words  and  in  the  same  clause  by  which  was  con- 
ferred power  to  regulate  commerce  with  foreign  nations;  and  that 
it  would  be  absurd  to  suppose  that  the  transmission  of  the  subjects 
of  trade  from  the  State  of  the  buyer,  or  from  the  place  of  production 
to  the  market,  was  not  contemplated,  for  without  that  there  could 
be  no  consummated  trade,  either  with  foreign  nations  or  among  the 
States.  It  is  explained  that  where  State  laws  alleged  to  be  regula- 
tions of  commerce  among  the  States  have  been  sustained,  they  were 
laws  which  related  to  bridges  or  dams  across  streams,  wholly  within 
the  State,  or  police  or  health  laws,  or  to  subjects  of  a  kindred  nature, 
not  strictly  of  commercial  regulation.  But  the  transportation  of 
passengers  or  of  merchandise  from  one  State  to  another  is  in  its 
nature  national,  admitting  of  but  one  regulating  power;  and  it  was 
to  guard  against  the  possibility  of  commercial  embarrassments 
which  would  result  if  one  State  could  directly  or  indirectly  tax  per- 
sons or  property  passing  through  it,  or  prohibit  particular  property 
from  entrance  into  the  State,  that  the  power  of  regulating  commerce 
among  the  States  was  conferred  upon  the  Federal  Government. 

"If  in  the  present  case,"  said  Mr.  Justice  Matthews,  "the  law  of 
Iowa  operated  upon  all  merchandise  sought  to  be  brought  from 
another  State  into  its  limits,  there  could  be  no  doubt  that  it  would 
be  a  regulation  of  commerce  among  the  States,"  and  he  concludes 
that  this  must  be  so,  though  it  applied  only  to  one  class  of  articles 
of  a  particular  kind.  The  legislation  of  Congress  on  the  subject  of 
interstate  commerce  by  means  of  railroads,  designed  to  remove  tram- 
mels upon  transportation  between  different  States,  and  upon  the  sub-  ' 
ject  of  the  transportation  of  passengers  and  merchandise,  (Revised 
Statutes,  sections  4252  to  4289,  inclusive,)  including  the  transporta- 
tion of  nitro-glycerine  and  other  similar  explosive  substances,  with 
the  proviso  that,  as  to  them,  "  any  State,  territory,  district,  city,  or 
town  within  the  United  States  "  should  not  be  prevented  by  the 
language  used  "from  regulating  or  from  prohibiting  the  traffic  in  or 
transportation  of  those  substances  between  persons  or  places  lying 
or  being  within  their  respective  territorial  limits,  or  from  prohibiting 
the  introduction  thereof  into  such  limits  for  sale,  use  or  consump- 
tion therein,"  is  referred  to  as  indicative  of  the  intention  of  Congress 
that  the  transportation  of  commodities  between  the  States  shall  be 
free,  except  where  it  is  positively  restricted  by  Congress  itself,  or 
by  States  in  particular  cases  by  the  express  permission  of  Congress. 
It  is  said  that  the  law  in  question  was  not  an  inspection  law,  the 
object  of  which  "  is  to  improve  the  quality  of  articles  produced  by 
the  labor  of  a  country,  to  fit  them  for  exportation;  or,  it  may  be,  for 
domestic  use;"  Gibbons?;.  Ogden,  9  Wheat.  1,  203;  Turner  v.  Mary- 
land, 107  U.  S.  38,  55;  nor  could  it  be  regarded  as  a  regulation  of 
quarantine  or  a  sanitary  provision  for  the  purpose  of  protecting  the 


SECT.  II.  b.  3.]  LEISY   V.    HARDIN. 


383 


physical  health  of  the  community;  nor  a  law  to  prevent  the  intro- 
duction into  the  State  of  diseases,  contagious,  infectious,  or  other- 
wise.    Articles    in  such  a  condition  as  tend  to  spread  disease  are 
not  merchantable,  are  not  legitimate  subjects  of  trade  and  commerce, 
and  the  self-protecting  power  of  each  State,  therefore,  may  be  right- 
fully exerted  against  their  introduction,  and  such  exercise  of  power 
cannot  be  considered  a  regulation  of  commerce,  prohibited  by  the 
Constitution;  and  the  observations  of  Mr.  Justice  Catron,  in  The 
License  Cases,  5  How.  504,  599,  are  quoted  to  the  effect  that  what 
does  not  belong  to  commerce  is  within  the  jurisdiction  of  the  police 
power  of  the  State,  but  that  which  does  belong  to  commerce  is  witliin 
the   jurisdiction    of   the  United   States;  that   to  extend  the  police 
power  over  subjects  of  commerce  would  be  to  make  commerce  subor- 
dinate to  that  power,  and  would  enable  the  State  to  bring  within  the 
police  power  "any  article  of  consumption  that  a  State  might  wish  to 
exclude,  whether  it  belonged  to  that  which  was  drunk  or  to  food  and 
clothing;  and  with  nearly  equal  claims  to  propriety,  as  malt  liquors 
and  the  products   of  fruits  other  than  grapes   stand  on  no   higher 
ground  than  the  light  wines  of  this  and  other  countries,  excluded  in 
effect  by  the  law  as  it  now  stands.     And  it  would  be  only  another 
step  to  regulate  real  or  supposed  extravagance  in  food  and  clothing." 
And  Mr.  Justice  Matthews  thus  proceeds,  p.  493:  "For  the  purpose 
of  protecting  its  people  against  the  evils  of  intemperance,  it  has  the 
right  to  prohibit  the  manufacture  within  its  limits  of  intoxicating 
liquors;  it  may  also  prohibit  all  domestic  commerce  in  them  between 
its  own  inhabitants,  whether  the  articles  are  introduced  from  other 
States  or  from  foreign  countries;  it  may  punish  those  who  sell  them 
in  violation  of  its  laws;  it  may  adopt  any  measures  tending,  even 
indirectly  and  remotely,  to  make  the  policy  effective  until  it  passes 
the  line  of  power  delegated  to  Congress  under  the  Constitution.     It 
cannot,  without  the  consent  of  Congress,  express  or  implied,  regu- 
late commerce  between  its  people  and  those  of  the  other  States  of  the 
Union  in  order  to  effect  its  end,  however  desirable  such  a  regulation  / 
might  be.   .   .   .  Can  it  be  supposed  that  by  omitting  any  express 
declaration  on  the  subject,  Congress  has  intended  to  submit  to  tlie 
several  States  the  decision  of  the  question  in  each  locality  of  what 
shall  and  what  shall  not  be  articles  of  traffic  in  the  interstate  com- 
merce of  the  country  ?     If  so,  it  has  left  to  each  State,  according  to 
its  own  caprice  and  arbitrary  will,   to  discriminate  for  or  against 
every  article  grown,  produced,   manufactured  or  sold  in  any  State  \ 
and  sought  to  be  introduced  as  an    article  of   commerce  into   any  j 
other.     If  the  State  of  Iowa  may  prohibit  the  importation  of  intoxi- 
cating liquors  from  all  other  States,  it  may  also  include  tobacco,  or 
any  other  article,  the  use  or  abuse  of  which  it  may  deem  deleterious. 
It  may  not  choose,  even,  to  be  governed  by  considerations  growing 
out  of  the  health,  comfort  or  peace  of  the  community.     Its  policy 
may  be  directed  to  other  ends.     It  may  choose  to  establish  a  system 


^Ttz^ 


38-4  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

directed  to  tlie  promotion  and  benefit  of  its  own  agriculture,  manu- 
factures, or  arts  of  any  description,  and  prevent  tbe  introduction  and 
sale  within  its  limits  of  any  or  of  all  articles  that  it  may  select  as 
coming  into  competition  with  those  which  it  seeks  to  protect.  The 
police  power  of  the  State  would  extend  to  such  cases,  as  well  as  to 
those  in  which  it  was  'sought  to  legislate  in  behalf  of  the  health, 
peace  and  morals  of  the  people.  In  view  of  the  commercial  anarchy 
and  confusion  that  would  result  from  the  diverse  exertions  of  power 
by  the  several  States  of  the  Union,  it  cannot  be  supposed  that  the 
Constitution  or  Congress  have  intended  to  limit  the  freedom  of  com- 
mercial intercourse  among  the  people  of  the  several  States." 

Many  of  the  cases  bearing  upou  the  subject  are  cited  and  consid- 
ered in  these  opinions,  and  among  others  The  License  Cases,  5  How. 
504,  wherein  laws  passed  by  Massachusetts,  New  Hampshire,  and 
Khode  Island,  in  reference  to  the  sale  of  spirituous  liquors,  came 
under  review  and  were  sustained,  although  the  members  of  tlie  court 
who  participated  in  the  decisions  did  not  concur  in  any  common 
ground  upon  which  to  rest  them.  That  of  Peirce  et  al.  v.  iS^ew 
Hampshire  is  perhaps  the  most  important  to  be  referred  to  here.     In 

_,    that  case  the  defendants  had  been  fined  for  selling  a  barrel  of  gin  in 
'\    New  Plampshire  which  they  had  bought  in  Boston  and  brought  coast- 
wise to  Portsmouth,  and  there  sold  in  the  same  barrel  and  in  the 
V<^     same   condition  in  which  it  was   purchased  in  IMassachusetts,  but 
A^      contrary  to  the  law  of  New  Hampshire  in  that  behalf.     The  conclu- 
sion of  the  opinion  of  Mr.  Chief  Justice  Taney  is  in  these  words,  p. 

'  58G:  "Upon  the  whole,  therefore,  the  law  of  New  Hampshire  is  in 
my  judgment  a  valid  one.  For,  although  the  gin  sold  was  an  import 
from  another  State,  and  Congress  have  clearly  the  power  to  regu- 
late such  importations,  under  the  grant  of  power  to  regulate  com- 

\  merce  among  the  several  States,  yet,  as  Congress  has  made  no 
regulation  on  the  subject,  the  traffic  in  the  article  may  be  lawfully 
regulated  by  the  State  as  soon  as  it  is  landed  in  its  territory,  and 
a  tax  imposed  upon  it,  or  a  license  required,  or  the  sale  altogether 
prohibited,  according  to  the  policy  which  the  State  may  suppose  to 
be  its  interest  or  duty  to  pursue." 

Referring  to  the  cases  of  Massachusetts  and  Ehode  Island,  the 
Chief  Justice,  after  saying  that  if  the  laws  of  those  States  came  in 
collision  with  the  laws  of  Congress  authorizing  the  importation  of 
spirits  and  distilled  liquors,  it  would  be  the  duty  of  the  court  to 
declare  them  void,  thus  continues,  p.  57G:  "It  has,  indeed,  been 
suggested,  that,  if  a  State  deems  the  traffic  in  ardent  spirits  to  be 
injurious  to  its  citizens,  and  calculated  to  introduce  immorality,  vice 
and  pauperism  into  the  St.nte,  it  may  constitutionally  refuse  to  per- 
mit its  importation,  notwithstanding  the  laws  of  Congress;  and  that 
a  State  may  do  this  upon  the  same  principles  that  it  may  resist  and 
prevent  the  introduction  of  disease,  pestilence  or  pauperism  from 
abroad.     But  it  must  be  remembered  that  disease,  pestilence  and 


I 


SECT.  II.  b.  3.]  LEISY   V.    HARDIN.  385 

pauperism  are  not  subjects  of  commerce,  although  sometimes  among 
its   attendant   evils.      They   are   not  things   to   be   regulated   and 
trafficked  in,  but  to  be  prevented,  as  far  as  human  foresight  or  human 
means  can  guard  against  them.     But  spirits  and  distilled  liquors  are 
universally  admitted  to  be  subjects  of  ownership  and  property,  and 
are  therefore  subjects  of  exchange,  barter,  and  traffic,  like  any  other 
commodity  in  which  a  right  of   property  exists.     And   Congress, 
under  its  general  power  to  regulate  commerce  with  foreign  nations, 
may  prescribe  what  article  of  merchandise  shall  be  admitted  and  what 
excluded;  and  may  therefore  admit,  or  not,  as  it  shall  deem  best, 
the  importation  of  ardent  spirits.     And  inasmuch   as  the   laws  of 
Congress  authorize  their  importation,  no  State  has  a  right  to  pro- 
hibit their  introduction.   .   .   .  These  State  laws  act  altogether  upon 
the  retail  or  domestic  traff.c  within  their  respective  borders.     They 
act  upon  the  article  after  it  has  passed  the  line  of  foreign  commerce,      /^ 
and  become  a  part  of  the  general  mass  of   property  in  the  State.     '^ 
These  laws  may,  indeed,  discourage  imports,  and  diminish  the  price      .  -  / 
which  ardent  spirits  would  otherwise  bring.     But  although  a  State      Aj, 
is  bound  to  receive  and  to  permit  the  sale  by  the  importer  of  any  ^^' 
article  of  merchandise  which  Congress  authorizes  to  be  imported,  it 
is   not  bound  to  furnish  a  market   for  it,  nor  to  abstain  from  the 
passage  of  any  law  which  it  may  deem  necessary  or  advisable  to 
guard  the  health  or  morals  of  its  citizens,  although  such  law  may    ' 
discourage  importation,  or  diminish  the  profits  of  the  importer,  or 
lessen  the  revenue  of  the  general  government.     And  if  any  State 
_dee_ms  the  retail  and  internal  traffic  in  ardent  spirits  injurious  to 
its  citizens,  and  calculated  to  produce  idleness,  vice  or  debauchery, 
I  see  nothing  in  the  Constitution  of  the  United  States  to  prevent 
it  from  regulating  and  restraining  the  traffic,  or  from  prohibiting  it 
altogether  if  it  thinks  proper." 

The  New  Hampshire  case,  the  Chief  Justice  observed,  differs  from 
Brown  v.  Maryland,  in  that  the  latter  was  a  case  arising  out  of  com- 
merce with  foreign  nations,  which  Congress  had  regulated  by  law; 
whereas  the  case  in  hand  was  one  of  commerce  between  two  States, 
in  relation  to  which  Congress  had  not  exercised  its  power.  "  But  the 
law  of  New  Hampshire  acts  directly  upon  an  import  from  one  State 
to  another,  while  in  the  hands  of  the  importer  for  sale,  and  is  there- 
fore a  regulation  of  commerce,  acting  upon  the  article  while  it  is 
within  the  admitted  jurisdiction  of  the  General  Government,  and  sub- 
ject to  its  control  and  regulation.  The  question,  therefore,  brought 
up  for  decision  is,  whether  a  State  is  prohibited  by  the  Constitution 
of  the  United  States  from  making  any  regulations  of  foreign  com- 
merce, or  of  commerce  with  another  State,  although  such  regulation 
is  confined  to  its  own  territory,  and  made  for  its  own  convenience 
or  interest,  and  does  not  come  in  conflict  with  any  law  of  Congress. 
In  other  words,  whether  the  grant  of  power  to  Congress  is  of  itself 
a  prohibition  to  the  States,  and  renders  all  State   laws   upon  the 

25 


38G  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  lY. 

subject  null  and  void."  p.  578.  He  declares  it  to  appear  to  him 
very  clear,  p.  579,  "that  the  mere  grant  of  power  to  the  general 
government  cannot,  upon  any  just  principles  of  construction,  be  con- 
strued to  be  an  absolute  prohibition  to  the  exercise  of  any  power  over 
the  same  subject  by  the  States.  The  controlling  and  supreme  power 
over  commerce  with  foreign  nations  and  the  several  States  is  un- 
doubtedly conferred  upon  Congress.  Yet,  in  my  judgment,  the 
State  may,  nevertheless,  for  the  safety  or  convenience  of  trade,  or 
y  '  for  the  protection  of  the  health  of  its  citizens ,  make  regulations  of 
commerce  for  its  own  ports  and  harbors,  and  for  its  own  territory; 
and  such  regulations  are  valid  unless  they  come  in  conflict  with  a 
law  of  Congress."  He  comments  on  the  omission  of  any  prohibi- 
tion in  terms,  and  concludes  that  if,  as  he  thinks,  "the  framers  of 
the  Constitution  (knowing  that  a  multitude  of  minor  regulations 
must  be  necessary,  which  Congress  amid  its  great  concerns  could 
never  find  time  to  consider  and  provide)  intended  merely  to  make 
the  power  of  the  Federal  Government  supreme  upon  this  subject  over 
that  of  the  States,  then  the  omission  of  any  prohibition  is  accounted 
for,  and  is  consistent  with  the  whole  instrument.  The  supremacy  of 
the  laws  of  Congress,  in  cases  of  collision  with  State  laws,  is  secured 
in  the  article  which  declares  that  the  laws  of  Congress,  passed  in  pur- 
suance of  the  powers  granted,  shall  be  the  supreme  law ;  and  it  is  only 
where  both  governments  may  legislate  on  the  same  subject  that  this 
article  can  operate."  And  he  considers  that  the  legislation  of  Con- 
gress and  the  States  has  conformed  to  this  construction  from  the 
foundation  of  the  government,  as  exemplified  in  State  laws  in  relation 
to  pilots  and  pilotage  and  health  and  quarantine  laws. 

But  conceding  the  weight  properly  to  be  ascribed  to  the  judicial 
utterances  of  this  eminent  jurist,  we  are  constrained  to  say  that  the 
distinction  between  subjects  in  respect  of  which  there  can  be  of 
necessity  only  one  system  or  plan  of  regulation  for  the  whole  coun- 
try, and  subjects  local  in  their  nature,  and,  so  far  as  relating  to 
commerce,  mere  aids  rather  than  regulations,  does  not  appear  to  us 
to  have  been  sufficiently  recognized  by  him  in  arriving  at  the  con- 
clusions announced.  That  distinction  has  been  settled  by  repeated 
decisions  of  this  court,  and  "can  no  longer  be  regarded  as  open  to 
re-examination.  After  all,  it  amounts  to  no  more  than  drawing  the 
line  between  the  exercise  of  power  over  commerce  with  foreign 
nations  and  among  the  States  and  the  exercise  of  power  over  purely 
local  commerce  and  local  concerns. 

The  authority  of  Peirce  v.  New  Hampshire,  in  so  far  as  it  rests 
on  the  view  that  the  law  of  New  Hampshire  was  valid  because 
Congress  had  made  no  regulation  on  the  subject,  must  be  regarded  as 
having  been  distinctly  overthrown  by  the  numerous  cases  hereinafter 
referred  to. 

The  doctrine  now  firmly  established  is,  as  stated  by  Mr.  Justice 
Field,  in  Bowman  v.  Chicago,  &c.  Kailway  Co.,  125  U.  S.  507,  "that 


SECT.  II.  1).  3.]  LEISY    V.    HARDIN.  3S7 

where  the  subject  upon  which  Congress  can  act  under  its  commercial  I 
power  is  local  in  its  nature  or  sphere  of  operation,  such  as  harbor  1  ^ 

pilotage,  the  improvement  of  harbors,  the  establishment  of  beacons  j  ! 

and  buoys  to  guide  vessels  in  and  out  of  port,  the  construction  of  j  ^ 

bridges  over  navigable    rivers,  the  erection  of  wharves,   piers  audlf  i 

docks,  and  the  like,  which  can  be  properly  regulated  only  by  special,'  j 

provisions  adapted  to  their  localities,  the  State  can  act  until  Con-  ; 

gress  interferes  and  supersedes  its  authority;  but  where  the  subject  ; 

is  national  in  its  character,  and  admits  and  requires  uniformity  of 
regulation,  affecting  alike  all  the  States,  such  as  transportation  be-j  j 

tween  the  States,   including   the    imi)ortation   of   goods   from    one'  ■ 

State  into  another.  Congress  can  alone  act  upon  it  and  provide  the  ; 

needed  regulations.     The  absence   of   any  law  of  Congress  on  the\  ^ 
subject  is  equivalent  to  its  declaration  that  commerce  in  that  matter^  ^^ 
shall  be  free.     Thus  the  absence  of  regulations  as  to  interstate  com-   X,  ^ 
merce  with  reference  to  any  particular  subject  is  taken  as  a  declara-  >?' 
tion  that  the  importation  of  that  article    into  the  States   shall  be 
unrestricted.     It  is  only  after  the  importation  is  completed,  and  the  .  ^ 

property  imported  has  mingled  with  and  become  a  part  of  the  gen-  <>• 

eral   property  of  the  State,   that   its  regulations   can   act   upon  it,  "! 

except  so  far  as  may  be  necessary  to  insure  safety  in  the  disposition 
of  the  import  until  tlius  mingled." 

The  conclusion  follows  that,  as  the  grant  of  the  power  to  regulate 
commerce    among   the  States,   so  far  as  one  system  is  required,  is  i 

exclusive,  the  States  cannot  exercise  that  power  without  the  assent  , 

of  Congress,   and,   in    the   absence  of  legislation,   it  is  left  for  the  i 

courts  to  determine  when  State  action  does  or  does  not  amount  to 
such  exercise,  or,  in  other  words,  what  is  or  is  not  a  regulation  of  ■  [ 

such  commerce.     When  that  is  determined,  controversy  is  at  an  end.  '  | 

Illustrations  exemplifying  the  general  rule  are  numerous.  j 

[Many  cases  are  cited  and  commented  upon,  which  have  already  j 

been  sufficiently  stated.]  i 

In  Mugler  v.  Kansas,  123  U.  S.  623,  it  was  adjudged  that  "  State  | 

legislation    which    prohibits    the   manufacture  of   spirituous,   malt,  ; 

vinous,  fermented  or  other  intoxicating  liquors  within  the  limits  of  1 

the  State,  to  be  there  sold  or  bartered  for  general  use  as  a  beverage,  | 

does   not   necessarily   infringe   any   right,    privilege   or   immunity  ^ 

secured  by  the  Constitution  of  the  United  States,  or  by  the  amend-  .j 

ments  thereto."  And  this  was  in  accordance  with  our  decisions  in 
Bartemeyer  v.  Iowa,  18  Wall.  129;  Beer  Company  v.  Massachusetts,  j 

97  U.  S."^  25;  and  Foster  v.  Kansas,  112  U.  S.  201.     So  in  Kidd  v.  \ 

Pearson,  128  U.  S.  1,  it  was  held  that  a  State  statute  which  pro-  ' 

vided  (1)  that  foreign  intoxicating  liquors  may  be  imported  into  the  | 

State,  and  there  kept  for  sale  by  the  importer,  in  the  original  pack- 
ages, or  for  transportation  in  such  packages  and  sale  beyond  the 
li'nits  of  the  State;  and  (2)  that  intoxicating  liquors  may  be  manu- 
factured and  sold  within  the  State  for  mechanical,  medicinal,  culin- 


388  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

ary  and  sacramental  purposes,  but  for  no  other,  not  even  for  the 
purpose  of  transportation  beyond  the  limits  of  the  State,  was  not  an 
undertaking  to  regulate  commerce  among  the  States.  And  in  Eilen- 
becker  v.  District  Court  of  Plymouth  County,  134  U.  ^.  31,  40, 
we  affirmed  the  judgment  of  the  Supreme  Court  of  Iowa,  sustain- 
ing the  sentence  of  the  district  court  of  Plymouth  in  that  State, 
imposing  a  fine  of  $500  and  costs,  and  imprisonment  in  jail  for  three 
months,  if  the  fine  was  not  paid  within  thirty  days,  as  a  punisliment 
for  contempt  in  refusing  to  obey  a  writ  of  injunction  issued  by  that 
court,  enjoining  and  restraining  the  defendant  from  selling  or  keep- 
ing for  sale  any  intoxicating  liquors,  including  ale,  wine  and  beer, 
in  Plymouth  County.  Mr.  Justice  Miller  there  remarked:  "If  the 
objection  to  the  statute  is  that  it  authorizes  a  proceeding  in  the 
nabure  of  a  suit  in  equity  to  suppress  the  manufacture  and  sale  of 
intoxicating  liquors  which  are  by  law  prohibited,  and  to  abate  the 
nuisance  which  the  statute  declares  such  acts  to  be,  wherever  carried 
on,  we  respond  that,  so  far  as  at  present  advised,  it  appears  to  us 
that  all  the  powers  of  a  court,  whether  at  common  law  or  in  chan- 
cery, may  be  called  into  operation  by  a  legislative  body  for  the  pur- 
pose of  suppressing  this  objectionable  trafiic;  and  we  know  of  no 
hindrance  in  the  Constitution  of  the  United  States  to  the  form  of 
proceedings,  or  to  the  court  in  which  this  remedy  shall  be  had. 
Certainly,  it  seems  to  us  to  be  quite  as  wise  to  use  the  processes  of 
the  law  and  the  powers  of  a  court  to  prevent  the  evil,  as  to  punish 
the  offence  as  a  crime  after  it  has  been  committed." 

These  decisions  rest  upon  the  undoubted  right  of  the  States  of  the 
ynion  to  control  their  purely  internal  affairs,  in  doing  whicir~they 
exercise  powers  not  surrendered  to  the  na.tional  government;  but 
whenever  the  law  of  the  State  amounts  essentially  to  a  regulation 
of  commerce  with  foreign  nations  or  among  tlie  States,  as  it  does 
when  it  inhibits,  directly  or  indirectly,  the  receipt  of  an  imported 
commodity  or  its  disposition  before  it  has  ceased  to  become  an  arti- 
cle of  trade  between  one  State  and  another,  or  another  country  and 
this,  it  comes  in  conflict  with  a  power  which,  in  this  particular,  has 
been  exclusively  vested  in  the  general  government,  and  is  therefore 
void. 

In  Mugler  v.  Kansas,  supra,  the  court  said  (p.  662)  that  it  could 
not  "shut  out  of  view  the  fact,  within  the  knowledge  of  all,  that 
the  public  health,  the  public  morals  and  the  public  safety  may  be 
endangered  by  the  general  use  of  intoxicating  drinks;  nor  the  fact, 
established  by  statistics  accessible  to  every  one,  that  the  idleness, 
disorder,  pauperism  and  crime  existing  in  the  country  are,  in  some 
degree  at  least,  traceable  to  this  evil."  And  that  "if  in  the  judg- 
ment of  the  Legislature  [of  a  State]  the  manufacture  of  intoxicating 
liquors  for  the  maker's  own  use,  as  a  beverage,  would  tend  to 
cripple,  if  it  did  not  defeat,  the  effort  to  guard  the  community 
against  the  evils  attending  the  excessive  use  of  such  liquors,  it  is 


r 


A 


SECT.  II.  b.  3.]  LEISY    V.   HARDIN.  889 

not  for  the  courts,  upon  their  views  as  to  what  is  best  and  safest  for 
the  community,  to  disregard  the  legislative  determination  of  that 
question.  .  .  .  Nor  can  it  be  said  that  government  interferes  with 
or  impairs  any  one's  constitutional  rights  of  liberty  or  of  property, 
when  it  determines  that  the  manufacture  and  sale  of  intoxicating 
drinks,  for  general  or  individual  use,  as  a  beverage,  are,  or  n)ay 
become,  hurtful  to  society,  and  constitute,  therefore,  a  business  in 
which  no  one  may  lawfully  engage."  Undoubtedly,  it  is  for  the 
legislative  branch  of  the  State  governments  to  determine  whether 
the  manufacture  of  particular  articles  of  traffic,  or  the  sale  of  such 
articles,  will  injuriously  affect  the  public,  and  it  is  not  for  Congress 
to  determine  what  measures  a  State  may  properly  adopt  as  appro- 
priate or  needful  for  the  protection  of  the  public  morals,  the  public 
health  or  the  public  safety;  but  notwithstanding  it  is  not  vested 
with  supervisory  power  over  matters  of  local  administration,  the 
responsibility  is  upon  Congress,  so  far  as  the  regulation  of  inter- 
state commerce  is  concerned,  to  remove  the  restriction  upon  the 
State  in  dealing  with  imported  articles  of  trade  within  its  limits, 
which  have  not  been  mingled  with  the  common  mass  of  property 
therein,  if  in  its  judgment  the  end  to  be  secured  justifies  and  re- 
quires such  action. 

The  plaintiffs  in  error  are  citizens  of  Illinois,  are  not  pharmacists, 
and  have  no  permit,  but  import  into  Iowa  beer,  which  they  sell  in 
original  packages,  as  described.  Under  our  decision  in  Bowman  v. 
Chicago,  &c.  Railway  Co.,  sujyra,  they  had  the  right  to  import  this 
beer  into  that  State,  and  in  the  view  which  we  have  expressed  they 
had  the  right  to  sell  it,  by  which  act  alone  it  would  become  mingled 
in  the  common  mass  of  property  within  the  State.  Up  to  that  point 
of  time,  we  hold  that  in  the  absence  of  congressional  permission  to 
do  so,  the  State  had  no  power  to  interfere  by  seizure,  or  any  other 
action,  in  prohibition  of  importation  and  sale  by  the  foreign  or  non- 
resident importer.  Whatever  our  individual  views  may  be  as  to  the 
deleterious  or  dangerous  qualities  of  particular  articles,  we  cannot 
hold  that  any  articles  which  Congress  recognizes  as  subjects  of 
interstate  commerce  are  not  such,  or  that  whatever  are  thus  recog- 
nized can  be  controlled  by  State  laws  amounting  to  regulations, 
while  they  retain  that  character;  although,  at  the  same  time,  if  / 
directly  dangerous  in  themselves,  the  State  may  take  appropriate  / 
measures  to  guard  against  injury  before  it  obtains  complete  jurisdic-f 
tion  over  them.  To  concede  to  a  State  the  power  to  exclude,  directly 
or  indirectly,  articles  so  situated,  without  congressional  permission, 
is  to  concede  to  a  majority  of  the  people  of  a  State,  represented  in 
the  State  legislature,  the  power  to  regulate  commercial  intercourse 
between  the  States,  by  determining  what  shall  be  its  subjects,  when 
that  power  was  distinctly  granted  to  be  exercised  by  the  people  of 
the  United  States,  represented  in  Congress,  and  its  possession  by  the 


390 


THE   LEGISLATIVE   DEPARTMENT. 


[chap.  IV. 


latter  was  considered  essential  to  that  more  perfect  Union  which  the 
Constitution  was  adopted  to  create.  Undoubtedly,  there  is  difi&culty 
in  drawing  the  line  between  the  municipal  powers  of  the  one  govern- 
ment and  the  commercial  powers  of  the  other,  but  when  that  line  is 
determined,  in  the  particular  instance,  accommodation  to  it,  without 
serious  inconvenience,  may  readily  be  found,  to  use  the  language  of 
Mr.  Justice  Johnson,  in  Gibbons  v.  Ogden,  9  Wheat.  1,  238,  in  "  a 
frank  and  candid  co-operation  for  the  general  good." 

The  legislation  in  question  is  to  the  extent  indicated  repugnant 
to  the  third  clause  of  section  8  of  Art.  1  of  the  Constitution  of  the 
United  States,  and  therefore  the  judgment  of  the  Supreme  Court  of 
Iowa  is 

Reversed  and   the   cause  remanded  for  farther  proceedings 
not  inconsistent  with  this  oijinion.^ 


V 


RHODES  V.  IOWA. 
170  Uuited  States,  412.     1898. 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

The  Chicago,  Burlington,  and  Qaincy  Railroad  Company  was,  in 
1891,  a  common  carrier,  incorporated  under  the  laws  of  Illinois,  and 
operated  among  others  a  line  of  railway  from  Dallas,  Illinois,  to 
Burlington,  Iowa,  and  beyond  said  point.  The  Burlington  and  AVest- 
ern  Railway  Company  was,  at  the  same  date,  a  common  carrier,  incor- 
porated under  the'  laws  of  Iowa,  and  operated  a  line  of  railway  from 
Burlington,  Iowa,  to  Oskaloosa  in  that  State,  with  stations  at  inter- 
vening points,  one  of  which  was  Brighton,  in  Washington  County. 
Both  of  these  corporations  had  a  depot  at  Burlington,  which  they 
jointly  used.  The  two  carriers  had,  at  the  time  stated  and  for  years 
previous  thereto,  between  themselves  joint  freight  tariffs,  by  which 
transportation,  under  a  single  through  jvaynDill,  was  giveiTTo  mei> 
chandise  from  any  station  on  either  of  the  lines  to  any  station  on  the 
line  of  the  other. 

\  In  August,  1891,  the  Dallas  Transportation  Company  delivered  to 
[the  Chicago,  Burlington,  and  Quincy  Railroad  at  Dallas,  Illinois,  a 
wooden  box  stated  to  contain  groceries  consigned  to  William  Horn, 
Brighton,  Iowa.  It  had  been  the  habit  of  the  agent  of  the  Dallas 
company  before  this  date  to  ship  intoxicating  liquors  over  the  Chi- 
cago, Burlington,  and  Quincy.  The  box  in  question  was  receipted 
for  as  through  freight,  and  was  billed  through  in  accordance  with  the 
custom  above  stated,  was  taken  to  Burlington,  Iowa,  there  delivered 
to  the  Burlington  and  W^estern  company,  by  whom  it  was  carried  to 

1  Mr.  Justice  Gray  delivered  a  dissenting  opinion,  in  which  Mr.  Justice  Harlan 
and  Mr.  Justice  Brewer  coucurre'i. 


iSECT.  II.  b.  3.]  RHODES   V.    IOWA.  391 

Brighton.  On  its  arrival  there,  the  package  was  placed  by  the  train- 
men on  the  station  platform,  and  shortly  afterwards  the  plaintiff  in 
error,  who  was  the  station  agent  of  the  Burlington  and  Western,  in 
the  discharge  of  his  duties  opened  the  door  of  the  freig^lrt  house,  and^ 
moved  the  box  into  a  f_re[ght  warehouse,  which  was  about^six  feet 
from  the  platform.  In  about  an  hour  thereafter  the  box  was  seizedV 
by  a  constable  under  a  search  warrant,  on  the  ground  tliat  it  con-  \ 
tained  intoxicating  liquors,  which  proved  to  be  the  truth,  and  sul)se-  ) 
quently  the  liquor  was  condemned  and  ordered  to  be  destroyed,  and 
the  order  was  executed.  At  the  time  of  the  seizure  the  freight  charge 
due  to  the  railways  was  unpaid.  It  was  admitted  that  there  was  noth- 
ing on  the  package  to  notify  the  receiving  railway  of  its  contents, 
unless  such  knowledge  can  be  imputed  from  tlie  nature  of  the  previ- 
ous dealings  of  the  Dallas  company  witli  the  railway.  There  was, 
however,  testimony  showing  that  the  railroad  agent  who  moved  the 
box  from  the  freight  platform  to  the  warehouse  had  reason  to  know  or 
suspect  that  it  contained  liquor,  since  it  was  proven  that,  before  the 
arrival  of  the  box  at  Brighton,  a  mail  carrier  called  at  the  station  and 
asked  for  a  package  consigned  to  William  Horn,  stating  that  one  was 
expected  from  Dallas,  and  that  it  would  contain  intoxicating  liquor. 

The  plaintiff  in  error  was  proceeded  against  by  information  before  \ 
a  justice  of  the  peace,  charging  him  with  the  unlawful  transportation  V 
of  intoxicating  liquors  conveyed  from  Burlington  to  Brighton,  Iowa.  i|4/-> 
This  prosecution  was  under  the  provisions  of  the  statutes  of  the  State  1/ 
of  Iowa,  to  which  we  shall  hereafter  refer.     He  was  convicted,  and' 
sentenced  to  pay  a  fine  of  $100.     An  ajjpeal  from  this  sentence  was 
taken  to  the  District  Court,  where  it  was  affirmed,  in  which  court, 
among  other  defences,  it  was  alleged  that  the  package  in  question\ 
was  not  subject  to  the  jurisdiction  of  the  State  of  Iowa,  because  at  I 
the  time  of  its  removal  from  the  platform  to  the  freight  warehouse^ 
it  was  in  course  of  interstate  commerce  transportation.     The  District 
Court  having  affirmed  the  conviction,  an  appeal  was  taken  to  the 
Supreme  Court  of  the  State  of  Iowa,  where  the  judgment  below  was 
also  affirmed.     State  v.  Rhodes,'  90  Iowa,  496.     To  this  judgment  of 
affirmance  this  writ  of  error  is  prosecuted. 

The  sole  question  presented  for  consideration  is  whether  the  stat- 
ute of  the  State  of  Iowa  can  be  held  to  capply  to  the  box  in  question  I  ^ 
whilst  it  was  in  transit  from  its  point  of  shipment,  Dallas,  Hlinois,  I  / 
to  its  delivery  to  the  consignee  at  the  point  to  which  it  was  con- 
signed. That  is  to  say,  whether  the  law  of  the  State  of  Iowa  can  be 
made  to  apply  to  a  shipment  from  the  State  of  Illinois,  before  the 
arrival,  and  delivery  of  the  merchandise,  without  causing  the  Iowa 
law  to  be  repugnant  to  the  Constitution  of  the  United  States.  / 

[The  statement  of  the  court  with  reference  to  its  previous  decis- 
ions in  Bowman  v.  Chicago  &  Northwestern  Railway,  125  U.  S.  465, 
and  Leisy  v.  Hardin,  135  U.  S.  100,  is  here  omitted,  as  the  later  of 
those  cases,  fully  ex}daining  the  former,  is  given  supra,  p.  378.] 


^^^-^rV-C.    vii-.*.^    /«iU..  ^ 


.v«sZ5 


392  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

The  fundamental   right  which  the  decision  in  the  Bowman  case 
held  to  be  protected  from  the  operation  of  State  laws  by  the  Consti- 
tution of  the  United  States  was  thecontinuity  of  shipment  of  goods 
.       coming  from  ouj  State  into  another  from  the  point  of  transmission 
to  the  point  of  consignment,  aud^the  accomplishment  there  of  tJie 
v*       delivery  covered  by  the  contract.     This  protection  of  the  Constitu- 
J         tion  of  the  United  States  is  plainly  denied  by  the  statute  now  under 
-^  review,  as  its  provisions  are  interpreted  by  the  court  below.     The 

power  which  it  was  held  in  the  Bowman  case  the  State  did  not  pos- 
sess was  that  of  stopping  interstate  shipments  at  the  State  lineBy* 
breaking  their  continuity  and  intercepting  their  course  from  the 
point  of  origin  to  the  point  of  consummation.  The  right  of  a  State 
to  exert  these  very  powers  is  plainly  upheld  by  the  decision  rendered 
below.  It  follows  that  if  the  ruling  in  the  Bowman  case  is  applica- 
ble to  the  question  here  presented,  it  is  decisive  of  this  controveisv, 
and  must  lead  to  a  reversal  of  the  judgment  below  rendered.  The 
claim  is,  however,  and  it  was  upon  this  ground  that  the  court  below 
rested  its  judgment,  that  under  and  by  virtue  of  the  provisions  of 
the  act  of  Congress  of  August  8,  1890,  c.  728,  26  Stat.  313,  the  ruling 
in  the  Bowman  case  is  no  longer  apposite,  as  the  effect  of  the  act  of 
Congress  in  question  was  to  confer  upon  the  State  of  Iowa  the  power 
to  subject  to  its  statutory  regulations  merchandise  shipped  from  an- 
other State  the  moment  it  reached  the  line  of  the  State  of  Iowa,  and 
^  before  the  consummation  of  the  contract  of  shipment  by  arrival  at 

its  destination  and  delivery  there  to  the  consignee.  And  it  is  to  this 
question  that  the  discussion  at  bar  has  mainly  related,  and  upon 
which  a  decision  of  the  cause  really  depends. 

It  is  not  gainsaid  that  the  effect  of  the  act  of  Congress  was  to  de- 
prive the  receiver  of  goods  shipped  from  another  State  of  all  power 
to  sell  the  same  in  the  State  of  Iowa  in  violation  of  its  laws ;  but 
whilst  it  is  thus  conceded  that  the  act  of  Congress  has  allowed  the 
Iowa  law  to  attach  to  the  property  when  brought  into  the  State  be- 
fore sale,  when  it  otherwise  would  not  have  done  so  until  after  sale, 
on  the  other  hand,  it  is  contended  that  the  act  of  Congress  in  no  way 
provides  that  the  laws  of  Iowa  should  apply  before  the  consummation 
by  delivery  of  the  interstate  commerce  transaction.  To  otherwise 
construe  the  act  of  Congress,  it  is  claimed,  would  cause  it  to  give  to 
the  statutes  of  Iowa  extraterritorial  operation,  and  would  render  the 
act  of  Congress  repugnant  to  the  Constitution  of  the  United  States. 
/LtLJias  been  settled  that  the  effect  of  the.  act  of  Cou^ressjis  to  allow^ 
the  statutes  of  the  several  States  to  operate  upon  packages  of  imported 
liquor  before  sale.     In  re  Rahrer,  140  U.  S.  o-^o. 

Did  the  act  of  Congress  referred  to  operate  to  attach  the  legisla- 
tion of  the  State  of  Iowa  to  the  goods  in  question  the  moment  they 
reached  the  State  line,  and  before  the  completion  of  the  act  of  trans- 
portation, by  arriving  at  the  point  of  consignment  and  the  delivery 
there  to  the  consi^jnee  is  then  the  pivotal  question  ?  The  act  of 
Congress  is  as  follows  :  — 


SECT.  II.  b.  3.] 


RHODES    V.    IOWA. 


m 


"  That  all   fermented,   distilled,  or  other  intoxicating  liquors  or  ' 
liquids  transported  into  arij-  State  or  Territory,  or  remaining  therein  > 

for  use,  consumption,  sale,  or  storage  therein,  shall,  upon  arrival  in  ^^ 

such  State  or  Territory,  be  subject  to  the  operation  and  effect  of  the 
laws"of  such  State  or  Territory,  enacted  in  the  exercise  of  its  police 
powers,  to  the  same  extent  and  in  the  same  manner  as  though  such 
liquids  or  liquors  had  been  produced  in  such  State  or  Territory,  and 
shall  not  be  exempt  therefrom  by  reason  of  being  introduced  therein 
in  original  packages  or  otherwise." 

The  words  "shall  upon  arrival  in  such  State  or  Territory  be  sub- 
ject to  the  operation  and  effect  of  the  laws  of  such  State  or  Terri-I 
tory,"  in  one  sense  might  be  held  to  mean  arrival  at  the  State  line.', 
But  to  so  interpret  them  would  necessitate  isolating  these  words 
from  the  entire  context  of  the  act,  and  would  compel  a  constructioa] 
destructive  of  other  provisions  contained  therein.  But  this  would 
violate  the  fundamental  rule  requiring  that  a  law  be  construed  as  a 
■whole,  and  not  by  distorting  or  magnifying  a  particular  word  found 
in  it.  It  is  clearly  contemplated  that  the  word  "arrival"  signified 
that  the  goods  should  actually  come  into  the  State,  since  it  is  pro- 
vided that  "  all  fermented,  distilled,  or  other  intoxicating  liquors  or 
liquids  transported  into_  a  State  or  Territory,"  and  this  is  further 
accentuated  by  the  other  provision,  "or  remaining  therein  for  use, 
consumption,  sale,  or  storage  therein." 

This  language  makes  it  impossible  in  reason  to  hold  that  the  law 
intended  that  the  word  "arrival"  should  mean  at  the  State  line, 
since  it  presupposes  the  coming  of  the  goods  into  the  State  for  "  use, 
consumption,  sale,  or  storage."     The  fair  inference  from  the  enume- 
ration of  these  conditions,  which  are  all-embracing,  is  that  the  time 
when  they  could  arise  was  made  the  test  by  which  to  determine  the 
period  when  the  operation  of  the  State  law  should  attach  to  goods 
brought  into  the   State.     But  to   uphold  the  meaning  of  the  word? 
"  arrival,"  which  is  necessary  to  support  the  State  law,  as  construed' 
below,  forces  the  conclusion  that  the  act  of  Congress  in  question  au.f 
thorized  State  laws  to  forbid  the  bringing  into  the  State  at  all.     This  ^ 
follows  from  the  fact  that  if  arrival  means  crossing  the  line,  then  ' 
the  act  of  crossing  into  the  State  would  be  a  violation  of  the  State 
law,  and  hence  necessarily  the  operation  of  the  law  is  to  forbid  cross- 
ing the  line  and  to  compel  remaining  beyond  the  same.     Thus,  if  the 
construction  of  the  word  "  arrival "  be  that  which  is  claimed  for  it,  it ,  ^  , 
must  be  held  that  the  State  statute  attached  and  operated  beyond  the  |  M 
State  line  confessedly  before  the  time  when  it  was  intended  by  the      . 
act  of  Congress  it  should  take  effect. 

But  the  subtle  signification  of  words  and  the  niceties  of  verl)al 
distinction  furnish  no  safe  guide  for  construing  the  act  of  Congress. 
On  the  contrary,  it  should  be  interpreted  and  enforced  by  the  light 
of  the  fundamental  rule  of  carrying  out  its  purpose  and  object,  of 
affording  the  remedy  which  it  was  int3nded  to  create,  and  of  defeat- 


C 


394  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

ing  the  wrong  which  it  was  its  purpose  to  frustrate.  Undoubtedly 
the  purpose  of  the  act  was  to  enable  the  laws  of  the  several  States  to 
control  the  character  of  merchandise  therein  enumerated  at  an  earlier 
date  than  would  have  been  otherwise  the  case ;  but  it  is  equally  un- 
questionable that  the  act  of  Congress  manifests  no  purpose  to  confer 
upon  the  States  the  power  to  give  their  statutes  an  extraterritorial 
operation  so  as  to  subject  persons  and  property  beyond  their  borders 
to  the  restraints  of  their  laws.  If  the  act  of  Congress  be  construed 
as  reaching  the  contract  for  interstate  shipment  made  in  another 
State,  the  necessary  effect  must  be  to  give  to  the  laws  of  the  several 
States  extraterritorial  operation,  for,  as  held  in  the  Bowman  case, 
the  inevitable  consequence  of  allowing  a  State  law  to  forbid  inter- 
state shipments  of  merchandise  would  be  to  destroy  the  right  to 
contract  beyond  the  limits  of  the  State  for  such  shipments.     If  the 

(construction  claimed  be  upheld,  it  would  be  in  the  power  of  each 
State  to  compel  every  interstate  commerce  train  to  stop  before  cross- 
ing its  borders,  and  discharge  its  freight,  lest  by  crossing  the  line  it 
might  carry  within  the  State  merchandise  of  the  character  named 
covered  by  the  inhibitions  of  a  State  statute.  The  force  of  this  view 
is  well  illustrated  by  the  conclusions  of  the  court  below,  where  it  is 
said :  — 

"  Was  the  defendant,  in  the  removal  of  the  liquor,  engaged  in 
transporting  or  conveying  it  within  the  meaning  of  our  statute? 
The  language  of  the  statute  is  broad  enough  to  cover  the  act  of  de- 
fendant in  removing  the  liquor  from  the  platform  to  the  freight  room 
of  the  depot.  He  was  one  of  the  instruments  necessary  to  complete 
the  act  of  transportation.  If  it  be  not  so,  then  clearly  he  is  within 
the  terms  of  the  act,  as  he  conveyed  '  the  liquor  from  one  point  to 
another  within  this  State.'  His  guilt  is  not  to  be  determined  by  the 
distance  he  conveyed  the  package,  but  his  conveying  it  any  distance 
was  a  violation  of  the  law.  With  the  propriety  of  legislation,  mak- 
ing such  an  act  a  crime,  and  with  the  severity  of  the  punishment 
attached  to  doing  the  act,  we  have  nothing  to  do." 

If  it  had  been  the  intention  of  the  act  of  Congress  to  provide  for 
I  the  stoppage  at  the  State  line  of  every  interstate  commerce  contract 
/  relating  to  the  merchandise  named  in  the  act,  such  purpose  would 
\  have  been  easy  of  expression.     The  fact  that  sucli  power  was  not 
conveyed,  and  that,  on  the  contrary,  the  language  of  the  statute  re- 
lates to  the  receipt  of  the  goods  "  into  any  State  or  Territory  for  use, 
consumi)tion,  sale,  or  storage  therein,"  negatives  the  correctness  of 
the  interpretation  holding  that  the  receipt  into  any  State  or  Terri- 
tory for  the  purposes  named  could  never  take  place.     Light  is  thrown 
upon  the  purpose  and  spirit  of  the  act  by  another  consideration.    The 
Bowman  case  was  decided  in  1888,  the  opinion  in  Leisy  ?;.  Hardin 
was  announced  in   April, -1890,  the  act  under  consideration  was  ap- 
proved August  8,  1890.     Considering  these  dates,  it  is  reasonable  to 
infer  that  the  provisions  of  the  act  were  intended  by  Congress  to 


SECT.  II.  b.  3.]  RHODES    V.    lOVTA.  395 

cause  the  legislative  authority  of  the  respective  States  to  attach  to 
intoxicating  liquors  coming  into  the  States  by  an  interstate  ship- 
ment, only  after  the  consummation  of  the  shipment,  but  before"  the 
sale  of  the  merchandise,  —  that  is,  that  the  one  receiving  merchandise 
of  the  character  named  should,  whilst  retaining  the  full  right  to  use 
the  same,  no  longer  enjoy  the  right  to  sell  free  from  the  restrictions 
as  to  sale  created  by  State  legislation,  a  right  which  the  decision  in 
Leisy  v.  Hardin  had  just  previously  declared  to  exist. 

This  view  gives  meaning  and  effect  to  the  language  of  the  act  pro- 
viding that  such  merchandise  "  shall  not  be  exempt  therefrom " 
(legislative  power  of  the  State)  by  reason  of  being  introduced  therein 
in  "original  packages  or  otherwise."  These  words  have  no  place  or 
meaning  in  the  act  if  its  purpose  was  to  attach  the  power  of  the 
State  to  the  goods  before  the  termination  of  the  interstate  commerce 
shipment.  The  words  "  original  packages  "  had,  at  the  time  of  the 
passage  of  the  act  by  the  decisions  of  this  court,  acquired  with  refer- 
ence to  the  construction  of  the  Constitution  a  technical  meaning, 
signifying  that  the  merchandise  in  such  packages  was  entitled  to  be 
sold  within  a  State  by  the  receiver  thereof,  although  State  laws 
might  forbid  the  sale  of  merchandise  of  like  character  not  in  such 
packages. 

It  follows  from  this  conclusion  that  as  the  act  for  which  the  plain-^        |X 
tiff  in  eri'or  was  convicted,  and  which  consisted  in  moving  the  goocis''  ^"    ' 
"from  the  platform  to  the  freight  warehouse,  was  a  part  of  the  inter- 
"state  commerce  transportation,  and  was  done  before  the  law  of  Iowa 
could  constitutionally  attach  to  the  goods,  the  conviction  was  erro- 
neous, and  the  judgment  below  is,  therefore,  Reversed}    J         -Vr 

^  Mr.  Justice  Gray  rendered  a  dissentiug  opinion,  in  wliicli  Mr.  Justice  Har- 
lan and  Mr.  Justice  Brown  concurred. 

As  to  C.  0.  D.  shipments  of  liquor  from  one  state  into  another  see  American  E.\- 
press  Company  v.  Iowa,  196  U.  S.  133,  25  Sup.  Ct.  Rep.  182  (1905).  In  Keymann 
Brewing  Company  v.  Bkister,  179  U.  S.  44.5,  21  Sup.  Ct.  Kej).  201  (1900),  it  was  iield 
that  a  state  tax  on  the  business  of  trafficing  in  intoxicating  licjuors  was  valid  as  to  tlie 
foreign  manufacturer  who  maintained  a  place  of  business  in  the  State  for  storing  and 
selling  such  liquors;  and  in  Delamater  v.  South  Dakota,  205  U.  S.  93,  27  Suj).  Ct. 
Hep.  447  (1907),  that  a  State  licen.-^e  tax  might  be  imposed  on  traveling  salesmen  solicit- 
ing orders  for  intoxicating  liquors  including  those  taking  orders  for  liquors  to  be 
shipped  into  the  State. 


\ 


'4 


fy 

/^5 


/C^-- 

^/r 


i. 


396  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 


SCHOLLENBERGER   v.    PENNSYLVANIA. 
171  United  States,  1.     1898. 

The  plaintiffs  in  error  were  indicted  for  and  convicted  of  a  viola- 
tion of  a  statute  of  Pennsylvania  [making  the  sale  of  oleomargarine 
a  misdemeanor].     It  provides  as  follows : 

"That  no  person,  firm,  or  corporate  body  shall  manufacture  out  of 
any  oleaginous  substance  or  any  compound  of  the  same,  other  than 
that  produced  from  unadulterated  milk  or  of  cream  from  the  same, 
any  article  designed  to  take  the  place  of  butter  or  cheese  produced 
from  pure  unadulterated  milk,  or  cream  from  the  same,  or  of  an}- 
imitation  or  adulterated  butter  or  cheese,  nor  shall  sell  or  offer  for 
sale,  or  have  in  his,  her  or  their  possession  with  intent  to  sell  the 
same  as  an  article  of  food." 

[From  the  special  verdict  of  the  jury  it  appeared  that  Schollen- 
berger,  agent  for  the  sale  in  Pennsylvania  of  oleomargarine  manu- 
factured in  Rhode  Island,  had  complied  with  the  provisions  of  the 
act  of  Congress  relating  to  such  sale,  and  that  a  tub  of  oleomargarine 
packed,  stamped,  and  branded,  as  required  by  that  act  and  shipped  by 
the  manufacturer  to  said  agent,  was  sold  by  him  as  a  wholesaler  in 
the  same  form  to  one  purchasing  as  an  article  of  food.  Upon  this 
special  verdict  the  trial  coixrt  entered  judgment  for  defendant,  but  on 
appeal  to  the  State  Supreme  Court  the  judgment  was  reversed  (170 
Penn.  St.  284),  and  the  case  remanded  to  the  lower  court  that  de- 
fendant might  be  sentenced.  The  defendant  appealed  from  this 
judgment.] 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court. 

The  Supreme  Court  of  the  State  upheld  the  statute  upon  the  ground 
that  it  was  a  legitimate  exercise  of  the  police  power  of  the  State  not 
inconsistent  with  the  right  of  the  owner  of  the  product  to  bring  it 
within  the  State  in  appropriate  packages  suitable  for  sale  to  the 
wholesale  dealer  and  not  intended  for  sale  at  retail  by  the  importer 
to  the  consumer,  and  that  in  the  cases  under  consideration  the  pack- 
ages were  not  wholesale  original  packages  and  their  sale  amounted  to 
a  mere  retail  trade. 

Upon  the  first  ground  for  sustaining  the  conviction  in  these  cases 
the  argument  upon  the  part  of  the  Commonwealth  runs  somewhat  as 
follows:  It  may  be  admitted  that  actually  pure  oleomargarine  is  not 
dangerous  to  the  public  health,  but  whether  it  be  pure  depends  upon 
the  method  of  its  manufacture,  and  its  purity  cannot  be  ascertained 
by  any  superficial  examination,  and  any  certain  and  effective  super- 
vision of  the  method  of  its  manufacture  is  impossible.  It  is  manu- 
factured to  imitate  in  its  appearance  butter,  with  a  view  to  deceiving 


SECT.  II.  b.  3.]       SCHCLLENBERGER   V.   PENNSYLVANIA.  397 

the  ultimate  consumer  as  to  its  character,  and  this  deception  cannot 
be  avoided  by  coverings,  labels  or  marks  upon  the  product;  the 
legislature  of  Pennsylvania  was  therefore  so  far  justified  in  protect- 
ing its  citizens  against  oleomargarine  by  prohibiting  its  sale;  that 
the  legislation  in  question  does  not  discriminate  in  favor  of  the 
citizens  of  Pennsylvania  or  in  any  manner  against  any  particular 
State  or  any  particular  manufacturer  of  the  article,  and,  as  there  is 
nothing  in  the  case  tending  to  prove  the  contrary,  it  must  be  as- 
sumed that  the  legislation  was  enacted  in  good  faith  for  the  protec- 
tion of  the  health  of  the  citizens  and  for  the  prevention  of  deception, 
and  as  such  legislation  did  not  hamper  the  actual  transportation  of 
merchandise,  the  statute  must  be  held  to  be  within  the  power  of  the 
legislature  to  enact,  and  is  therefore  valid;  at  all  events,  the  State 
has  a  right  in  cases  of  newly  invented  food  products  to  determine 
for  its  citizens  the  question  whether  they  are  wholesome  and  non- 
deceptive,  and  that  oleomargarine  is  one  of  that  class  of  products, 
and  is  necessarily  subject  to  the  right  of  the  State  either  to  regulate 
or  absolutely  to  prohibit  its  sale. 

In  the  examination  of  this  subject  the  first  question  to  be  consid- 
ered is  whether  oleomargarine  is  an  article  of  commerce  ?  No 
affirmative  evidence  from  witnesses  called  to  the  stand  and  speaking 
directly  to  that  subject  is  found  in  the  record.  We  must  determine 
the  question  with  reference  to  those  facts  which  are  so  well  and 
universally  known  that  courts  will  take  notice  of  them  without  par- 
ticular proof  being  adduced  in  regard  to  them,  and  also  by  reference 
to  those  dealings  of  the  commercial  world  which  are  of  like 
notoriety. 

Any  legislation  of  Congress  upon  the  subject  must,  of  course,  be 
regarded  by  this  court  as  a  fact  of  the  first  importance.  If  Congress 
has  affirmatively  pronounced  the  article  to  be  a  proper  subject  of 
commerce,  we  should  rightly  be  influenced  by  that  declaration.  By 
reference  to  the  statutes  we  discover  that  Congress  in  1886  passed 
"An  act  defining  butter,  also  imposing  a  tax  upon  and  regulating  the 
manufacture,  sale,  importation  and  exportation  of  oleomargarine." 
Act  of  August  2,  1886,  c.  840,  24  Stat.  209.  In  that  statute  we  find 
that  Congress  has  given  a  definition  of  the  meaning  of  oleomargarine 
and  has  imposed  a  special  tax  on  the  manufacturers  of  the  article, 
on  wholesale  dealers,  and  upon  retail  dealers  therein  and  the  provi- 
sions of  the  Revised  Statutes  in  relation  to  special  taxes  are,  so  far 
as  applicable,  made  to  extend  to  the  special  taxes  imposed  by  the 
third  section  of  the  act,  and  to  the  persons  upon  whom  they  are  im- 
posed. Manufacturers  are  required  to  file  with  the  proper  collector 
of  internal  revenue  such  notices,  and  to  keep  such  books  and  conduct 
their  business  under  such  supervision  as  the  Commissioner  of  Inter- 
nal Revenue,  with  the  approval  of  the  Secretary  of  the  Treasury, 
may  by  regulation  require.  Provision  is  made  for  the  packing  of 
oleomargarine  by  the  manufacturer  in  packages  containing  not  less 


398  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

than  ten  pounds  and  marked  as  prescribed  in  the  act,  and  it  pro- 
vides that  all  sales  made  by  manufacturers  of  oleomargarine  and 
wholesale  dealers  in  oleomargarine  shall  be  in  the  original  stamped 
packages.  A  tax  of  two  cents  per  pound  is  laid  upon  oleomargarine, 
to  be  paid  by  the  manufacturer,  and  the  tax  levied  is  to  be  repre- 
sented by  coupon  stamps.  Oleomargarine  imported  from  foreign 
countries  is  taxed,  in  addition  to  the  import  duty  imposed  on  the 
same,  an  internal  revenue  tax  of  fifteen  cents  per  pound.  Provision 
is  made  for  warehousing,  and  a  penalty  imposed  for  selling  the  oleo- 
margarine thus  imported  if  not  properly  stamped.  Provision  is  also 
made  for  the  appointment  of  an  analytical  chemist  and  microscopist 
by  the  Secretary  of  the  Treasury,  and  such  chemist  or  microscopist 
may  examine  the  different  substances  which  may  be  submitted  in 
contested  cases,  and  the  Commissioner  of  Internal  Revenue  is  to 
decide  in  such  cases  as  to  the  taxation,  and  his  decision  is  to  be 
final.  The  Commissioner  is  also  empowered  to  decide  "  whether  any 
substance  made  in  imitation  or  semblance  of  butter  and  intended  for 
human  consumption,  contains  ingredients  deleterious  to  the  public 
health;  but  in  case  of  doubt  or  contest  his  decisions  in  this  class  of 
cases  may  be  a])pealed  from  to  a  board  hereby  constituted  for  the 
purpose,  composed  of  the  Surgeon  General  of  the  Army,  the  Sur- 
geon General  of  the  Navy  and  the  Commissioner  of  Agriculture,  and 
the  decisions  of  this  board  shall  be  final  in  the  premises."  Provi- 
sion is  also  made  for  the  removal  of  oleomargarine  from  the  place 
of  its  manufacture  for  export  to  a  foreign  country  without  payment 
of  tax  or  afl&xing  of  stamps  thereto,  and  there  is  a  penalty  denounced 
against  any  person  engaged  in  carrying  on  the  business  of  oleomar- 
garine who  should  defraud  or  attempt  to  defraud  the  United  States 
of  the  tax. 

This  act  shows  that  Congress  at  the  time  of  its  passage  in  1886 
recognized  the  article  as  a  proper  subject  of  taxation  and  as  one 
which  was  the  subject  of  traffic  and  of  exportation  to  foreign  coun- 
ti'ies  and  of  importation  from  such  countries.  Its  manufacture  was 
recognized  as  a  lawful  pursuit,  and  taxation  was  levied  upon  the 
manufacturer  of  the  article,  upon  the  wholesale  and  retail  dealers 
therein,  and  also  upon  the  article  itself. 

Upon  all  these  facts  we  think  it  apparent  that  oleomargarine  has 
become  a  proper  subject  of  commerce  among  the  States  and  with  for- 
eign nations. 

The  general  rule  to  be  deduced  from  the  decisions  of  this  court 
is  that  a  lawful  article  of  commerce  cannot  be  wholly  excluded  from 
importation  into  a  State  from  another  State  where  it  was  manufac- 
tured or  grown.  A  State  has  power  to  regulate  the  introduction  of 
any  article,  including  a  food  product,  so  as  to  insure  purity  of  the 
article  imported,  but  such  police  power  does  not  include  the  total 
exclusion  even  of  an  article  of  food. 


SECT.  II.  b.  3.]   SCHOLLENBERGER  V,    PENNSYLVANIA.  399 

We  do  not  think  the  fact  that  the  article  is  subject  to  be  adulter- 
ated by  dishonest  persons,  in  the  course  of  its  manufacture,  with 
other  substances,  which  it  is  claimed  may  in  some  instances  become 
deleterious  to  health,  creates  the  right  in  any  State  through  its  legis- 
lature to  forbid  the  introduction  of  the  unadulterated  article  into  the 
State.  The  fact  that  tlie  article  is  liable  to  adulteration  in  the 
course  of  manufacture,  and  that  the  articles  with  which  it  may  be 
mixed  may  possibly  and  under  some  circumstances  be  deleterious  to 
the  health  of  those  who  consume  it,  is  known  to  us  by  means  of 
various  references  to  the  subject  in  books  and  encyclopaedias,  but 
there  was  no  affirmative  evidence  offered  on  the  trial  to  prove  the 
fact.  From  these  sources  of  information  it  may  be  admitted  that 
oleomargarine  in  the  course  of  its  manufacture  may  sometimes  be 
adulterated  by  dishonest  manufacturers  with  articles  that  possibly 
may  become  injurious  to  health.  Conceding  the  fact,  we  yet  deny 
the  right  of  a  State  to  absolutely  prohibit  the  introduction  within  its 
borders  of  an  article  of  commerce,  which  is  not  adulterated  and 
which  in  its  pure  state  is  healthful,  simply  because  such  an  article 
in  the  course  of  its  manufacture  may  be  adulterated  by  dishonest 
manufacturers  for  purposes  of  fraud  or  illegal  gains.  The  bad 
article  may  be  prohibited,  but  not  the  pure  and  healthy  one. 

It  is  claimed,  however,  that  the  very  statute  under  consideration 
has  heretofore  been  held  valid  by  this  court  in  the  case  of  Powell  v. 
Pennsylvania,  127  U.  S.  678.  That  case  did  not  involve  rights 
arising  under  the  commerce  clause  of  the  Federal  Constitution.  The 
article  was  manufactured  and  sold  within  the  State,  and  the  question 
was  one  as  to  the  police  power  of  the  State  acting  upon  a  subject 
always  within  its  jurisdiction.  The  plaintiff  in  error  was  convicted 
of  selling  within  the  Commonwealth  two  cases  containing  five  pounds 
each  of  an  article  of  food  designed  to  take  the  place  of  butter,  the 
sale  having  taken  place  in  the  city  of  Harrisburg,  and  it  was  part  of 
a  quantity  manufactured  in  and,  as  alleged,  in  accordance  with  the 
laws  of  the  Commonwealth.  The  plaintiff  in  error  claimed  that  the 
statute  under  which  his  conviction  was  had  was  a  violation  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 
This  court  held  that  the  statute  did  not  violate  any  provision  of  that 
Amendment,  and  therefore  held  that  the  conviction  was  valid. 

The  Powell  case  did  not  and  could  not  involve  the  rights  of  an 
importer  under  the  commerce  clause.  The  right  of  a  State  to  enact 
laws  in  relation  to  the  administration  of  its  internal  affairs  is  one 
thing,  and  the  right  of  a  State  to  prevent  the  introduction  within 
its  limits  of  an  article  of  commerce  is  another  and  a  totally  different 
thing.  Legislation  which  has  its  elfect  wholly  within  the  State  and 
upon  products  manufactured  and  sold  therein  might  be  held  valid 
as  not  in  violation  of  any  provision  of  the  Federal  Constitution, 
when  at  the  same  time  legislation  directed  towards  prohibiting  the 


400  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

importation  within  the  State  of  the  same  article  manufactured  out- 
side of  its  limits  might  be  regarded  as  illegal  because  iu  violation  of 
the  rights  of  citizens  of  other  States  arising  under  the  commerce 
clause  of  that  instrument. 

Nor  is  the  question  determined  adversely  to  this  view  in  the  case 
of  Plumley  v.  Massachusetts,  155  U.  S.  462.  The  statute  in  that 
case  prevented  the  sale  of  this  substance  in  imitation  of  yellow 
butter  produced  from  pure  unadulterated  milk  or  cream  of  the  same, 
and  the  statute  contained  a  proviso  that  nothing  therein  should  be 
"construed  to  prohibit  the  manufacture  or  sale  of  oleomargarine  in 
a  separate  or  distinct  form  and  in  such  manner  as  will  advise  the 
consumer  of  its  real  character,  free  from  coloration  or  ingredients 
that  cause  it  to  look  like  butter."  This  court  held  that  a  conviction 
under  that  statute  for  having  sold  an  article  known  as  oleomargarine, 
not  produced  from  unadulterated  milk  or  cream,  but  manufactured 
in  imitation  of  yellow  butter  produced  frovi  pure  unadulterated  milk 
or  cream,  ivas  valid.  Attention  was  called  in  the  opinion  to  the 
fact  that  the  statute  did  not  prohibit  the  manufacture  or  sale  of  all 
oleomargarine,  but  only  such  as  was  colored  in  imitation  of  yellow 
butter  produced  from  unadulterated  milk  or  cream  of  such  milk.  If 
free  from  coloration  or  ingredient  that  caused  it  to  look  like  butter, 
the  right  to  sell  it  in  a  separate  and  distinct  form  and  in  such  man- 
ner as  would  advise  the  consumer  of  the  real  character  was  neither 
restricted  nor  prohibited.  The  court  held  that  under  the  statute  the 
party  was  only  forbidden  to  practise  in  such  matters  a  fraud  upon 
the  general  public;  that  the  statute  seeks  to  suppress  false  pretences 
and  to  promote  fair  dealing  in  the  sale  of  an  article  of  food,  and  that 
it  compels  the  sale  of  oleomargarine  for  what  it  really  is  by  prevent- 
ing its  sale  for  what  it  is  not;  that  the  term  "commerce  among  the 
States  "  did  not  mean  a  recognition  of  a  right  to  practise  a  fraud 
upon  the  public  in  the  sale  of  an  article  even  if  it  had  become  the 
subject  of  trade  in  different  parts  of  the  country.  It  was  said  that 
the  Constitution  of  the  United  States  did  not  take  from  the  States 
the  power  of  preventing  deception  and  fraud  in  the  sale  within 
their  respective  limits  of  articles,  in  whatever  State  manufactured, 
and  that  that  instrument  did  not  secure  to  any  one  the  privilege  of 
committing  a  wrong  against  society. 

[Commonwealth  v.  Schollenberg,  156  Penn.  St.  201,  and  the 
opinion  of  the  Pennsylvania  court  in  the  present  case  are  considered, 
and  various  cases,  most  of  them  already  given  or  discussed,  are 
cited  and  commented  upon.] 

We  are  not  aware  of  any  such  distinction  as  is  attempted  to  be 
drawn  by  the  court  below  in  these  cases  between  a  sale  at  wholesale 
to  individuals  engaged  in  the  wholesale  trade  or  one  at  retail  to  the 
consumer.  How  small  may  be  an  original  package  it  is  not  neces- 
sary to  here  determine.     We  do  say  that  a  sale  of  a  ten  pound  pack- 


SECT.  II.  b.  8.]  COLLINS    V.   NEW   HAMPSHIRE.  401 

age  of  oleomargarine,  manufactured,  packed,  marked,  imported  and 
sold  under  the  circumstances  set  forth  in  detail  in  the  special  ver- 
dict, was  a  valid  sale,  although  to  a  person  who  was  himself  a  con- 
sumer. We  do  not  say  or  intimate  that  this  right  of  sale  extended 
beyond  the  first  sale  by  the  importer  after  its  arrival  within  the 
State.  Waring  v.  The  Mayor,  8  Wall.  110,  122.  The  importer 
had  the  right  to  sell  not  only  personally,  but  he  had  the  right  to 
employ  an  agent  to  sell  for  him.  Otherwise  his  right  to  sell  would 
be  substantially  valueless,  for  it  cannot  be  supposed  that  he  would 
be  personally  engaged  in  the  sale  of  every  original  package  sent  to 
the  different  States  in  the  Union.  Having  the  right  to  sell  through 
his  agent,  a  sale  thus  effected  is  valid. 

The  right  of  the  importer  to  sell  cannot  depend  upon  whether  the 
original  package  is  suitable  for  retail  trade  or  not.  His  right  to 
sell  is  the  same,  whether  to  consumers  or  to  wholesale  dealers  in 
the  article,  provided  he  sells  them  in  original  packages.  This 
does  not  interfere  with  the  acknowledged  right  of  the  State  to  use 
such  means  as  may  be  necessary  to  prevent  the  introduction  of  an 
adulterated  article,  and  for  that  purpose  to  inspect  and  test  the 
article  introduced,  provided  the  State  law  does  really  inspect  and 
does  not  substantially  prohibit  the  introduction  of  the  pure  article 
and  thereby  interfere  with  interstate  commerce.  It  cannot  for  the 
purpose  of  preventing  the  introduction  of  an  impure  or  adulterated 
article  absolutely  prohibit  the  introduction  of  that  which  is  pure  and 
wholesome.  The  act  of  tlie  Legislature  of  Pennsylvania,  under 
consideration,  to  the  extent  that  it  prohibits  the  introduction  of 
oleomargarine  from  another  State  and  its  sale  in  the  original  pack- 
age, as  described  in  the  special  verdict,  is  invalid. 

The  judgments  are  therefore  reversed  and  the  cases  remanded  to 

the  Supreme   Court  of  PennsT/lvania  for  further  proceedings 

not  inconsistent  with  this  opinion.^ 

'  Mr.  Justice  Gray  delivered  a  dissenting  opinion,  in  which  Mr.  Jcstice  Har- 
lan concurred. 

In  Collins  v.  New  Hampshire,  171  U.  S.  30  (1898),  which  was  argued  with  the 
case  above,  the  question  was  whether  a  State  statute  requiring  all  oleomargarine  sold 
in  the  State  to  be  colored  pink  was  valid  as  to  sales  in  original  packages.  The  court 
said  (through  the  same  justice  who  delivered  the  prevailing  opinion  in  the  case  above, 
and  with  the  same  dissent) :  — 

"  We  think  tliis  case  comes  within  the  principle  of  the  cases  just  decided  regarding 
the  statute  of  the  Commonwealth  of  Pennsylvania  prohibiting  the  introduction  of 
oleomargarine  into  that  Commonwealth.  This  statute  is  in  its  practical  effect  prohib- 
itory. It  is  clear  that  it  is  not  an  inspection  law  in  any  sense.  It  provides  for  no 
inspection,  and  it  is  apparent  that  none  was  intended.  The  act  is  a  mere  evasion  of 
the  direct  prohibition  contained  in  the  Pennsylvania  statute,  ard  yet  if  enforced  the 
result,  within  the  State,  would  be  quite  as  positive  in  the  total  suppression  of  the 
article  as  is  the  case  with  the  Pennsylvania  act. 

"  In  a  case  like  this  it  is  entirely  plain  that  if  the  State  has  not  the  power  to  absol- 
utely prohibit  the  sale  of  an  article  of  commerce  like  oleomargarine  in  its  pure  state, 
it  has  no  power  to  provide  that  such  article  shall  be  colored,  or  rather  discolored,  by 

26 


402 


J^HE 


LEGISLATIVE   DEPARTMENT. 


[chap.  IV. 


K 


c.    Federal  Tax  on  Uxports. 


PACE  V.    BURGESS. 
92  United  States,  372.     1875. 


[This  action  was  brought  in  the  United  States  Circuit  Court  for 
Virginia  to  recover  from  defendant  as  United  States  collector  of  inter- 
nal revenue  the  amount  paid  to  him  by  plaintiff  for  stamps  required 
by  statute  of  the  United  States  to  be  athxed,  and  which  were  affixed 
to  packages  of  manufactured  tobacco  intended  for  exportation. 
Judgment  was  for  defendant  and  plain tilf  took  a. writ  of  error.] 

Mr.  Justice  Beadley  delivered  the  opinion  of  the  court. 

The  plaintiff  contends  that  the  charge  for  the  stamps  required  to  be 
placed  on  packages  of  manufactured  tobacco  intended  for  exportation 
was  and  is  a  duty  on  exports,  within  the  meaning  of  that  clause  in 
the  Constitution  of  the  United  States  which  declares  that  "  no  tax 
or  duty  shall  be  laid  on  articles  exported  from  any  State."  But  it  is 
manifest  that  such  was  not  its  character  or  object.  The  stamp  was 
intended  for  no  other  purpose  than  to  separate  and  identify  the 
tobacco  which  the  manufacturer  desired  to  export,  and  thereby,  in- 
stead of  taxing  it,  to  relieve  it  from  the  taxation  to  which  other 
tobacco  was  subjected.  It  was  a  means  devised  to  prevent  fraud, 
and  secure  the  faithful  carrying  out  of  the  declared  intent  with 
regard  to  the  tobacco  so  marked.  The  payment  of  twenty-five  cents 
or  of  ten  cents  for  the  stamp  used  was  no  more  a  tax  on  tlie  export 
than  was  the  fee  for  clearing  the  vessel  in  which  it  was  transported, 
or  for  making  out  and  certifying  the  manifest  of  the  cargo.  It  bore 
no  proportion  whatever  to  the  quantity  or  value  of  the  paclcage  on 
which  it  was  affixed.  These  were  unlimited,  excejTt  by  the  discretion 
of  the  exporter  or  the  convenience  of  handling.     The  large  amount 

addiiii^  a  foreign  substance  to  it,  in  the  manner  described  in  the  statute.  Pink  is  not 
the  color  of  oleomargarine  in  its  natural  state.  The  act  necessitates  and  provides  for 
adulteration.  It  enforces  upon  the  importer  the  necessity  of  adding  a  foreign  sub- 
stance to  his  article,  which  is  thereb}'  rendered  unsalable,  in  order  that  he  may  be 
permitted  lawfully  to  sell  it.  If  enforceil,  the  result  could  be  foretold.  To  colur  the 
substance  as  provided  for  in  the  statute  naturally  excites  a  prejudice  and  strengthens 
a  rejiugnance  up  to  the  point  of  a  positive  and  absolute  refusal  to  purchase  the  article 
at  any  price.  The  direct  and  necessary  result  of  a  statute  nmst  be  taken  into  con- 
sideration when  deciding  as  to  its  validity,  even  if  that  result  is  not  in  so  many  words 
either  enacted  or  distinctly  provided  for.  In  whatever  language  a  statute  may  be 
framed,  its  purpose  must  be  determined  by  its  natural  and  reasonable  effect.  Hender- 
sou  V.  Mayor  of  New  York,  92  U.  S.  259  ;  Morgan's  Steamship  Co.  v.  Louisiana,  113 
U.  S.  455,  at  462.  Although  under  the  wording  of  tliis  statute  the  importer  is  per- 
mitted to  sell  oleomargarine  freely  and  to  any  extent,  provided  he  colors  it  pink,  yet 
the  permission  to  sell,  when  accompanied  by  the  impositiuu  of  a  condition  which,  if 
complied  with,  will  effectually  prevent  any  sale,  amounts  in  law  to  a  prohibition." 


SECT.  II.  C]  PACE   V.    BURGESS. 


403 


paid  for  such  stamps  by  the  plaintiff  only  shows  that  he  was  carrying 
on  an  immense  business. 

The  evidence  given  to  show  that  the  original  cost  of  the  stamps 
was  aeY^r  less  than  the  amount  paid  for  them  by  the  manufacturers 
lis  entitled  to  very  slight  consideration.     The  cost  of  tlie  paper,  ink, 
and  printing,  formed  but  a  small  part  of  the  expense  of  those  ar- 
*^^rangements  which  were  necessary  in  order  to  give  to  tlie  exporter  the 
benefit  of  exemption  from  taxation,  and  at  the  same  time  to  secure 
the  necessary  precautions  against  the  perpetration  of  fraud.      We 
know  how  next  to  impossible  it  is  to  prevent  fraudulent  practices 
wherever  the  internal  revenue  is  concerned  ;  and  the  pretext  of  in- 
tending to  export  such  an  article  as  manufactured  tobacco  would  open 
the  widest  door  to  such  practices,  if  the  greatest  strictness  and  pre- 
caution were  not  observed.     The  proper  fees  accruing  in  the  due"\ 
administration  of  the  laws  and  regulations  necessary  to  be  observed  j 
to  protect  the  government  from   imposition  and  fraud  likely  to  be^ 
committed  under  pretence  of  exportation  are  in  no  sense  a  duty  on// 
exportation.     They  are  simply  the  compensation  given  for  services) 
properly  rendered.     The  rule  by  which  they  are  estimated  may  be  an 
"arbitrary  one ;  but  an  arbitrary  rule  may  be  more  convenient  and  less 
onerous  thaii  any  other  which  can  be  adopted.     The  point  to  guard 
against  is,  the  imposition  of  a  duty  under  the  pretext  of  fixing  a  fee. 
In  the  case  under  consideration,  having  due  regard  to  that  latitude  of 
discretion  which  the  legislature  is  entitled  to  exercise  in  the  selection 
of  the  means  for  attaining  a  constitutional  object,  we  cannot  say  that 
the  charge  imposed  i-s  excessive,  or  that  it  amounts  to  an  infringe- 
ment of  the  constitutional  provision  referred  to.     We  cannot  say\ 
that  it  is  a  tax  or  duty  instead  of  what  it  purports  to  be,  a  fee  or  / 
charge,  for  the  employment  of  that  instrumentality  which  the  cir-' 
cumstaiices  of  the  case   render  necessary  for  the  protection  of  tlie 
government. 

One  cause  of  difficulty  in  the  case  arises  from  the  use  of  stamps  as 
one  of  the  means  of  segregating  and  identifying  the  property  intended 
to  be  exported.  It  is  the  form  in  which  many  taxes  and  duties  are 
imposed  and  liquidated  ;  stamps  being  seldom  used,  except  for  the 
purpose  of  levying  a  duty  or  tax.  But  we  must  regard  things  rather j| 
than  names.  A  stamp  may  be  used,  and,  in  the  case  before  us,  we  ' 
"think  it  is  used,  for  quite  a  different  purpose  from  that  of  imjiosing  a 
tax  or  duty  ;  Jndeed,  it  is  used  for  the  very  contrary  purpose,  —  that 
of  securing  exemption  from  a  tax  or  duty.  The  stamps  required  by 
'receuF  laws  to  be  affixed  to  all  agreements,  documents,  and  papers, 
and  to  different  articles  of  manufacture,  were  really  and  in  truth 
taxes  and  duties,  or  evidences  of  the  payment  of  taxes  and  duties, 
and  were  intended  as  such.  The  stamp  required  to  be  placed  on 
gold-dust  exported  from  California  by  a  law  of  that  State  was  clearly 
an  export  tax,  as  this  court  decided  in  the  case  of  Almy  v.  The  State 
of  California.  24  How.  169.     In  all  such  cases,  no  one  could  entertain 


^^-'^^^''^>-^%l^H^  i 


404  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

a  reasonable  doubt  on  the  subject.  The  present  case  is  different,  ai;d 
must  be  judged  by  its  own  circumstances.  The  sense  and  reason  of 
the  thing  will  generally  determine  the  character  of  every  case  that 
can  arise. 

[The  charge  for  stamps  was  therefore  held  not  a  tax  or  duty  and 
the  judgment  was  affirmed.^] 


1 


,-k 


d.    State  Tax  on  Imports  or  Exports, 

BROWN  V.  MARYLAND. 

12  Wheat.  419  ;  7  Curtis,  262.     1827. 

[See  page  303,  supra.l 


^<^'- 


ALMY  V.  CALIFORNIA. 
24  Howard,  169.     1860. 


Mr.  Chief  Justice  Taxey  delivered  the  opinion  of  the  court. 
The  only  question  in  this  case  is  upon  the  constitutionality  of  a 
law-  of  California,  imposing  a  stamp  tax  upon  bills  of  lading. 

By  an  act  passed  by  the  Legislature  of  that  State  to  provide  a 
revenue  for  the  support  of  the  Government  from  a  stamp  tax  on  cer- 
tain instruments  of  writing,  among  other  instruments  mentioned  in 
/the  law,  a  stamp  tax  was  imposed  on  bills  of  lading  for  the  transpor- 
(  tation  from  any  point  or  place  in  that  State,  to  any  point  or  place 
\  without  the  State,  of  gold  or  silver  coin,  in  whole  or  in  part,  gold- 
Vdust,  or  gold  or  silver  in  bars^oFaEIIerform  ;  and  the  law  requires 
I  that  there  shall  be  attached  to  the  bill  of  lading,  or  stamped  thereon, 
'  a  stamp  or  stamps,  expressing  in  value  the  amount  of  such  tax  or 

duty.  '•  . 

By  a  previous  law  upon  the  same  subject  it  was  made  a  misde- 
meanor, punishable  by  fine,  to  use  any  paper  without  a  stamp,  where 
the  law  required  stamped  paper  to  be  used. 

After  the  passage  of  these  acts,  Almy,  the  plaintiff  in  error,  being 
.the  master  of  the  ship  "Ratler,"  then  lying  in  the  port  of  San  Fran- 
jcisco,  and  bound  to  New  York,  received  a  quantity  of  gold-dust  for 
Itransportation  to  New  York,  for  which  he  signed  a  biTT'onading 
jupon  unstamped  paper,  and  without  having  any  stamp  attached  to  it. 
For  this  disobedience  to  the  law  of  California  he  was  indicted  in  the 
Court  of  Sessions  for  a  misdemeanor,  and  at  the  trial  the  jury  found 

1  In  the  case  of  Cornell  v.  Coyne,  192  U.  S.  418,  24  Sup.  Ct.  Rep.  383  (1904),  it 
was  held  that  a  Federp.1  statute  imposing  a  stamp  tax  upon  the  manufacture  of  '•  filled 
cheese  "  was  not.  as  applied  to  such  commodity  manufactured  for  export,  a  violation  of 
the  prohibitiou  that  "no  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State." 


SECT.  II.  d.]  ALMY   V.    CALIFORNIA.  405 

a  special  verdict  setting  out  particularly  the  facts,  of  which  the  above 
is  a  brief  summary  ;  and  upon  the  return  of  the  verdict  the  counsel 
for  the  defendant  moved  for  a  judgment  of  acquittal  upon  the  ground 
that  the  law  of  California  was  repugnant  to  the  Constitution  of  the 
United  States.  But  the  Court  decided  that  the  State  law  was  not 
repugnant  to  the  Constitution  of  the  United  States,  and  adjudged  that 
Almy  should  pay  a  fine  of  {$100  for  tl)is  offence.  And  the  Court  of 
Sessions  being  the  highest  court  of  the  State  which  had  jurisdiction 
of  the  matter  in  controversy,  this  writ  of  error  is  brought  to  revise 
that  judgment. 

[The  Court  states  the  case  of  Brown  v.  Maryland.] 

So  in  the  case  before  us.  If  the  tax  was  laid  on  the  gold  or  silver 
exported,  every  one  would  see  that  it  was  repugnant  to  the  Constitu- 
tion of  the  United  States,  which  in  express  terms  declares  that  "  no 
State  shall,  without  the  consent  of  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws." 

But  a  tax  or  duty  on  a  bill  of  lading,  although  differing  in  form  ii 
from  a  duty  on  the  article  shipped,  is  in  substance  the  same  thing  ;l| 
for  a  bill  of  lading,  or  some  written  instrument  of  the  same  import, 
is  necessarily  always  associated  with  every  shipment  of  articles; 
of  commerce  from  the  ports  of  one  country  to  those  of  anothery 
The  necessities  of  commerce  require  it.  And  it  is  hardly  less  neces- 
sary to  the  existence  of  such  commerce  than  casks  to  cover  tobacco, 
or  bagging  to  cover  cotton,  when  such  articles  are  exported  to  a  for- 
eign country  ;  for  no  one  would  put  his  property  in  the  hands  of  a'^ 
ship-master  without  taking  written  evidence  of  its  receipt  on  board 
the  vessel,  and  the  purposes  for  which  it  was  placed  in  his  hands. 
The  merchant  could  not  send  an  agent  with  every  vessel,  to  inform, 
the  consignee  of  the  cargo  what  articles  he  had  shipped,  and  prove 
the  contract  of  the  master  if  he  failed  to  deliver  them  in  safety.  A 
bill  of  lading,  thei-efore,  or  some  equivalent  instrument  of  writing,  is 
invariably  associated  with  every  cargo  of  merchandise  exported  to  a 
foreign  country,  and  consequently  a  duty  upon  that  is,  in  substance 
and  effect,  a  duty  on  the  article  exported.  And  if  the  law  of  Califor- 
nia is  constitutional,  then  every  cargo  of  every  description  exported 
from  the  United  States  may  be  made  to  pay  an  export  duty  to  the 
State,  provided  the  tax  is  imposed  in  the  form  of  a  tax  on  the  bill  of 
lading,  and  this  in  direct  opposition  to  the  plain  and  express  pro- 
hibition in  the  Constitution  of  the  United  States. 

In  the  case  now  before  the  Court,  the  intention  to  tax  the  export 
of  gold  and  silver,  in  the  form  of  a  tax  on  the  bill  of  lading,  is  too 
plain  to  be  mistaken.     The  duty  is  imposed  only  upon  bills  of  lading  \ 
of  gold  and  silver,  and  not  upon  articles  of  any  other  description.  | 
And  we  think  it  is  impossible  to  assign  a  reason  for  imposing  the 
duty  upon  the  one  and  not  upon  the  other,  unless  it  was  intended  to  , 
lay  a  tax  on  the  gold  and  silver  exported,  while  all  other  articles  were  / 


406  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

exempted  from  the  charge.  If  it  was  intended  merely  as  a  stamp 
duty  on  a  particular  description  of  paper,  the  bill  of  lading  of  any 
other  cargo  is  in  the  same  form,  and  executed  in  the  same  manner 
and  for  the  same  purposes,  as  one  for  gold  and  silver,  and  so  far  as 
the  instrument  of  writing  was  concerned,  there  could  hardly  be  a 
reason  for  taxing  one  and  not  the  other. 

In  the  judgment  of  this  Court  the  State  tax  in  question  is  a  duty 
upon  the  export  of  gold  and  silver,  and  consequently  repugnant  to 
the  clause  in  the  Constitution  hereinbefore  referred  to ;  and  the 
judgment  of  the  Court  of  Sessions  must  therefore  be  reversed. 


,    p  TUENER  V.  MARYLAND. 

107  Uuited  States,  38.     1882. 

Mr.  Justice  Blatchford  delivered  the  opinion  of  the  court. 
[The  case  as  set  out  in  the  opinion  may  be  thus  briefly  stated : 

(Turner  was  indicted  in  the  State  court  for  violating  a  State _statute 
relating  to^inspection  of  tobacco  ejcported  out  of  the  State.  Having 
been  convicted,  and  the  conviction  having  been  alfirihe^ln  the  State 
Court  of  Appeals,  he  prosecuted  a  writ  of  error  to  this  court.] 

The  Legislature  of  the  State  of  Maryland,  from  the  earliest  his- 
tory of  the  colony  and  since  the  formation  of  the  State  government, 
has  made  the  inspection  of  tobacco  raised  in  that  State  compulsory. 
iThat  inspection  has  included  many  features,  and  has  extended  to  the 
iform,  size,  and  weight  of  the  packages  containing  the  tobacco,  as  well  as 
to  the  quality  of  the  article.    Fixing  the  identity  and  weight  of  tobacco 
(Alleged  to  have  been  grown  in  the  State,  and  thus  preserving  the  repu- 
tation of  the  article  in  markets  outside  of  the  State,  is  a  legitimate 
1  part  of  inspection  laws,  and  the  means  prescribed  therefor  in  the  stat- 
ic utes  in  question  naturally  conduce  to  that  end.     Such  provisions,  as 
parts  of  inspection  laws,  are  as  proper  as  provisions  for  inspecting 
quality ;  and  it  cannot  be  said  that  the  absence  of  the  latter  provisions, 
in  respect  to  any  particular  class  of  tobacco,  necessarily  causes  the 
laws  containing  the  former  provisions  to  cease  to  be  inspection  laws. 
It  is  easy  to  see  that  the  use  of  the  precaution  of  weighing  and  marking 
the  weight  on  the  hogshead  and  recording  it  in  a  book  is  to  enable  it 
to  be   determined  at  any  time  whether  the  contents  have  been  di- 
minished subsequently  to  the  original  packing,  by  comparing  a  new 
weight  with  the  original  marked  weight,  or,  if  the  marked  weight  be 
altered,  with  the  weight  entered  in  the  warehouse  book.    The  things  re- 
quired to  be  done  in  respect  to  the  hogshead  of  tobacco  in  the  present 
case,  aside  from  any  inspection  of  quality,  are  to  be  done  to  prepare 
and  fit  the  hogshead,  as  a  unit,  containing  the  tobacco,  for  exportation, 
and  for  becoming  an  article  of  foreign  commerce  or  commerce  among 


SECT.  II.  d.]  TCRNER  V.   MARYLAND.  407 

the  States,  and  are  to  be  done  before  it  becomes  such  an  article. 
They  are  properly  parts  of  inspection  laws,  within  the  definition 
given  by  this  court  in  Gibbons  v.  Ogden,  9  Wheat.  1.  In  a  note  to 
the  argument  of  Mr.  Emmet  in  that  case,  at  page  119,  are  collected 
references  to  many  statutes  of  the  States,  in  the  form  of  inspection 
laws,  showing  what  features  have  been  generally  recognized  as  falling 
within  the  domain  of  those  laws,  —  such  as  the  size  of  barrels 
or  casks,  and  the  number  of  hoops  on  them ;  what  pieces  of  beef  or 
pork,  and  what  quantity  and  size  of  nails,  should  be  in  one  cask  ;  the 
length,  breadth,  and  thickness  of  staves  and  heading,  lumber,  boards, 
shingles,  etc. ;  and  the  branding  of  pot  and  pearl  ashes,  flour,  fish, 
and  lumber,  and  the  forfeiture  of  them,  if  unbranded.  These  were' 
cited  as  instances  of  the  exercise  by  States  of  the  power  to  act  upon 
an  article  grown  or  produced  in  a  State,  before  it  became  an  article 
of  foreign  or  domestic  commerce,  or  of  commerce  among  the  States, 
to  prepare  it  for  such  purpose.  It  was  in  reference  to  laws  of  this 
character  that  it  was  said,  in  argument,  in  Gibbons  v.  Ogden,  that  the 
enactments  seemed  arbitrary,  and  were  not  founded  on  the  idea  that 
the  things  the  exportation  of  which  was  thus  prohibited  or  restrained 
were  dangerous  or  noxious,  but  had  for  their  object  to  improve  foreign 
traae  and  raise  the  character  and  reputation  of  the  articles  in  a  for- 
eign market.  It  was  in  reference  to  such  laws,  among  other  inspec- 
tion laws,  that  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,  p.  203, 
after  remarking  that  a  power  to  regulate  commorce  was  not  the  source 
from  which  a  right  to  pass  inspection  laws  was  derived,  said:  "  The 
object  of  inspection  laws  is  to  improve  the  quality  of  articles  pro- 
duced by  the  labor  of  a  country  ;  to  fit  them  for  exportation ;  or,  it 
may  be,  for  domestic  use,  they  act  upon  the  subject  before  it  becomes 
an  article  of  foreign  commerce,  or  of  commerce  among  the  States,  and 
prepare  it  for  that  purpose.  They  form  a  portion  of  that  immense  i 
mass  of  legislation  which  embraces  everything  within  the  territory  | 
of  a  State,  not  surrendered  to  the  General  Government :  all  which  can  / 
be  most  advantageously  exercised  by  the  States  themselves."  It  was 
not  suggested  by  the  Court  that  those  particular  laws  were  not  valid 
exercises  of  the  power  of  the  State  to  fit  the  articles  for  exportation, 
or  that  in  addition  to,  or  even  aside  from,  ascertaining  tlie  quality  of 
the  article  produced  in  a  State,  the  State  could  not  define  the  form  of 
the  lawful  package  or  its  weight,  and  subject  form  and  weight,  with 
or  without  quality,  to  the  su])ervision  of  an  inspector,  to  ascertain 
that  the  requirpd  conditions  in  respect  to  the  article  were  observed. 

In  addition  to  the  instances  cited  in  Gibbons  v.  Ogden,  tlie  diligence 
of  the  attornej'-general  of  the  State  of  Maryland  has  collected  and 
presented  to  us,  in  argument  numerous  instances,  showing,  by  the 
text  of  the  inspection  laws  of  the  thirteen  American  colonies  and 
States,  in  force  in  1787,  when  the  Constitution  of  the  United  States 
was  adopted,  that  tlie  fQtm,  capacity,  dimensions,  and  wei^^it  of  pack-i 
ages  were  pbjects  of  inspection  irrespectlve^DfHihe  quality  of  the  con- 


408  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

tents  of  the  packages.  The  instances  embrace,  among  others,  the 
dimensions  of  shingles,  staves,  and  hoops ;  tlie  size  of  casks  and 
barrels  for  fish,  pork,  beef,  pitch,  tar,  and  turpentine  ;  and  the  size 
of  hogsheads  of  tobacco.  In  Maryland,  the  dimensions  of  tobacco 
hogsheads  were  fixed  by  various  statutes  passed  from  the  year  1658 
to  the  year  1763.  By  the  act  of  1763,  c.  18,  sect.  18,  it  was  enacted 
that  all  tobacco  packed  in  hogsheads  exceeding  forty-eight  inches  in 
the  length  of  the  stave,  and  seventy  inches  in  the  whole  diameters 
within  the  staves,  at  the  croze  and  bulge,  should  be  accounted  unlaw- 
ful tobacco  and  should  not  be  passed  or  received.  Like  provisions 
fixing  the  dimensions  of  hogsheads  of  tobacco  have  been  in  force  in 
Maryland  from  1789  till  now.  In  view  of  such  legislation  existing 
at  the  time  the  Constitution  of  the  United  States  was  adopted  and 
ratified  by  the  original  States,  known  to  the  fraraers  of  the  Constitu- 
tion who  came  from  the  various  States,  and  called  "  inspection  laws  " 
in  those  States,  it  follows  that  the  Constitution  in  speaking  of  "  in- 
spection laws,'"'  included  such  laws,  and  intended  to  reserve  to  the 
States  the  power  of  continuing  to  pass  such  laws,  even  though  to 
carry  them  out,  and  make  them  effective,  in  preventing  the  exporta- 
tion from  the  State  of  the  various  commodities,  unless  the  provisions 
!  of  the  laws  were  observed,  it  became  necessary  to  impose  charges 
I  which  amounted  to  duties  or  imposts  on  exports  to  an  extent  abso- 
lutely necessary  to  execute  such  laws.  The  general  sense  in  which 
the  power  of  the  States  in  this  respect  has  been  understood  since  the 
adoption  of  the  Constitution  is  shown  by  the  legislation  of  the  States 
since  that  time,  as  collected  in  like  manner  by  the  attorney-general  of 
Maryland,  covering  the  form,  capacity,  dimensions,  and  weight  of 
packages  containing  articles  grown  or  produced  in  a  State,  and  in- 
tended for  exportation.  These  laws  are  none  the  less  inspection  laws 
/  because,  as  was  said  by  this  court  in  Gibbons  v.  Ogden,  they  *'  may 
I  have  a  remote  and  considerable  influence  on  commerce."  It  is  a  cir- 
cumstance of  weight  that  the  laws  referred  to  in  the  Constitution  are 
by  it  made  "  subject  to  the  revision  and  control  of  the  Congress." 
Congress  may,  therefore,  interpose,  if  at  any  time  any  statute,  under 
the  guise  of  an  inspection  law,  goes  beyond  the  limit  prescribed  by 
the  Constitution,  in  imposing  duties  or  imposts  on  imports  or  ex- 
-  ports.  These  and  kindred  laws  of  Maryland  have  been  in  force  for 
a  long  term  of  years,  and  there  has  been  no  such  interposition. 

[Other  objections  to  the  statute  are  considered  and  found  not  to  be 
well  taken  and  the  judgment  is  affirmed.] 


^ 


SECT.  II.  e.]  INMAN   STEAMSHIP   CO.   V.   TINKER.  409 

e.  State  Tax  on  Tonnage.^ 

INMAN   STEAMSHIP   COMPANY  v.   TINKER. 
94  United  States,  238.     1876. 

Mr.  Justice  Swayxe  delivered  the  opinion  of  the  court. 

[The  case,  as  stated  in  the  opinion,  is  briefly  this  :  The  complainant, 
a  foreign  corporation,  souglit  in  the  United  States  Circuit  Court  for 
the  Southern  District  of  New  York,  to  have  defendant,  as  captain  of 
the  port  of  New  York,  restrained  from  collecting  certain  port  feesX 
provided  for  by  State  statute,  to  be-  computed  on  the  tonnage  of  ves-y 
sels  entering  such  port.  Complainant's  objection  to  the  statute  was 
that  it  violated  clause  2  of  Art.  I.,  sec.  10,  of  the  Constitution  of  the 
United  States.     The  bill  was  dismissed,  and  plaintiif  appealed.] 

The  classification  of  the  powers  of  the  national  government,  the 
several  categories  into  which  they  may  be  resolved,  and  the  rights 
and  powers  of  the  States  in  our  complex  system  of  polity,  have  been 
so  often  considered  by  this  court,  that  it  is  unnecessary  upon  this 
occasion  to  re-examine  the  subject.  Oilman  v.  Philadelphia,  3  Wall. 
713 ;  Ex  parte  McNiel,  13  id.  236,  240. 

Tonnage,  in  our  law,-is  a  vessel's  "  internal  cubical  capacity  in  tons 
of  one  hundred  cubic  feet  each,  to  be  ascertained "  in  the  manner 
prescribed  by  Congress.     Act  of  May  6,  1864,   13  Stat.   pp.  70,  72 ; 
Eev.  Stat.  U.  S.  804,  §  4153.     "  Tonnage  duties  are  duties  upon  ves-  1 
sels  in  proportion  to  their  capacity."     Bouv.  Law  Diet.,  "Tonnage." 

The  term  was  formerly  applied  to  merchandise.  Cowel,  in  his 
Law  Dictionary,  published  in  1708,  thus  defines  it :  "  Tonnage  {ton- 
nafjium)  is  a  custom  or  impost  paid  to  the  king  for  merchandise 
carried  out  or  brought  in  ships,  or  such  like  vessels,  according  to  a 
certain  rate  upon  every  ton,  and  of  this  you  may  read  in  the  statutes 
of  12  Edw.  IV.  c.  3 ;  6  Hen.  VIII.  c.  14,"  etc.  The  vital  principle  of  , 
such  a  tax  or  duty  is  that  it  is  imposed,  whatever  the  subject,  solely 
according  to  the  rule  of  weight,  either  as  to  the  capacity  to  carry,  or  I 
the  actual  weight  of  the  thing  itself. 

In  this  law  of  the  State  there  are  several  important  points  that 
must  not  be  overlooked.     The  charge  is  not  exacted  for  any  services  \  z"^' 
rendered  or  offered  to  be  rendered.     If  the  vessel  enter  the  port  and  1      C^ 
immediately  take  her  departure,  or  load  or  unload,  or  make  fast  to!  ■ 

any  wharf,  either  of  these  things  disjunctively  brings  her  within  the 
act,  and  makes  her  liable  to  the  burden  prescribed. 

The   charge   is    applied   wholly   irrespective   of  the    ad    valorem!  ^ 
principle.  »  --^^^ 


X- 


If  either  of  the  three  vessels  of  the  appellant  was  new  and  making      xV^ 


her  first  voyage,  and  another  of  the  same  tonnage  was  making  her 


x? 


S- 
^ 


410  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  17. 

last  trip  before  being  broken  up,  and  the  former  were  of  many  times 
the  value  of  the  latter,  the  act  would  apply  the  same  procrustean  rule 
to  both.  The  rate  of  payment,  and  the  amount  to  be  paid,  Avould,  in 
both  cases,  be  the  same. 

The  act  makes  a  discrimination.     To  one  class  of  vessels  it  applies 
\the  rate  here  in  question,  to  another  class  double  that  rate,  and  to 
jyet  another  class  none  at  all.     Those  belonging  to  the  latter  are 
wholly  exempted. 

,.  We  think  a  clearer  case  of  the  imposition  of  a  tonnage  duty  than 
(is  presented  in  the  record  before  us  can  hardly  be  imagined.  If  the 
law  had  been  passed  by  Congress  instead  of  the  State,  and  the  charge 
imposed  had  been  expressly  designated  a  tonnage  duty,  its  character 
as  such  could  not  appear  in  a  stronger  light.  But  the  name  is  imma- 
terial :  it  is  the  substance  we  are  to  consider. 

It  does  not  advance  the  argument  in  behalf  of  the  appellee  to 
maintain  that  the  regulations  prescribed  by  the  act  are  necessary  and 
proper  in  the  port  for  which  they  are  provided.  It  is  not  our  pur- 
pose to  examine  them,  except  as  to  the  proposition  in  hand.  It  may 
be  that,  aside  from  the  imposition  of  this  tax,  they  contain  nothing 
exceptionable,  and  that  in  all  other  respects  they  are  wise  and  well 
considered.  Similar  provisions,  varying  according  to  local  circum- 
stances, exist  at  all  important  points  throughout  the  woidd  whither 
marine  commerce  finds  its  way.  They  are  indispensable  to  those 
engaged  in  that  business.  They  fence  out  many  evils,  and  promote 
largely  the  convenience  and  the  welfare  of  those  engaged  in  this  field 
of  enterprise.  Perhaps  it  is  hardly  too  strong  language  to  say  they 
are  well-nigh  vital  to  commerce  itself.     It  may  be  conceded,  also,  that 

(foreign  steamships  and  other  vessels  visiting  the  ports  of  a  State  for 
business  purposes  may  be  made  liable  by  the  laws  of  such  State  for 
all  reasonable  and  proper  port  charges.  This  is  but  a  fair  return 
for  the  benefits  received.  But  such  charges  must  not  be  repugnant 
to  the  Constitution  of  the  United  States.  Any  conflict  is  fatal  to 
them.  The  warrant  for  such  competent  legislation  may  be  found  in 
that  immense  mass  of  police  and  other  powers  which  the  States  origi- 
nally possessed,  which  they  have  not  parted  with,  and  which  still 
belongs  to  them ;  or  it  may  in  some  cases  be  found  among  those 
which  the  States  may  exercise,  but  only  until  Congress  shall  see  fit 
to  act  upon  the  subject.  The  authority  of  the  State  then  retires,  and 
lies  in  abeyance  until  the  occasion  for  its  exercise  shall  recur.  Ex 
parte  McNeil,  13  Wall.  236. 

"Powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people."     Const.  Amend.  10. 

.  The  State,  in  passing  this  law  imposing  a  tonnage  duty,  has  exer- 

/cised  a  power  expressly  prohibited  to  it  by  the  Constitution.,    Iii_ 

\  that  particular  the  law  is,  therefore,  void.     This  view  is  sustained  by 

the  rulings  of  this  court  in  the  State  Tonnage  Tax  Cases,  12  Wall. 


j5> 


SECT.  II.  C.j  PACKET    COMPANY    V.    KEOKUK.  411 

204,  and  Cannon  v.  New  Orleans,  20  id.  577.     See  also  Steamship 
Company  v.  -Port  Wardens,  G  id.  31,  and  Peete  v.  Morgan,  19  id.  581. 

The  tax  imposed  is  not  merely  a  mode  of  measuring  the  compensa-j 
tion  to  be  paid.     The  answer  to  this  suggestion  is,  that  it  is  exacted\ 
where  there  is  nothing  to  be  paid  for,  and  has  no  reference  to  any 
circunistance  in  this  connection  but  the  tonnage  of  the  vessel  and  the 
class  to  which  it  belongs. 

The  commerce  clauses  of  the  Constitution  had  their  origin  in  a 
wise  and  salutary  policy.  They  give  to  Congress  the  entire  control 
of  the  foreign  and  interstate  commerce  of  the  country.  They  were 
intended  to  secure  harmony  and  uniformity  in  the  regulations  by 
Avhich  they  should  be  governed.  Wherever  such  commerce  goes,  the 
power  of  the  nation  accompanies  it,  ready  and  competent,  as  far  as 
possible,  to  promote  its  prosperity  and  redress  the  wrongs  and  evils 
to  which  it  may  be  subjected.  It  was  deemed  especially  important 
that  the  States  should  not  impose  tonnage  taxes.  Hence  the  prohi- 
bition in  the  Constitution,  without  the  assent  of  Congress  previously 
given.  The  confusions  and  mischiefs  that  would  ensue  if  this  restric- 
tion were  removed  are  too  obvious  to  require  comment.  The  lesson 
upon  the  subject  taught  by  the  law  before  us  is  an  impressive  one. 

How  the  charges,  which  it  is  conceded  the  State  may  impose,  must 
be  shaped  in  order  to  be  valid,  is  a  subject  which  it  is  not  within 
our  province  to  consiller,  and  in  regard  to  which  it  would  not  be 
proper  for  us  to  express  any  opinion.  We  decide  only  the  point 
before  us. 

Decree  reversed,  and  cause  remanded  with  directions  to  proceed  in 
conformity  to  this  opinion. 


^/ 


PACKET  COMPANY  v.   KEOKUK. 

95  United  States,  80.     1877. 


Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  principal  question  presented  by  the  record  of  this  case  is, 
whether  a  municipal  corporation  of  a  State,  having  by  the  law  of  its 
organization  an  exclusive  right  to  make  wharves,  collect  wliarfage, 
and  regulate  wharfage  rates,  can,  consistently  with  the  Constitution  ^ 
of  the  United  States,  charge  and  collect  wharfage  proportioned  to  the  , 
tonnage  of  the  vessels  from  the  owners  of  enrolled  and  licensed 
steamboats  mooring  and  landing  at  the  wharves  constructed  on  the 
banks  of  a  navigable  river. 

The  city  of  Keokuk  is  such  a  corporation,  existing  by  virtue  of  a 
special  charter  granted  by  the  legislature  of  Iowa.  To  determine 
whether  the  charge  prescribed  by  the  ordinance  in  question  is  a  duty 


'"-^ 


412  THE    LEGISLATIVE    DEPARTMENT.  [C«AP.  IV. 

of  tonnage,  Avithin  the  meaning  of  the  Constitution,  it  is  necessary 
to  observe  carefully  its  object  and  essence.  If  the  charge  is  clearly 
a  duty  a  tax,  or  burden,  which  in  its  essence  is  a  contribution  claimed 
for  the  privilege  of  entering  the  port  of  Keokuk,  or  remaining  in  it, 
or  departing  from  it,  imposed,  as  it  is,  by  authority  of  the  State,  and 
measured  by  the  capacity  of  the  vessel,  it  is  doubtless  embraced  by 
the  constitutional  prohibition  of  such  a  duty.     But  a  charge  for  ser- 

( vices  rendered  or  for  conveniences  provided  is  in  no  sense  a  tax  or  a 
duty.     It  is  not  a  hindrance  or  impediment  to  free  navigation.     The 
'  prohibition  to  the  State  against  the  imposition  of  a  duty  of  tonnage 
;  was  designed  to  guard  against  local  hindrances  to  trade  and  carriage 
I  by  vessels,  not  to  relieve  thera  from  liability  to  claims  for  assistance 
Xrendered  and  facilities   furnished  for  trade  and  commerce.     It  is  a 
tax  or  a  duty  that  is  prohibited:  something  imposed  by  virtue  of  sove- 
reignty, not  claimed  in  right  of  proprietorship.     Wharfage  is  of  the 
latter  character.     Providing  a  wharf  to  which  vessels  may  make  fast, 
/or  at  which  they  may  conveniently  load  or  unload,  is  rendering  them 
I  a  service.     The  character  of  the   service  is  the  same  whether  the 
wharf  is  built  and  offered  for  use  by  a  State,  a  municipal  corporation, 
or  a  private  individual;  and,  when  compensation  is  denianded  for  the 
^use  of  the  wharf,  the  demand  is  an  assertion,  not  of  sovereignty,  buV 
lof  a  right  of  property.     A  passing  vessel  may  use  the  wharf  or  not, 
at  its  election,  and  thus  may  incur  liability  for  wharfage  or  not,  at  the 
I  choice  of  the  master  or  owner.     No  one  would  claim  that  a  demand  of 
compensation  for  the  use  of  a  dry-dock  for  repairing  a  vessel,  or  a 
demand  for  towage  in  a  harbor,  would  be  a  demand  of  a  tonnage  tax, 
no  matter  whether  the  dock  was  the  property  of  a  private  individual 
or  of  a  State,  and  no  matter  whether  proportioned  or  not  to  the  size 
'  or  tonnage  of  the  vessel.     There  is  no  essential  difference  between 
■■'  such  a  demand  and  one  for  the  use  of  a  wharf.     It  has  always  been 
held  that  wharfage  dues  may  be  exacted  ;  and  it  is  believed  that  they 
have  been  collected  in  ports  where  the  wharves  have  belonged  to  the 
State  or  a  municipal  corporation  ever  since  the  adoption  of  the  Con- 
stitution.    In  Cannon  v.  New  Orleans,  20  Wall.  577,  this  court,  while 
holding  an  ordinance  void  that  fixed  dues  upon  steamboats  which 
should  moor  or  land  in  any  part  of  the  port  of  New  Orleans,  measured 
by  the  number  of  tons  of  the  boats,  because  substantially  a  tax  for 
the  privilege  of  stopping  in  the  port,  and,  therefore,  a  duty  or  ton- 
nage, carefully  guarded  the  right  to  exact  wharfage.     The  language 
of  the  court  was  :  "  In  saying  this  (namely,  denying  the  validity  of 
the  ordinance  then  before  it),  we  do  not  understand  that  this  princi- 
ple interposes  any  hindrance  to  the  recovery  from  any  vessel  landing 
at  a  wharf  or  pier  owned  by  an  individual,  or  by  a  municipal  or  other 
corporation,  a  just  compensation  for  the  use  of  such  property.     It  is 
a  doctrine  too  well  settled,  and  a  practice  too  common  and  too  essen- 
tial to  the  interests  of  commerce  and  navigation,  to  admit  of  a  doubt, 
that  for  the  use  of  such  structures,  erected  by  individual  enterprise 


SECT.  II.  e.]  PACKET   COMPANY   V.    KEOKUK.  413 

and  recognized  everywhere  as  private  property,  a  reasonable  corapen- 
sation  can  be  exacted.  And  it  may  be  safely  admitted,  also,  that  it 
is  within  the  power  of  the  State  to  regulate  this  compensation,  so  as 
to  prevent  extortion,  a  power  which  is  often  very  properly  delegated 
to  the  local  municipal  authority.  Nor  do  we  see  any  reason  why, 
when  a  city  or  other  municipality  is  the  owner  of  such  structures, 
built  by  its  own  money,  to  assist  vessels  landing  within  its  limits  in 
the  pursuit  of  their  business,  the  city  should  not  be  allowed  to  exact 
and  receive  this  reasonable  compensation  as  well  as  individuals." 

No  doubt,  neither  a  State  nor  a  municipal  corporation  can  be  per- 
mitted to  impose  a  tax  upon  tonnage  under  cover  of  laws  or  ordin- 
ances ostensibly  passed  to  collect  wharfage.     This   has  sometimes 
been  attempted,  but  the  ordinances  will  always  be  carefully  scrutin- 
ized.    In  Cannon  y.  New  Orleans,  the  ordinance  was  held  invalid,  not 
because  the  charge  was  for  wharfage,  nor  even  because  it  was  propor- 
"tioned  to  the  tonnage  of  the  vessels,  but  because  the  charge  was  not 
for  wharfage  or  any  service  rendered.     It  was  for  stopping  in  thej 
harbor,  though  no  wharf  was  used.     Such,  also,  was  Northwestern 
Packet  Co.  v.  St.  Paul,  3  Dill.  454.     So,  in  Steamship  Co.  v.  Port 
Wardens,  6  Wall.  31,  the  statute  held  void  imposed  a  tax  upon  every  ; 
ship  entering  the   port.     This  was  held  to  be  alike  a  regulation  of  ^ 
commerce  and  a  duty  of  tonnage.     It  was  a  sovereign  exaction,  not  a 
charge  for  compensation.     Of  the  same  character  was  the  tax  held 
prohibited  in  Peete  v.  Morgan,  19  id.  581. 

It  is  insisted,  however,  on  behalf  of  the  plaintiffs  in  error,  that  the 
charge  prescribed  by  the  ordinance  must  be  considered  as  an  imposi-  R) 
tion  of  a  duty  of  tonnage,  because  it  is  regulated  by  and  proportioned 
'to  the  number  of  tons  of  the  vessels  using  the  wharf;  and  the  argu- 
ment is  attempted  to  be  supported  by  the  ruling  of  this  court  in  State 
Tonnage  Tax  Cases,  12  Wall.  204.  But  this  is  a  misconception  of 
those  cases.  The  statute  of  Alabama  declared  invalid  was  not  a  pro- 
vision to  secure  or  regulate  compensation  for  wharfage,  or  for  any 
services  rendered  to  the  vessels  taxed.  It  imposed  a  tax  "  upon  all 
steamboats,  vessels,  and  other  water-crafts  plying  in  the  navigable 
waters  of  the  State,"  to  be  levied  ''at  the  rate  of  one  dollar  per  ton 
of  the  registered  tonnage  thereof."  It  did  not  tax  the  boats  as  prop- 
erty in  proportion  to  their  value,  but  according  to  their  capacity,  or, 
as  was  said,  "  solely  and  exclusively  on  the  basis  of  their  cubical 
contents,  as  ascertained  by  the  rules  of  admeasurement  and  computa- 
tion prescribed  by  Congress."  It  was  the  nature  of  the  tax  or  duty, 
coupled  with  the  mode  of  assessing  it,  which  made  the  law  a  viola- 
tion of  the  Constitution.  As  stated,  the  vessels  taxed  were  such  as 
were  plying  in  the  navigable  waters  of  the  State.  If  not  plying  in 
tliose  waters,  they  were  not  taxed.  The  tax  was,  therefore,  an  im- 
pediment to  navigation  in  tliose  waters,  which  led  the  court  to  say 
that  it  was  as  instruments  of  commerce  and  not  as  property  the  ves- 
Bels  were  required  to  contribute  to  the  revenues  of  the  State.     The 


414  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

fact  that  the  tax   was  proportioned  to  the  tonnage  of  the  vessels 
taxed* was  relied  upon  only  as  supporting  the  condusion  that  tliey 
were  not  taxed  as  property,  but  as  instruments  of  commerce  ;  and  the 
court,  in   view  of  all  these   considerations,   remarked,  "  Beyond  all 
.    question,  the  act  is  an  act  to  raise  revenue  without  any  corresponding 
\  or  equivalent  benefit  or  advantage  to  the  vessels  taxed  or  to  the  ship- 
1  owners,  and  consequently  it  is  not  to  be  upheld  by  virtue  of  the  rules 
J  applied  in  the  construction  of  laws  regulating  pilot  dues  and  port 
A  charges."     Nothing  in  these  cases  justifies  the  assertion  that  either 
\\  wharfage  or  port  charges  are  duties  of  tonnage,  merely  because  they 
xjare  proportioned  to  the  actual  tonnage  or  cubical  capacity  of  vessels. 
It  would  be  a  strange  misconception  of  the  purpose  of  the  framers  of 
the   Constitution   were   its  provisions  thus  understood.     What  was 
intended  by  the  provisions  of  the  second  clause  of  the  tenth  section 
of  the  first  article  was  to  protect  the  freedom  of  commerce,  and  noth- 
ing more.     The  prohibition  of  a  duty  of  tonnage  should,  therefore,  be 
p  construed  so  as  to  carry  out  that  intent.     A  mere  adherence  to  the 
letter,  without  reference  to  the  spirit  and  purpose,  may  in  this  case 
mislead,  as  it   has  misled  in  other  cases.     It  cannot  be  thought  the 
/framers  of  the  Constitution,  when  they  drafted  the  prohibition,  had 
I  in  mind  charges  for  services  rendered  or  for  conveniences  furnished 
;  to  vessels  in  port,  which  are  facilities  to  commerce  rather  than  hin- 
drances to  its  freedom ;  and,  if  such  charges  were  not  in  mind,  the 
)  mode  of  ascertaining  their  reasonable  amount  could  not  have  been. 
In  Cooley  v.  The  Board  of  Port  Wardens,  12  How.  299,  this  court 
recognized  a  clear  distinction  between  wharfage  and  duties  on  im- 
ports  or   exports,  or  duties  on  tonnage.     Referring  to  the  second 
paragraph  of  sect.  10,  art.  1,  of  the  Constitution,  Curtis,  J.,  speaking 
for  the  court,  said :  "  This  provision  of  the  Constitution  was  intended 
to  operate  upon  subjects  actually  existing  and  well  understood  when 
the  Constitution  was  formed.     Imposts,  and  duties  on  imports,  ex- 
ports, and  tonnage,  were  tlien  known  to  the  commerce  of  the  civilized 
world  to  be  as  distinct  from  fees  and  charges  for  pilotage,  and  from 
the  penalties  by  which  commercial  States  enforced  their  laws,  as 
they  were  from  charges  for  wharfage  or  towage,  or  any  other  local 
port  charges  for  services  rendered  to  vessels  or  cargoes,  and  to  de- 
clare that  such  pilot  fees  or  penalties  are  embraced  within  the  words 
imposts,  or  duties  on  imports,  exports,  or  tonnage,  would  be  to  con- 
found things  essentially  different,  and  which  must  have  been  known 
to  be  actually  different  by  those  who  used  this  language.  ...  It  is 
/the  thing  and  not  the  name  that  it  is  to  be  considered." 

For  these  reasons,  we  hold  that  the  ordinance  cannot  be  considered 
as  imposing  a  duty  of  tonnage,  and  what  we  have  said  is  sufficient  to 
show  that  most  of  the  other  objections  of  the  plaintiffs  in  error  to  its 
validity  have  no  substantial  foundation.  It  is  in  no  sense  a  regula- 
tion of  commerce  between  the  States,  nor  does  it  impose  duties  upon 
vessels  bound  to  or  from  one  State  to  another,  nor  compel  entry  or 


SECT.  ir.  e.J  PACKET   COMPANY   V.   KEOKUK.  415 

clearance  in  the  port  of  Keokuk  ;  nor  is  it  contrary  to  the  compact 
contained  in  the  ordinance  of  1787,  since  it  levies  no  tax  for  the 
navigation  of  the  river ;  nor  is  it  in  conflict  with  the  act  of  Congress 
respecting  the  enrolment  and  license  of  vessels  for  the  coasting  trade. 
All  these  objections  rest  on  the  naistaken  assumption  that  port 
charges,  and  especially  wharfage,  are  taxes,  duties,  and  restraints  of 
commerce. 

In  nothing  that  we  have  said  do  we  mean  to  be  understood  as 
afhrming  that  a  city  can,  by  ordinance  or  otherwise,  charge  or  collect ;'  '^ir 
wharfage  for  merely  entering  its  port,  or  stopping  therein,  or  for  thei[;>^  v!-> 
use  of  that  which  is  not  a  wharf,  but  merely  the  natural  and  unim-i  *■  '<-:. 
proved  shore  of  a  navigable  river.  Such  a  question  does  not  arise  in'  <* 
this  case.  .^  The  record  shows  that  the  wharfage  charged  to  these 
plaintiffs  in  error  was  for  the  use  of  a  wharf,  built,  paved,  and  im- 
j)roved  by  the  city  at  large  expense.  So  far  as  the  ordinance  imposes 
and  regulates  such  a  charge,  it  is  not  obnoxious  to  the  accusation  that 
it  is  in  conflict  with  the  Constitution.  A  different  question  would  be 
presented  had  the  steamboats  landed  at  the  bank  of  the  river  where 
no  wharf  had  been  constructed  or  improvement  made  to  afford  facili- 
ties for  receiving  or  discharging  cargoes.  We  adhere  to  all  that  was 
decided  in  Cannon  v.  New  Orleans.  In  that  case,  the  city  ordinance 
imposed  what  were  called  "levee  dues"  on  all  steamboats  that  should 
moor  or  land  in  any  part  of  the  harbor  of  New  Orleans.  It  was  sub- 
sequently amended  by  the  substitution  of  the  w^ords  "levee  and 
wharfage  dues  "  for  "  levee  dues  ;  "  but,  even  as  amended,  it  did  not 
profess  to  demand  wharfage.  The  plaintiff  filed  a  petition  for  an 
injunction  against  the  collection  of  the  dues  prescribed  by  it,  and  for 
the  recovery  of  those  he  had  been  compelled  to  pay.  It  did  not 
appear  that  he  had  ever  made  use  of'  any  wharf  or  improved  levee; 
and  what  we  decided  was,  that  the  city  could  not  impose  a  charge 
for  merely  stopping  in  the  harbor.  The  case  in  hand  is  different. 
The  ordinance  of  Keokuk  has  imposed  no  charge  upon  these  plaintiffs 
which  it  was  beyond  the  power  of  the  city  to  impose.  To  the  extent 
to  which  they  are  affected  by  it  there  is  no  valid  objection  to  it. 
Statutes  that  are  constitutional  in  part  only  will  be  uphekl  so  far  as\ 
they  are  not  in  conflict  with  the  Constitution,  provided  the  allowed 
and  prohibited  parts  are  severable.  We  think  a  severance  is  possible 
in  this  case.  It  may  be  conceded  the  ordinance  is  too  broad,  and  that 
some  of  its  provisions  are  unwarranted.  When  those  provisions  are 
attempted  to  be  enforced,  a  different  question  may  be  presented. 

Judgment  affirmed. 


416  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

TRANSPORTATION   COMPANY   v.   WHEELING. 

99  United  States,  273.     1878. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 
Power  to  impose  taxes  for  legitimate  purposes  resides  in  the 
States  as  well  as  in  the  United  States;  but  the  States  cannot,  with- 
out the  consent  of  Congress,  lay  any  duty  of  tonnage,  nor  can  they 
levy  any  imposts  or  duties  on  imports  or  exports  except  what  may 
be  absolutely  necessary  for  executing  their  inspection  laws,  as 
without  the  consent  of  Congress  they  are  prohibited  from  exercising 
any  such  power.  Outside  of  those  prohibitions  the  power  of  the 
States  extends  to  all  objects  within  their  sovereign  power,  except 
the  msans  and  instruments  of  the  Federal  government.  State  Ton- 
nage Tax  Cases,  12  Wall.  204,  212. 

Taxes  levied  by  a  State  upon  ships  or  vessels  as  instruments  of 
commerce  and  navigation  are  within  the  clause  of  the  Constitution 
which  prohibits  the  States  from  levying  any  duty  of  tonnage  without 
the  consent  of  Congress;  and  it  makes  no  difference  whether  the 
ships  or  vessels  taxed  belong  to  the  citizens  of  the  State  which 
levies  the  tax  or  to  the  citizens  of  another  State,  as  the  prohibition 
is  general,  withdrawing  altogether  from  the  States  the  power  to  lay 
any  duty  of  tonnage  under  any  circumstances,  without  the  consent 
of  Congress. 

Pending  the  controversy  in  the  subordinate  State  court,  the  par- 
ties by  consent  filed  in  the  case  an  agreed  statement  of  facts,  from 
which  and  the  pleadings  it  appears  that  the  plaintiffs  commenced 
an  action  of  assumpsit  against  the  defendants  to  recover  back  certain 
sums  of  money  which  the  latter  involuntarily  paid  to  the  former  as 
taxes  wrongfully  assessed,  as  they  allege,  upon  four  certain  steam- 
boats which  they  owned,  and  which  for  four  years  or  more  they 
employed  in  carrying  passengers  and  freight  between  the  port  of 
Wheeling  and  other  ports  on  the  Ohio  River. 

It  appears  that  the  plaintiffs  are  an  incorporated  company  organ- 
ized under  the  law  of  the  State,  and  that  the  defendants  are  a  muni- 
cipal corporation  chartered  as  a  city  under  the  law  of  the  same  State. 
Authority  is  vested  in  the  city  to  assess,  levy,  and  collect  an  annual 
tax,  under  such  regulations  as  they  may  prescribe  by  ordinance  for 
the  use  of  the  city,  on  personal  property  in  the  city,  not  to  exceed 
in  any  one  year  fifty  cents  on  every  one  hundred  dollars  of  the 
assessed  valuation  thereof.  By  the  same  law  it  is  provided  that 
personal  property  shall  be  deemed  to  include  all  subjects  of  taxation 
which  the  assessors,  acting  under  the  laws  of  the  State,  are  or  shall 
be  by  law  required  to  enter  on  their  books  as  such  property  for  the 
purpose  of  State  taxation.  Pursuant  to  that  law,  taxes  were 
assessed  for  the  several  years  mentioned  against  the  plaintiffs  for 


SECT.  II.  e.]        TRANSPORTATION   COMPANY   V.   WHEELING.  417 

the  appraised  value  of  the  four  steamboats  and  the  furniture  of  the 
same,  which  they  owned  and  used  as  aforesaid,  it  appearing  that  the 
phiintiffs'  principal  place  of  business  was  Wheeling,  and  that  three 
of  the  steamboats  were  usually  lying  at  the  wharf  or  at  the  bank 
of  the  river  within  the  corporate  limits  of  the  city. 

Throughout  the  whole  period  each  of  the  steamboats  was  duly 
enrolled  and  licensed  as  coasting  vessels  under  the  laws  of  the 
United  States,  and  the  agreed  statement  sbows  that  the  plaintiffs 
paid  for  each  all  dues,  fees,  and  charges  which  were  properly  de- 
mandable  under  those  laws.  Payment  of  the  taxes  was  made  under 
protest  and  in  order  to  escape  the  seizure  and  sale  of  the  steamboats. 
Service  was  made,  and  the  parties  having  waived  a  jury  and  filed 
an  agreed  statement  of  facts  as  before  stated,  submitted  the  case  to 
the  court  of  original  jurisdiction.  Hearing  was  had,  and  the  court 
rendered  judgment  in  favor  of  the  defendants.  Exceptions  were 
filed  by  the  plaintiffs,  and  they  removed  the  case  into  the  Supreme 
Court  of  the  State,  called  the  Court  of  Appeals  where  the  judgment 
of  the  subordinate  court  was  affirmed.  Though  defeated  in  both 
of  the  State  courts,  the  plaintiffs  sued  out  the  present  writ  of  error 
and  removed  the  cause  into  this  court. 

Since  the  transcript  was 'entered  here,  the  plaintiffs  have  assigned 
for  error  that  the  State  Court  of  Appeals  erred  in  holding  that  the 
taxes  levied  are  not  within  the  constitutional  prohibition  that  no 
State,  without  the  consent  of  Congress,  shall  lay  any  duty  of 
tonnage. 

Ships  or  vessels  of  ten  or  more  tons  burden,  duly  enrolled  and 
licensed,  if  engaged  in  commerce  on  waters  which  are  navigable  by 
such  vessels  from  the  sea,  are  ships  and  vessels  of  the  United  States, 
entitled  to  the  privileges  secured  to  such  vessels  by  the  act  for  enroll- 
ing and  licensing  ships  or  vessels  to  be  employed  in  the  coasting 
trade.     1  Stat.  205,  287. 

Authorities  to  show  that  the  States  are  prohibited  from  subjecting 
any  such  ship  or  vessel  to  any  duty  of  tonnage  is  scarcely  necessary, 
as  that  proposition  is  universally  admitted;  the  only  question  which 
can  properly  arise  in  the  case  presented  for  decision  being  whether 
the  tax  as  imposed  by  State  authority  is  or  is  not  a  tonnage  duty, 
within  the  meaning  of  the  Consitution.  Tonnage  duties  cannot  be 
levied;  but  it  is  too  well  settled  to  admit  of  question  that  taxes 
levied  by  a  State,  upon  ships  or  vessels  owned  by  the  citizens  of 
the  State,  as  property,  based  on  a  valuation  of  the  same  as  property, 
to  the  extent  of  such  ownership,  are  not  within  the  prohibition  of 
the  Constitution. 

Power  to  tax  for  the  support  of  the  State  governments  exists  in 
the  States  independently  of  the  national  government;  and  it  may 
well  be  assumed  that  where  there  is  no  cession  of  contradictory  or 
inconsistent  jurisdiction  in  the  United  States,  nor  any  restraining 
compact  in  the  Constitution,  the  power  in  the  States  to  tax  for  the 

27 


418  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

support  of  the  State  authority  reaches  all  the  property  within  the 
State  which  is  not  properly  regarded  as  the  instruments  or  means  of 
the  Federal  government.  Kathan  v.  Louisiana,  8  How.  73;  Brown 
V.  Maryland,  12  Wheat.  419;  Weston  v.  City  Council  of  Charleston, 
2  Pet.  449. 

Beyond  question  these  authorities  show  that  all  subjects  over 
which  the  sovereign  power  of  a  State  extends  are  objects  of  taxation, 
the  rule  being  that  the  sovereignty  of  a  State  extends  to  everything 
which  exists  by  its  own  authority  or  is  introduced  by  its  permission, 
except  those  means  which  are  employed  by  Congress  to  carry  into 
execution  the  powers  given  by  the  people  to  the  Federal  govern- 
ment, whose  laws,  made  in  pursuance  of  the  Constitution,  are 
supreme.  McCulloch  v.  Maryland,  4  Wheat.  429;  Savings  Society 
V.  Coite,  6  Wall.  604. 

Annual  taxes  upon  ships  and  vessels  for  the  support  of  the  State 
governments  as  property,  upon  a  valuation  as  other  personal  prop- 
erty, are  everywhere  laid;  nor  is  it  believed  that  it  requires  much 
argument  to  prove  that  the  opposite  theory  is  unsound  and  indefen- 
sible in  principle,  as  it  is  contrary  to  the  generally  received  opinion, 
and  wholly  unsupported  by  any  judicial  determination.  Instead  of 
that,  there  are  many  cases  in  which  the  courts,  in  refuting  the 
authority  of  the  States  to  lay  duties  of  tonnage,  have  admitted  that 
the  owners  of  ships  may  be  taxed  to  the  extent  of  their  interest  in 
the  same,  for  the  value  of  the  property.  Assessments  of  the  kind, 
when  levied  for  municipal  purposes,  must  be  made  against  the 
owner  of  the  property,  and  can  only  be  made  in  the  municipality 
where  the  owner  resides. 

Though  a  ship,  when  engaged  in  the  transportation  of  passengers, 
said  Mr.  Chief  Justice  Taney,  is  a  vehicle  of  commerce  and  within 
the  power  of  regulation  granted  to  Congress,  yet  it  has  always  been 
held  that  the  power  to  regulate  commerce,  as  conferred,  does  not 
give  to  Congress  the  power  to  tax  the  ship,  nor  prohibit  the  State 
from  taxing  it  as  the  property  of  the  owner,  when  he  resides  within 
their  own  jurisdiction;  and  he  adds,  that  the  authority  of  Congress 
to  tax  ships  is  derived  from  the  express  grant  of  power  in  the  eighth 
section  of  the  first  article,  to  lay  and  collect  taxes,  duties,  imports, 
and  excises;  and  that  the  inability  of  the  States  to  tax  the  ship  as  an 
instrument  of  commerce  arises  from  the  express  prohibition  contitined 
in  the  tenth  section  of  the  same  article.  Passenger  Cases,  7  How. 
283,  479. 

Support  to  that  view  is  also  derived  from  one  of  the  numbers  of 
the  Federalist,  which  has  ever  been  regarded  as  entitled  to  weight 
in  any  discussion  as  to  the  true  intent  and  meaning  of  the  provisions 
of  our  fundamental  law.  It  is  there  maintained  that  no  right  of 
taxation  which  the  States  had  previously  enjoyed  was  surrendered, 
unless  expressly  prohibited;  and  that  the  right  of  the  States  to  tax 
was  not  impaired  by  any  aflBrmative  grant  of  power  to  the  general 


SECT.  II.  e.J        TRANSPORTATION   COMPANY   V.    WHEELING.  419 

government;  that  duties  on  imports  were  a  part  of  the  taxing  power; 
and  that  the  States  wouhl  have  had  a  right,  after  the  adoption  of  the 
Constitution,  to  lay  duties  on  imports  and  exports  if  they  had  not 
been  expressly  prohibited  from  doing  so  by  that  instrument.  Fed- 
eralist, No.  32.  From  which  it  follows,  if  the  writer  of  that  publi- 
cation is  correct,  that  the  power  granted  to  regulate  commerce  did 
not  prohibit  the  States  from  laying  import  duties  upon  merchandise 
imported  from  foreign  countries;  that  the  commercial  clause  does  not 
apply  to  the  right  of  taxation  in  either  sovereignty,  the  taxing 
power  being  a  distinct  and  separate  power  from  the  power  to  regu- 
late commerce ;  and  that  the  right  of  taxation  in  the  States  remains 
over  every  subject  where  it  before  existed,  with  the  exception  only 
of  those  expressly  or  impliedly  prohibited. 

Neither  imposts  nor  duties  on  imports  or  exports  can  be  levied  by 
a  State,  except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws,  nor  can  a  State  levy  any  duty  of  tonnage  without 
the  consent  of  Congress.  State  power  of  taxation  is  doubtless  very 
comprehensive;  but  it  is  not  without  limits,  as  appears  from  what 
has  already  been  remarked,  to  which  it  may  be  added,  that  State  tax 
laws  cannot  restrain  the  action  of  the  national  authority,  nor  can 
they~ abridge  the  operation  of  any  law  which  Congress  may  constitu- 
tionally pass.  They  may  extend  to  every  object  of  value,  not  ex- 
cepted as  aforesaid,  within  the  sovereignty  of  the  State;  but  they 
cannot  reach  the  means  and  instruments  of  the  Federal  government, 
nor  the  administration  of  justice  in  the  Federal  courts,  nor  the  col- 
lection of  the  public  revenue,  nor  interfere  with  any  constitutional 
regulation  of  Congress. 

Power  to  tax  its  citizens  or  subjects  in  some  form  is  an  attribute 
of  every  government,  residing  in  it  as  part  of  itself;  and  hence  it 
follows  that  the  power  to  tax  may  be  exercised  at  the  same  time 
upon  the  same  objects  of  private  property  by  the  State  and  by  the 
United  States,  without  inconsistency  or  repugnancy.  McCulloch  v. 
Maryland,  supra ;  Providence  Bank  v.  Billings,  4  Pet.  514. 

Such  power  exists  in  the  State  as  one  conferred  or  not  prohibited 
by  the  State  constitution,  and  in  the  Congress  by  express  grant. 
Hence  the  existence  of  such  powers  is  perfectly  consistent,  though 
the  two  governments,  in  exercising  the  same,  act  entirely  independ- 
ent of  each  other  as  applied  to  the  property  of  the  citizens. 

Legislative  power  to  tax,  as  a  general  proposition,  extends  to  all 
proper  objects  of  taxation  within  the  sovereign  jurisdiction  of  a 
State ;  but  the  power  of  a  State  of  the  Union  to  lay  taxes  does  not 
extend  to  the  instruments  of  the  national  government,  nor  to  the 
constitutional  means  to  carry  into  execution  the  powers  conferred 
by  the  Federal  Constitution.  Tax  laws  of  the  State  cannot  restrain 
the  action  of  the  national  government,  nor  can  they  circumscribe 
the  operation  of  any  constitutional  act  of  Congress.  They  may 
extend  to  every  object  of  value  belonging  to  the  citizen  witliin  the 


420  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

sovereignty  of  the  State,  not  within  the  express  exemptions  of  the 
Constitution,  or  those  Avhich  are  necessarily  implied  as  falling  within 
the  category  of  means  or  instruments  to  carry  into  execution  the 
powers  granted  by  the  fundamental  law.  Day  v.  BuflSngton,  3 
Cliff.  387. 

Power  to  levy  taxes,  said  Mr.  Chief  Justice  Marshall,  could  not 
be  considered  as  abridging  the  right  of  the  States  on  that  subject, 
it  being  clear  that  the  States  might  have  exercised  the  power  to  levy 
duties  on  imports  or  exports  had  the  Constitution  contained  no  pro- 
hibition upon  the  subject;  from  which  he  deduces  the  proposition 
that  the  prohibition  is  an  exception  from  the  acknowledged  jDower  of 
the  States  to  levy  taxes,  and  that  the  prohibition  is  not  derived 
from  the  power  of  Congress  to  regulate  commerce.  Gibbons  v. 
Ogden,  9  Wheat.  201. 

States,  said  Mr.  Justice  McLean,  cannot  regulate  foreign  com- 
merce; but  he  held  in  the  same  case  that  they  may  tax  a  ship  or 
other  vessel  used  in  commerce  the  same  as  other  property  owned 
by  its  citizens,  or  they  may  tax  the  stages  in  which  the  mail  is 
transported,  as  that  does  not  regulate  the  conveyance  of  the  mail  any 
more  than  the  taxing  the  ship  regulates  commerce,  though  he  ad- 
mitted that  the  tax  in  both  instances  affected  in  some  degree  the  use 
of  the  property,  which  undoubtedly  is  correct.  Passenger  Cases, 
supra. 

Enrolled  vessels  engaged  in  conveying  passengers  and  freight, 
which  were  owned  by  citizens  of  the  State  of  New  York,  entered 
the  port  of  San  Francisco,  and  while  there  were  compelled  to  pay 
certain  taxes.  Payment  having  been  made  under  protest  the  owners 
of  the  vessels  brought  suit  to  recover  back  the  amount;  and  Mr. 
Justice  Nelson,  in  disposing  of  the  case  here,  in  behalf  of  the  court, 
held  "that  the  vessels  were  not  in  any  proper  sense  abiding  within 
the  limits  of  California  so  as  to  become  incorporated  with  the  other 
personal  property  of  the  State;  that  they  were  there  but  temporarily 
engaged  in  lawful  trade  and  commerce,  with  their  situs  at  the  home 
port,  where  the  vessels  belonged  and  where  the  owners  were  liable 
to  be  taxed  for  the  capital  invested,  and  where  the  taxes  had  been 
paid  " — which  shows  to  a  demonstration  that  the  owners  of  ships  and 
vessels  are  liable  to  taxation  for  their  interest  in  the  same  upon 
a  valuation  as  for  other  personal  property.  Hays  v.  Pacific  IMail 
Steamship  Co.,  17  How.  596,  599. 

Ships,  when  duly  registered  or  enrolled,  are  instruments  of  com- 
merce, and  are  to  be  regarded  as  means  employed  by  the  United 
States  in  execution  of  the  powers  of  the  Constitution,  and  therefore 
they  are  not  subject  to  State  regulations.  Sinnot  v.  Davenport,  22 
id.  227. 

Such  instruments  or  means  are  not  given  by  the  people  of  a  partic- 
ular State,  but  by  the  people  of  all  the  States,  and  upon  principle  as 
well  as  authority  should  be  subjected  to  that  government  only  which 
belongs  to  all. 


SECT.  II.  e.]        TRANSPORTATION    COMPANY   V.    WHEELING.  421 

Taxation,  beyond  all  doubt,  is  the  exercise  of  a  sovereign  power, 
and  it  must  be  admitted  that  all  subjects  over  which  the  sovereign 
power  of  a  State  extends  are  objects  of  taxation ;  but  it  is  equally 
clear  that  those  objects  over  which  it  does  not  extend  are  exempt 
from  State  taxation,  —  from  which  it  follows  that  the  means  and  in- 
struments of  the  general  government  are  exempt  from  taxation. 
McCulloch  V.  Maryland,  svpra. 

Tonnage  duties  on  ships  by  the  States  are  expressly  prohibited, 
but  taxes  levied  by  a  State  upon  ships  or  vessels  owned  by  the 
citizens  of  the  State  as  property,  based  on  a  valuation  of  the  same 
as  property,  are  not  within  the  prohibition,  for  the  reason  that  the 
prohibition,  when  properly  construed,  does  not  extend  to  the  invest- 
ments of  the  citizens  in  such  structures. 

Duties  of  tonnage,  says  Cooley,  the  States  are  forbidden  to  lay; 
but  he  adds  that  the  meaning  of  the  prohibition  seems  to  be  that 
vessels  must  not  be  taxed  as  vehicles  of  commerce,  according  to 
capacity,  it  being  admitted  that  they  may  be  taxed  like  other  prop- 
erty.    Cooley,  Const.  Lim.  (4th  ed.),  606. 

"Vessels  are  taxable  as  property,"  says  the  same  author;  and  he 
adds  that  "  possibly  the  tax  may  be  measured  by  the  capacity,  when 
they  are  taxed  only  as  property  and  not  as  vehicles  of  commerce ; " 
which  may  be  true  if  it  clearly  appears  that  the  tax  is  to  the  owner 
in  the  locality  of  his  residence,  and  is  not  a  tax  upon  the  ship  as 
an  instrument  of  commerce.     Cooley,  Taxation,  61. 

"  Whatever  more  general  or  more  limited  view  may"  be  entertained 
of  the  true  meaning  of  this  clause,"  says  Mr.  Justice  Miller,  "it  is 
perfectly  clear  that  a  duty,  tax,  or  burden  imposed  under  the  author- 
ity of  the  State,  which  is  by  the  law  imposing  it  to  be  measured  by 
the  capacity  of  the  vessel,  and  is  in  its  essence  a  contribution 
claimed  for  the  privilege  of  arriving  and  departing  from  a  port  in 
the  United  States,  is  within  the  prohibition."  Cannon  v.  Kew 
Orleans,  20  Wall.  577;  Peete  v.  Morgan,  19  id.  581;  State  Tonnage 
Tax  Cases,  12  id.  20  L 

Decided  cases  of  the  kind  everywhere  deny  to  the  States  the 
power  to  tax  ships  as  the  instruments  of  commerce,  but  they  all 
admit,  expressly  or  impliedly,  that  the  State  may  tax  the  owners  of 
such  personal  property  for  their  interest  in  the  same.  Correspond- 
ing views  are  expressed  by  Mr.  Burroughs  in  his  valuable  treatise 
upon  Taxation.  He  says  that  vessels  of  all  kinds  are  liable  to  taxa- 
tion as  property  in  the  same  manner  as  other  personal  property 
owned  by  citizens  of  the  State;  that  the  prohibition  only  comes  into 
play  where  they  are  not  taxed  in  the  same  manner  as  the  other  prop- 
erty of  the  citizens,  or  where  the  tax  is  imposed  upon  the  vessel  as 
an  instrument  of  commerce,  without  reference  to  the  value  as  prop- 
erty. Burroughs,  Taxation,  91;  Johnson  v.  Di-ummond,  20  Gratt. 
(Va.),  419. 

Property  in  ships  and  vessels,  say  the  Court  of  Appeals  of  Mary- 


422  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

land,  before  the  Federal  Constitution  was  adopted,  was  within  tLe 
taxing  power  of  tiie  State;  and  they  held  that  such  property  since 
that  time,  when  belonging  to  a  citizen  of  the  State  living  within  her 
territory  and  subject  to  her  jurisdiction,  and  protected  by  her  laws, 
is  a  part  of  his  capital  in  trade,  and,  like  other  property,  is  tlie 
subject  of  State  taxation.  Howell  v.  The  State,  3  Gill  (Md.),  14; 
Perry  v.  Torreuce,  8  Ohio,  522. 

Beyond  all  doubt,  the  taxes  in  this  case  were  levied  against  the 
owners  as  property,  upon  a  valuation  as  in  respect  to  all  other 
personal  property,  nor  is  it  pretended  that  the  taxes  were  levied  as 
duties  of  tonnage.  Congress  has  prescribed  the  rates  of  measure- 
ment and  computation  in  ascertaining  the  tonnage  of  American  ships 
and  vessels,  and  in  the  light  of  those  reguLitions  Burroughs  says 
that  the  word  "  tonnage  "  means  the  contents  of  the  vessel  expressed 
in  tons,  each  of  one  hundred  cubical  feet.     p.  89. 

Homans  says  that  the  word  has  long  been  an  official  term,  in- 
tended originally  to  express  the  burden  that  a  ship  would  carry,  in 
order  that  the  various  dues  and  customs  levied  upon  shipping  might 
be  imposed  according  to  the  size  of  the  vessel,  or  rather  in  propor- 
tion to  her  capability  of  carrying  burden.  Homan's  Diet.,  Com. 
and  IsTav.,  Tonnage. 

Tested  by  these  definitions  and  the  authorities  already  cited,  it  is 
as  clear  as  any  thing  in  legal  decision  can  be,  that  the  taxes  levied 
in  this  case  are  not  duties  of  tonnage,  within  the  meaning  of  the 
Federal  Constitution.  Taken  as  a  whole,  the  contention  of  the 
plaintiffs  is  not  that  the  taxes  in  question  are  duties  of  tonnage, 
but  their  proposition  is  that  ships  and  vessels,  when  duly  enrolled 
and  licensed  for  the  coasting  trade,  are  not  subject  to  State  taxation 
in  any  form,  and  that  the  owners  of  the  vessels  cannot  be  taxed  for 
the  same  as  property,  even  when  valued  as  other  personal  property, 
as  the  basis  of  State  or  municipal  taxation. 

Opposed  as  that  theory  is  to  the  settled  rule  of  construction,  that 
the  commercial  clause  of  the  Constitution  neither  confers,  regulates, 
nor  prohil)its  taxation,  it  is  not  deemed  necessary  to  give  the  theory 
much  further  consideration.  Gibbons  v.  Ogden,  supra.  By  that 
authority  it  is  settled  that  the  power  to  tax,  and  the  power  to  regu- 
late and  prohibit  taxation,  are  given  in  the  Constitution  by  separate 
clauses,  and  that  those  powers  are  altogether  separate  and  distinct 
from  the  power  to  regulate  commerce;  from  which  it  follows,  as  a 
necessary  consequence,  that  the  enrolment  of  a  ship  or  vessel  does 
not  exempt  the  owner  of  the  same  from  taxation  for  his  interest  in 
the  ship  or  vessel  as  property,  upon  a  valuation  of  the  same  as  in 
the  case  of  other  personal  property. 

Judgment  affirmed. 


SECT.  III.]  BOYD    V.    THAYER.  423 


Section  III.  —  Naturalization. 


BOYD   V.   THAYER. 
143  United  States,  135.     1892. 

[A  PROCEEDING  by  information  was  instituted  in  the  Supreme 
Court  of  Nebraska  by  Thayer,  who  had  been  governor  of  the  State 
and  was  entitled  to  hold  the  office  until  his  successor  was  duly 
elected  and  qualified,  to  question  the  right  of  Boyd,  who  claimed  to 
have  been  duly  elected  and  to  be  qualified  to  hold  that  office.  By 
the  Constitution  of  Nebraska  it  is  provided  that  no  one  shall  be 
eligible  as  governor  who  has  not  for  two  years  been  a  citizen  of  the 
United  States  and  of  the  State.  Relator  claimed  that  respondent 
was  not  such  citizen,  and  demurred  to  the  answer  setting  up  facts 
relied  on  to  show  such  citizenship.  The  Supreme  Court  of  Nebraska 
sjstained  this  demurrer  and  entered  up  judgment  of  ouster  as 
against  respondent,  reinstating  the  relator.  A  writ  of  error  was 
thereupon  sued  out  of  the  Supreme  Court  of  the  United  States  by 
Boyd,  by  which  he  sought  to  have  the  action  of  the  State  court 
reviewed  on  the  ground  that  it  involved  the  denial  of  a  right  or 
privilege  under  the  Constitution  and  laws  of  the  United  States. 
The  court,  Mr.  Justice  Field,  dissenting,  held  that  the  case  was 
within  its  jurisdiction.  Only  so  much  of  the  opinion  is  given  as  is 
necessary  to  present  the  views  of  the  court  on  the  subject  of 
naturalization.] 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

Naturalization  is  the  act  of  adopting  a  foreigner,  and  clothing 
him  with  the  privileges  of  a  native  citizen,  and  relator's  position 
is  that  such  adoption  has  neither  been  sought  nor  obtained  by 
respondent  under  the  acts  of  Congress  in  that  behalf. 

Congress  in  the  exercise  of  the  power  to  establish  a  uniform  rule 
of  naturalization  has  enacted  general  laws  under  which  individuals 
may  be  naturalized,  but  the  instances  of  collective  naturalization 
by  treaty  or  by  statute  are  numerous. 

Thus,  although  Indians  are  not  members  of  the  political  sover- 
eignty, many  classes  of  them  have  been  made  citizens  in  that  way. 
Elk  V.  Wilkins,  112  U.  S.  94.  By  the  treaty  of  September  27,  1830, 
provision  was  made  for  such  heads  of  families  of  the  Choctaws  as 
desired  it,  to  remain  and  become  citizens  of  the  United  Stntes. 
7  Stat.  335.    By  the  treaty  of  December  29,  1835,  such  individuals 


424  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

and  families  of  the  Cherokees  as  were  averse  to  a  removal  west  of 
the  Mississippi  ami  desirous  to  become  citizens  of  the  States  where 
they  resided  were  allowed  to  do  so.  Ibid.  483.  By  the  act  of  Con- 
gress of  March  3,  1843,  it  was  provided  that  on  the  comj)letion  of 
certain  arrangements  for  the  partition  of  the  lands  of  the  tribe 
among  its  members,  "the  said  Stockbridge  tribe  of  Indians,  and 
each  and  every  of  them,  shall  then  be  deemed  to  be,  and  from  that 
time  forth  are  hereby  declared  to  be,  citizens  of  the  United  States, 
to  all  intents  and  purposes,  and  shall  be  entitled  to  all  the  rights, 
privileges,  and  immunities  of  such  citizens."  5  Stat.  647,  c.  101, 
§  7.  And  such  was  the  act  of  March  3,  1839,  5  Stat.  c.  83,  pp.  349, 
351,  relating  to  the  Brothertown  Indians  of  Wisconsin. 

The  act  of  Congress  approved  February  8,  1887,  24  Stat.  388, 
c.  119,  was  much  broader,  and  by  its  terms  made  every  Indian  sit- 
uated as  therein  referred  to,  a  citizen  of  the  United  States. 

Manifestly  the  nationality  of  the  inhabitants  of  territory  acquired 
by  conquest  or  cession  becomes  that  of  the  government  under  whose 
dominion  they  pass,  subject  to  the  right  of  election  on  their  part  to 
retain  their  former  nationality  by  removal  or  otherwise,  as  may  be 
provided. 

All  white  persons  or  persons  of  European  descent  who  were  born 
in  any  of  the  colonies,  or  resided  or  had  been  adopted  there,  before 
1776,  and  had  adhered  to  the  cause  of  independence  up  to  July  4, 
1776,  were  by  the  declaration  invested  with  the  privileges  of  citi- 
zenship. United  States  v.  Ritchie,  17  How.  525,  539;  Inglis  v. 
Trustees  of  isailors'  Snug  Harbor,  3  Pet.  99.  In  Mcllvaine  v. 
Coxe's  Lessee,  4  Cranch,  209,  it  was  held  that  Mr.  Coxe  had  lost 
the  right  of  election  by  remaining  in  New  Jersey  after  she  had 
declared  herself  a  State,  and  had  passed  laws  pronouncing  him  to 
be  a  member  of  the  new  government;  but  the  right  itself  was  not 
denied.     Shanks  v.  Dupont,  3  Pet.  242. 

Under  the  second  article  of  Jay's  treaty  (8  Stat.  116,  117), 
British  subjects  who  resided  at  Detroit  before  and  at  the  time  of  the 
evacuation  of  the  Territory  of  Michigan,  and  who  continued  to 
reside  there  afterwards  without  at  any  time  prior  to  the  expiration 
of  one  year  from  such  evacuation  declaring  their  intention  of  becom- 
ing British  subjects,  became  ipso  foMo  to  all  intents  and  purposes 
American  citizens.     Crane  v.  Eeeder,  25  Mich.  303. 

By  section  three  of  Article  IV.  of  the  Constitution,  "  new  States 
may  be  admitted  by  the  Congress  into  this  Union  "  The  section, 
as  originally  reported  by  the  committee  of  detail,  contained  the 
language:  "If  the  admission  be  consented  to,  the  new  State  shall 
be  admitted  on  the  same  terms  as  the  original  ones.  But  the  legis- 
lature may  make  conditions  with  the  new  States  concerning  the 
public  debt  which  shall  be  then  subsisting."  These  clauses  were 
stricken  out,  in  spite  of  strenuous  opposition,  upon  the  view  that 
wide  latitude  ought  to  be  given  to  the  Congress,  and  the  denial  of 


SECT.  III.]  BOYD    V.   THAYER.  425 

any  attempt  to  impede  the  growth  of  the  western  country.  Madison 
Papers,  5  Elliot,  381,  492,  493;  3  Gilpin,  1456. 

And  paragraph  two  was  added,  that  "the  Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  particular 
State." 

By  article  three  of  the  treaty  of  Paris  of  1803  (8  Stat.  200,  202), 
it  was  provided  that  "the  inhabitants  of  the  ceded  territory  shall 
be  incorporated  in  the  Union  of  the  United  States,  and  admitted 
as  soon  as  possible,  according  to  the  priuciples  of  the  Federal 
Constitution,  to  the  enjoyment  of  all  the  rights,  advantages,  and 
immunities  of  citizens  of  the  United  States;  and  in  the  meantime 
they  shall  be  maintained  and  protected  in  the  free  enjoyment  of 
their  liberty,   property,  and  the  religion  which  they  profess." 

It  was  said  by  Mr.  Justice  Catron,  in  his  separate  opinion  in 
Dred  Scott  v.  Sandford,  19  How.  393,  525 :  "  The  settled  doctrine  in 
the  State  courts  of  Louisiana  is,  that  a  French  subject  coming  to  the 
Orleans  Territory,  after  the  treaty  of  1803  was  made,  and  before 
Louisiana  was  admitted  into  the  Union,  and  being  an  inhabitant  at 
the  time  of  the  admission,  became  a  citizen  of  the  United  States  by 
that  act;  that  he  was  one  of  the  inhabitants  contemplated  by  the 
third  article  of  the  treaty,  which  referred  to  all  the  inhabitants 
embraced  within  the  new  State  on  its  admission.  That  this  is  the 
true  construction  I  have  no  doubt." 

In  Desbois's  Case,  2  Martin,  185  (decided  in  1812),  one  Desbois, 
of  French  birth,  applied  for  a  license  to  practise  as  a  counsellor  and 
attorney  at  law  in  the  Superior  Courts  of  Louisiana,  and  by  one  of 
the  rules  of  the  court  the  applicant  could  not  be  admitted  unless  he 
was  a  citizen  of  the  United  States.  Desbois  conceded  that  he  had 
no  claim  to  citizenship  by  birth  nor  by  naturalization  under  the 
acts  of  Congress  to  establish  a  uniform  rule  on  that  subject,  but 
he  contended  that  there  was  a  third  mode  of  acquiring  citizenship 
of  the  United  States,  namely,  the  admission  into  the  Union  of  a 
State  of  which  he  was  a  citizen.  He  contended  that  as  he  had,  in 
the  year  1806,  removed  to  and  settled  with  his  family  in  the  city 
of  New  Orleans  in  the  Territory  of  Orleans,  in  contem])lation  of  the 
enjoyment  of  all  the  advantages  which  the  laws  of  the  Territory  and 
of  the  United  States  held  out  to  foreigners  removing  into  that 
Territory,  and  had  ever  since  considered  it  as  his  adopted  country, 
he  had  become  a  citizen  under  the  act  of  Congress  of  ]\rarch  2, 
1805,  further  providing  for  the  territorial  government  of  Orleans, 
the  enabling  act  of  February  20,  1811,  and  that  of  April  8,  1812, 
admitting  the  State. 

Judge  Martin,  who  delivered  the  opinion  of  the  court,  referred 
among  other  things  to  the  fact  that  the  act  of  Congress  authorizing 


426  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

the  formation  of  the  State  government  of  Louisiana  was  almost 
literally  copied  from  that  which  autliorized  that  of  Ohio,  and, 
pointing  out  that  by  the  first  section  of  the  latter  statute  the  inhabi- 
tants ot  the  designated  Territory  were  authorized  to  form  for  them- 
selves  a  State  constitution,  while  by  the  fourth  section  the  persons 
entitled  to  vote  for  members  of  the  convention  were  described  as, 
first,  all  male  citizens  of  the  United  States,  and  next,  all  other 
persons  having  in  all  other  respects  the  legal  qualifications  to  vote 
for  members  of  the  general  assembly  of  the  Territory,  which  were  a 
freehold  of  fifty  acres  of  land  in  the  district  and  citizenship  of  one 
of  the  States  and  residence  in  the  district,  or  the  like  freehold  and 
two  years'  residence  in  the  district,  said,  "The  word  'inhabitants,'  in 
the  first  section  of  this  act,  must  be  taken  lato  sensu;  it  cannot  be 
restrained  so  as  to  include  citizens  of  the  United  States  only;  for 
other  persons  are  afterwards  called  upon  to  vote.  There  is  not  any 
treaty,  or  other  instrument,  which  may  be  said  to  control  it. 
Every  attempt  to  restrict  it  must  proceed  on  principles  absolutely 
arbitrary.  If  the  word  is  to  be  taken  lato  sensu  in  the  act  passed 
in  favor  of  the  people  of  one  Territoi-y,  is  there  any  reason  to  say 
that  we  are  to  restrain  it,  in  another  act,  passed  for  similar  pur- 
poses, in  favor  of  the  people  of  another  Territory  ?  " 

And  after  an  able  discussion  of  the  subject,  he  concluded  that  the 
applicant  must  be  considered  a  citizen  of  the  State  of  Louisiana, 
and  entitled  to  all  the  rights  and  privileges  of  a  citizen  of  the 
United  States. 

In  1813,  in  United  States  v.  Laverty,  3  Martin,  733,  Judge  Hall 
of  the  District  Court  of  the  United  States  held  that  the  inhabitants 
of  the  Territory  of  Orleans  became  citizens  of  Louisiana  and  of  the 
United  States  by  the  admission  of  Louisiana  into  the  L^nion;  denied 
that  the  only  constitutional  mode  of  becoming  a  citizen  of  the 
United  States  is  naturalization  by  compliance  with  the  uniform 
rule  established  by  Congress;  and  fully  agreed  with  the  decision  in 
Desbois's  case,  which  he  cited.  By  the  ordinance  for  the  govern- 
ment of  the  Northwest  Territory,  of  July  13,  1787,  it  was  provided 
that  as  soon  as  there  should  be  5,000  free  male  inhabitants  of  full 
age  in  the  district  thereby  constituted,  they  were  to  receive  author- 
ity to  elect  representatives  to  a  general  assembly,  and  the  qualifi- 
cations of  a  re])resentative  in  such  cases  were  previous  citizenship 
of  one  of  the  United  States  for  three  years  and  residence  in  the 
district,  or  a  residence  of  three  years  in  the  district  and  a  fee- 
simple  estate  of  200  acres  of  land  therein.  The  qualifications  of 
electors  were  a  freehold  in  fifty  acres  of  land  in  the  district,  previous 
citizenship  of  one  of  the  United  States,  and  residence,  or  the  like 
freehold,  and  two  years'  residence  in  the  district.  And  it  was  also 
provided  that  there  should  be  formed  in  the  Territory  not  less  than 
three  nor  more  than  five  States,  with  certain  boundaries,  and  that 
whenever  any  such  State  should  contain  60,000  free   inhabitants, 


I 

MM 


SECT.  III.]  BOYD    V.    THAYER.  427 

such  State  should  be  admitted  by  its  delegates  in  Congress  on  an 
equal  footing  with  the  original  States  in  all  respects  whatever,  and 
should  be  at  liberty  to  form  a  permanent  constitution  and  State 
government,  provided  it  should  be  republican  and  in  conformity 
with  the  articles  of  compact.  1  Stat,  ol  a;  Kev.  Stat.  2d  ed. 
Organic  Laws,  13,   14. 

Reference  to  the  various  acts  of  Congress  creating  the  Indiana 
and  Illinois  Territories,  2  Stat.  58;  2  Stat.  514;  the  enabling  acts 
under  which  the  State  governments  of  Ohio,  Indiana,  and  Illinois 
were  formed,  2  Stat,  173;  3  Stat.  289;  2  Stat.  428;  and  the  act 
recognizing,  and  resolutions  admitting,  those  States,  2  Stat.  201 ; 
3  Stat.  399;  3  Stat.  536;  and  to  their  original  constitutions;  es- 
tablishes that  the  inhabitants  or  people  who  were  empowered  to 
take  part  in  the  creation  of  these  new  political  organisms,  and 
who  continued  to  participate  in  the  discharge  of  political  func- 
tions, included  others  than  those  who  were  originally  citizens  of 
the  United  States.  And  that  the  action  of  Congress  was  advisedly 
taken  is  put  beyond  doubt  by  the  language  used  in  the  legislation 
in  question. 

In  the  case  of  the  admission  of  jNIichigan  this  was  strikingly 
shown.  By  the  act  of  Congress  of  January  11,  1805,  2  Stat.  309, 
a  part  of  the  Indiana  Territory  was  constituted  the  Territory  of 
Michigan,  and  a  government  in  all  respects  similar  to  that  pro- 
vided by  the  ordinance  of  1787  was  established.  The  act  of  Feb- 
ruary 16,  1819,  3  Stat.  482,  authorized  that  Territory  to  send 
a  delegate  to  Congress,  and  conferred  the  right  of  suffrage  on 
the  free  white  male  citizens  of  the  Territory  who  had  resided 
therein  one  year  next  preceding  the  election  and  had  paid  county 
or  territorial  taxes.  The  act  of  ]\Iarch  3,  1823,  3  Stat.  769,  pro- 
vided that  all  citizens  of  the  United  States  having  the  qualifica- 
tions prescribed  by  the  act  of  February  16,  1819,  should  be  entitled 
to  vote  and  be  eligible  to  office.  By  an  act  of  the  territorial  legis- 
lature of  January  26,  1835,  the  free  white  male  inhabitants  of  the 
Territory  of  full  age,  who  had  resided  therein  three  months  pre- 
ceding "the  fourth  day  of  April  next  in  the  year  one  thousand  eight 
hundred  and  thirty-five,"  were  authorized  to  choose  delegates  to 
form  a  constitution  and  State  government.  Mich.  Laws,  1835,  pp. 
72,  75.  Delegates  were  elected  accordingly,  and  a  constitution  com- 
pleted June  29,  1835,  and  ratified  by  a  vote  of  the  peoide  November 
2,  1835,  which  provided  that  every  white  male  citizen  above  the 
age  of  twenty-one  years,  who  had  resided  in  the  State  six  months 
next  preceding  any  election,  should  be  entitled  to  vote  at  any  elec- 
tion, "and  every  white  male  inhabitant  of  the  age  aforesaid,  who 
may  be  a  resident  of  the  State  at  the  time  of  the  signing  of  this 
constitution,  shall  have  the  right  of  voting  as  aforesaid."  1  Charters 
and  Constitutions,  983,  984.  This  constitution  was  laid  before  Con- 
gress by  President  Jackson  in  a  special  message,  December  9,  1835, 


428  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

and  a  bill  was  introduced  for  the  admission  of  Michigan  into  the 
Union.  Wliile  tiiis  was  under  considei-ation  an  amendment  to 
the  provision  that  on  the  assent  being  given  by  a  convention  of 
the  people  of  Michigan  to  certain  boundaries  defined  in  the  bill,  the 
State  should  be  admitted,  to  strike  out  the  words  "people  of  the 
said  State  "  and  insert  "  by  the  free  male  white  citizens  of  the  United 
States  over  the  age  of  twenty-one  years,  residing  within  the  limits 
of  the  proposed  State,"  was  voted  down;  as  was  also  another 
amendment  proposing  to  insert  after  that  part  of  the  bill  which 
declared  the  constitution  of  the  new  State  ratified  and  confirmed  by 
Congress,  the  words  "  except  that  provision  of  said  constitution  by 
which  aliens  are  permitted  to  enjoy  the  right  of  suffrage."  The 
act  was  passed  June  15,  1836,  and  the  conditions  imposed  having 
been  first  rejected  and  then  finally  accepted,  the  State  was  admitted 
into  the  Union  by  the  act  of  January  20,  1837. 

In  all  these  instances  citizenship  of  the  United  States  in  virtue  of 
the  recognition  by  Congress  of  the  qualified  electors  of  the  State  as 
citizens  thereof,  was  apparently  conceded,  and  it  was  the  effect  in 
that  regard  that  furnished  a  chief  argument  to  those  who  opposed 
the  admission  of  Michigan.  It  may  be  added  as  to  that  State  that 
the  State  constitution  of  1850,  as  amended  in  1870,  preserved  the 
rights  as  an  elector  of  "every  male  inhabitant,  residing  in  the 
State  on  the  24th  day  of  June,  1835."  And  in  Attorney-General 
V.  Detroit,  78  Mich.  545,  563,  the  Supreme  Court  of  Michigan 
assigned  as  one  of  the  reasons  for  holding  the  registry  law  under 
consideration  invalid,  that  no  provision  was  therein  made  for  this 
class  of  voters,  nor  for  the  inhabitants  who  had  resided  in  Michigan 
in  1850  and  declared  their  intention  to  become  citizens  of  the 
United  States,  who  had  the  right  to  vote  under  the  constitution  of 
1850. 

The  sixth  article  of  the  treaty  of  1819  wit?  Spain,  8  Stat.  256, 
contained  a  provision  to  the  same  effect  as  that  in  the  treaty  of 
Paris,  and  Mr.  Chief  Justice  Marshall  said  (Amer.  Ins.  Co.  v. 
Canter,  1  Pet.  511,  542) :  "  This  treaty  is  the  law  of  the  land,  and 
admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  privi- 
leges, rights,  and  immunities  of  the  citizens  of  the  United  States. 
It  is  unnecessary  to  inquire  whether  this  is  not  their  condition, 
independent  of  stipulation.  They  do  not,  however,  participate  in 
political  power;  they  do  not  share  in  the  government  till  Florida 
shall  become  a  State.  In  the  meantime,  Florida  continues  to  be  a 
Territory  of  the  United  States;  governed  by  virtue  of  that  clause  in 
the  Constitution,  which  empowers  Congress  '  to  make  all  needful 
rules  and  regulations,  respecting  the  Territory,  or  other  property 
belonging  to  the  United  States.'  " 

At  the  second  session  of  the  Twenty -seventh  Congress,  in  the 
case  of  David  Levy,  who  had  been  elected  a  delegate  from  the 
Territory  of  Florida,  where  it  was  alleged  that  he  was  not  a  citizen 


SECT.  III.]  BOYD    V.   THAYER.  429 

of  the  United  States,  it  was  held  hy  the  House  Committee  on  Elec- 
tions that  "it  matters  nothing  wliether  the  naturalization  be  effected 
by  act  of  Congress,  by  treaty,  or  by  the  admission  of  new  States, 
the  provision  is  alike  applicable." 

The  question  turned  on  whether  Mr.  Levy's  father  was  an  inhabi- 
tant of  i'lorida  at  the  time  of  its  transfer  to  the  United  States,  as 
the  son  admitted  that  he  was  not  a  native-born  citizen  of  the  United 
States,  but  claimed  citizenship  through  that  of  his  father  effected 
by  the  treaty  while  he  was  a  minor.  The  argument  of  the  report  in 
support  of  the  position  that  "no  principle  has  been  more  repeatedly 
announced  by  the  judicial  tribunals  of  the  country,  and  more  con- 
stantly acted  upon,  than  that  the  leaning,  in  questions  of  citizen- 
ship, should  always  be  in  favor  of  the  claimant  of  it,"  and  that 
liberality  of  interpretation  should  be  applied  to  such  a  treaty,  is 
well  worthy  of  perusal.  Contested  Elections,  1834,  1835,  2d  Ses- 
sion, 38th  Congress,  41. 

By  the  eighth  article  of  the  treaty  with  Mexico  of  1848,  those 
Mexicans  who  remained  in  the  territory  ceded,  and  who  did  not 
declare  within  one  year  their  intention  to  remain  Mexican  citizens, 
were  to  be  deemed  citizens  of  the  United  States.     9  Stat.  930. 

By  the  annexation  of  Texas,  under  a  joint  resolution  of  Congress 
of  March  1,  1845,  and  its  admission  into  the  Union  on  an  equal 
footing  with  the  original  States,  December  29,  1845,  all  the  citizens 
of  the  former  republic  became,  without  any  express  declaration, 
citizens  of  the  United  States.  5  Stat.  798;  9  Stat.  108;  McKinney 
V.  Saviego,  18  How.  235;  Cryer  v.  Andrews,  11  Texas,  170; 
Barrett  v.  Kelly,  31  Texas,  476;  Carter  v.  Territory,  1  N.  Mex. 
317. 

It  is  too  late  at  this  day  to  question  the  plenary  power  of  Con- 
gress over  the  Territories.  As  observed  by  Mr.  Justice  Matthews, 
delivering  the  opinioi.  ol  the  court  in  Murphy  v.  Ramsey,  114  U.  S. 
15,  44:  "It  rests  with  Congress  to  say  whether,  in  a  given  case,  any 
of  the  people,  resident  in  the  Territory,  shall  participate  in  the 
election  of  its  officers,  or  the  making  of  its  laws;  and  it  may,  there- 
fore, take  from  them  any  right  of  suffrage  it  may  previously  have 
conferred,  or  at  any  time  modify  or  abridge  it  as  it  may  deem  exj)e- 
dient.  The  right  of  local  self-government,  as  known  to  our  system 
as  a  constitutional  franchise,  belongs,  under  the  Constitution,  to 
the  States  and  to  the  people  thereof,  by  whom  that  Constitution 
was  ordained,  and  to  whom  b}'  its  terms  all  power  not  conferred  by 
it  upon  the  government  of  the  United  States  was  expressly  reserved. 
The  personal  and  civil  rights  of  the  inhabitants  of  the  Territories 
are  secured  to  them,  as  to  other  citizens,  by  the  principles  of  con- 
stitutional liberty  which  restrain  all  the  agencies  of  government. 
State  and  National;  their  political  rights  are  franchises  which  they 
hold  as  privileges  in  the  legislative  discretion  of  the  Congress  of 
the  United  States.  ...  If  we  concede  that  this  discretion  in  Con- 


430  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV, 

gress  is  limited  by  the  obvious  purposes  for  which  it  was  conferred, 
aud  that  those  purposes  are  satislied  by  measures  which  prepare  the 
people  of  the  Territories  to  become  States  in  the  Union,  still  the 
conclusion  cannot  be  avoided,  that  the  act  of  Congress  here  in  ques- 
tion is  clearly  within  that  justification." 

Congress  having  the  power  to  deal  with  the  people  of  the  Ter- 
ritories in  view  of  the  future  States  to  be  formed  from  them,  there 
can  be  no  doubt  that  in  the  admission  of  a  State  a  collective  natu- 
ralization may  be  effected  in  accordance  with  the  intention  of  Con- 
gress and  the  people  applying  for  admission. 

Admission  on  an  equal  footing  with  the  original  States,  in  all 
respects  whatever,  involves  equality  of  constitutional  right  and 
power,  which  cannot  thereafterwards  be  controlled,  and  it  also 
involves  the  adoption  as  citizens  of  the  United  States  of  those 
whom  Congress  makes  members  of  the  political  community,  and 
who  are  recognized  as  such  in  the  formation  of  the  new  State  with 
the  consent  of  Congress. 

[The  enabling  act  for  the  admission  of  Nebraska,  and  the  pro- 
ceedings had  thereunder,  are  then  set  out.] 

It  follows  from  these  documents  that  Congress  regarded  as  citi- 
zens of  the  Territory  all  who  were  already  citizens  of  the  United 
States,  and  all  who  had  declared  their  intention  to  become  such. 
Indeed,  they  are  referred  to  in  section  three  of  the  enabling  act 
as  citizens,  and  by  the  organic  law  the  right  of  suffrage  and  of  hold- 
ing office  had  been  allowed  to  them.  Those  whose  naturalization 
was  incomplete  were  treated  as  in  the  same  categorj-  as  those  who 
were  already  citizens  of  the  United  States.  What  the  State  had 
power  to  do  after  its  admission  is  not  the  question.  Before  Con- 
gress let  go  its  hold  upon  the  Territory,  it  was  for  Congress  to  say 
who  were  members  of  the  political  community.  So  far  as  the  orig- 
inal States  were  concerned,  all  those  who  were  citizens  of  such 
States  became  upon  the  formation  of  the  Union  citizens  of  the 
United  States,  and  upon  the  admission  of  Nebraska  into  the  Union 
*'upon  an  equal  footing  with  the  original  States,  in  all  respects 
whatsoever,"  the  citizens  of  what  had  been  the  Territory  became 
citizens  of  the  United  States  and  of  the  State. 

As  remarked  by  Mr.  Chief  Justice  Waite  in  Minor  v.  Happer- 
sett,  21  Wall.  162,  167:  "Whoever,  then,  was  one  of  the  people  of 
either  of  these  States  when  the  Constitution  of  the  United  States 
was  adopted,  became  ipso  facto  a  citizen  —  a  member  of  the  nation 
created  by  its .  adoption.  He  was  one  of  the  persons  associating 
together  to  form  the  nation  and  was,  consequently,  one  of  its  origi- 
nal citizens.  As  to  this  there  has  never  been  a  doubt.  Disputes 
have  arisen  as  to  whether  or  not  certain  persons  or  certain  classes 
of  persons  were  part  of  the  people  at  the  time,  but  never  as  to  their 
citizenship  if  they  were." 

But   it   is   argued   that  James  E.  Boyd  had   never   declared  his 


SECT,  III.]  BOYD    V.   THAYER.  431 

intentiou  to  become  a  citizen  of  the  United  States,  although  his 
father  had,  and  that  because,  as  alleged,  his  father  liad  not  com- 
pleted his  naturalization  before  the  son  attained  his  majority,  the 
latter  cannot  be  held  to  come  within  the  purview  of  the  acts  of 
Congress  relating  to  the  Territory  and  the  admission  of  the  State, 
so  as  to  be  entitled  to  claim  to  have  been  made  a  citizen  thereby. 

The  act  of  March  2G,  1790,  1  Stat.  103,  provided  for  the  natu- 
ralization of  aliens,  and  then  that  "  the  children  of  such  persons  so 
naturalized,  dwelling  within  the  United  States,  being  under  the  age 
of  twenty-one  years  at  the  time  of  such  naturalization,  shall  also  be 
considered  as  citizens  of  the  United  States." 

The  third  section  of  the  act  of  January  29,  1795,  1  Stat.  414,  415, 
provided  "that  the  children  of  persons  duly  naturalized,  dwelling 
within  the  United  States,  and  being  under  the  age  of  twenty-one 
years,  at  the  time  of  such  naturalization,  and  the  children  of  citi- 
zens of  the  United  States,  born  out  of  the  limits  and  jurisdiction 
of  the  United  States,  shall  be  considered  as  citizens  of  the  United 
States,"  &c. 

The  fourth  section  of  the  act  of  April  14,  1802,  2  Stat.  153,  155, 
carried  into  the  Revised  Statutes  as  section  2172,  was:  "That  the 
childreii  of  persons  duly  naturalized  under  any  of  the  laws  of  the 
United  States,  or  who,  previous  to  the  passing  of  any  law  on  that 
subject,  by  the  government  of  the  United  States,  may  have  become 
citizens  of  any  one  of  the  said  States,  under  the  laws  thereof,  being 
under  the  age  of  twenty-one  years,  at  the  time  of  their  parents 
being  so  naturalized  or  admitted  to  the  rights  of  citizenship,  shall, 
if  dwelling  in  the  United  States,  be  considered  as  citizens  of  the 
United  States."  In  Campbell  v.  Gordon,  6  Cranch,  176,  it  was 
held  that  this  section  conferred  the  rights  of  citizenship  upon  the 
minor  child  of  a  parent  who  had  been  duly  naturalized  under  the  act 
of  1795,  although  the  child  did  not  become  a  resident  of  the  United 
States  until  she  came  "here  after  that,  but  before  the  act  of  1802 
was  passed. 

The  rule  was  to  be  a  uniform  rule,  and  we  perceive  no  reason  for 
limiting  such  a  rule  to  the  children  of  those  who  had  been  already 
naturalized.  In  our  judgment  the  intention  was  that  the  act  of 
1802  should  have  a  prospective  operation.  United  States  v.  Kellar, 
13  Fed.  Rep.  82;  West  v.  West,  8  Paige,  433;  State  v.  Andriano,  92 
Mo.  70 ;  State  v.  Penney,  10  Ark.  621 ;  O'Connor  v.  The  State,  9  Fla. 
215. 

By  the  second  section  of  the  act  of  March  26,  1804,  2  Stat.  292, 
p.  293,  if  any  alien  who  had  complied  with  the  terms  of  the  act 
should  die  without  having  completed  his  naturalization,  his  widow 
and  children  should  be  considered  citizens  upon  taking  the  oaths 
prescribed  by  law  ;  and  this  was  carried  forward  into  section  2168 
of  the  Revised  Statutes. 

By  the   first   section   of   the   act   of  May   26,    1824,   4  Stat.   69, 


432  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

carried  forward  into  section  2167  of  the  Revised  Statutes,  any 
alien  bein<^  a  minor,  who  shall  have  resided  in  the  United  States 
three  years  next  preceding  his  arrival  at  majority  and  continued  to 
reside  therein,  may,  upon  reaching  the  age  of  twenty-one  years, 
and  after  a  residence  of  five  years,  including  the  three  years  of 
minority,  be  admitted  a  citizen  of  the  United  States  without  having 
made  during  minority  the  declaration  of  intention  required  in  the 
case  of  aliens. 

The  statutory  provisions  leave  much  to  be  desired,  and  the  atten- 
tion of  Congress  has  been  called  to  the  condition  of  the  laws  in 
reference  to  election  of  nationality;  and  to  the  desirability  of  a 
clear  definition  of  the  status  of  minor  children  of  fathers  who  had 
declared  their  intention  to  become  citizens,  but  had  failed  to  per- 
fect their  naturalization;  and  of  the  status  gained  by  those  of  full 
age  by  the  declaration  of  intention.  2  Whart.  Int.  Dig.  340,  8 11, 
350. 

Clearly  minors  acquire  an  inchoate  status  by  the  declaration  of 
intention  on  the  part  of  their  parents.  If  they  attain  their  majority 
before  the  parent  completes  his  naturalization,  then  they  have  an 
election  to  repudiate  the  status  which  they  find  impressed  upon 
them,  and  determine  that  they  will  accept  allegiance  to  some  foreign 
potentate  or  power  rather  than  hold  fast  to  the  citizenship  which 
the  act  of  the  parent  has  initiated  for  them.  Ordinarily  this  elec- 
tion is  determined  by  application  on  their  own  behalf,  but  it  does 
not  follow  that  an  actual  equivalent  may  not  be  accepted  in  lieu  of 
a  technical  compliance. 

James  E.  Boyd  was  born  in  Ireland  of  Irish  parents  in  1834,  and 
brought  to  this  country  in  1844  by  his  father,  Joseph  Boyd,  who 
settled  at  Zanesville,  Muskingum  County,  Ohio,  and  on  March  5, 
1840,  declared  his  intention  to  become  a  citizen  of  the  United 
States.  In  1855  James  E.  Boyd,  who  had  grown  up  in  the  full 
belief  of  his  father's  citizenship,  and  had  been  assured  by  him  that 
he  had  completed  his  naturalization  by  taking  out  his  second  papers 
in  1854,  voted  in  Ohio  as  a  citizen.  In  August,  1856,  he  removed 
to  the  Territory  of  Nebraska.  In  1857  he  was  elected  and  served  as 
county  clerk  of  Douglas  County;  in  1864  he  was  sworn  into  the 
military  service  and  served  as  a  soldier  of  the  Federal  government 
to  defend  the  frontier  from  an  attack  of  Indians;  in  1866  he  was 
elected  a  member  of  the  Nebraska  legislature  and  served  one  ses- 
sion; in  1871  he  was  elected  a  member  of  the  convention  to  frame 
a  State  constitution  and  served  as  such;  in  1875  he  was  again 
elected  and  served  as  a  member  of  the  convention  which  framed  the 
present  State  constitution;  in  1880  he  was  elected  and  acted  as 
president  of  the  city  council  of  Omaha;  and  in  1881  and  1885, 
respectively,  was  elected  mayor  of  that  city,  serving  in  all  four 
years.  From  1856  until  the  State  was  admitted,  and  from  thence 
to  this  election,  he  had  voted  at  every  election,  territorial,  State, 


SECT.  HI.]  BOYD    V.   THAYER.  433 

municipal,  and  national.  He  had  taken,  prior  to  tlie  admission  of 
the  State,  the  oath  required  by  law  in  entering  upon  the  duties  of 
the  offices  he  had  filled,  and  sworn  to  support  the  Constitution 
of  the  United  States  and  the  provisions  of  the  organic  act  under 
which  the  Territory  of  Nebraska  was  created.  For  over  thirty 
years  prior  to  his  election  as  governor  he  had  enjoyed  all  the  rights, 
privileges,  and  immunities  of  a  citizen  of  the  United  States  and  of 
the  Territory  and  State,  as  being  in  law,  as  he  was  in  fact,  such 
citizen. 

When  he  removed  to  Nebraska,  that  Territory  was  to  a  large 
extent  a  wilderness,  and  he  spent  years  of  extreme  hardship  upon 
the  frontier,  one  of  the  pioneers  of  the  new  settlement  and  one  of 
the  inhabitants  who  subsequently  formed  a  government  for  them- 
selves. The  policy  which  sought  the  development  of  the  country 
by  inviting  to  participation  in  all  the  rights,  privileges,  and  immu- 
nities of  citizenship,  those  who  would  engage  in  the  labors  and 
endure  the  trials  of  frontier  life,  which  has  so  vastly  contributed  to 
the  unexampled  progress  of  the  nation,  justifies  the  application  of 
a  liberal  rather  than  a  technical  rule  in  the  solution  of  the  question 
before  us. 

We  are  of  opinion  that  James  E.  Boyd  is  entitled  to  claim  that 
if  his  father  did  not  complete  his  naturalization  before  his  son  had 
attained  majority,  the  son  cannot  be  held  to  have  lost  the  inchoate 
status  he  had  acquired  by  the  declaration  of  intention,  and  to  have 
elected  to  become  the  subject  of  a  foreign  power,  but,  on  the  con- 
trary, that  the  oaths  he  took  and  his  action  as  a  citizen  entitled 
him  to  insist  upon  the  benefit  of  his  father's  act,  and  placed  him  in 
the  same  category  as  his  father  would  have  occupied  if  he  had 
emigrated  to  the  Territory  of  Nebraska;  that,  in  short,  he  was 
within  the  intent  and  meaning,  elfect  and  operation,  of  the  acts  of 
Congress  in  relation  to  citizens  of  the  Territory,  and  was  made  a 
citizen  of  the  United  States  and  of  the  State  of  Nebraska  under  the 
organic  and  enabling  acts  and  the  act  of  admission. 

[Another  line  of  reasoning  is  then  stated  leading  to  the  same 
result,  the  reversal  of  the  decision  of  the  State  court.  Mr.  Justice 
Harlan,  Mr.  Justice  Gray,  and  Mr.  Justice  Brown  concur  in 
the  result  on  this  second  line  of  reasoning.] 

[As  to  citizenship  of  inhabitants  of  territory  annexed  to  the  United 
States  see  the  case  of  Downes  v.  Bidwell,  182  U.  S.  244,  in  Appen- 
dix B,  at  p.         .]  I 


28 


434  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

In  re  RODRIGUEZ. 

81  Federal  Reporter,  337.     1897. 

[United  States  District  Court ;  Western  District  of  Texas.] 
At  the  May  term,  1896,  of  this  court,  Ricardo  Rodriguez,  a  citizen 
of  Mexico,  filed  au  application,  in  due  form,  by  which  he  sought  to 
become  a  naturalized  citizen  of  the  United  States.  Two  affidavits, 
embodying  the  essential  requisites  prescribed  by  the  naturalization 
laws,  accompanied  the  application,  and  also  a  copy  of  the  affidavit 
made  by  the  applicant,  and  filed  in  the  county  court  of  Bexar  County, 
Tex.,  January  25,  1893,  in  which  he  declared  his  intention  to  become 
a  citizen  of  the  United  States. 

Maxey,  District  Judge,  after  stating  the  case,  delivered  the  fol- 
lowing opinion :  — 

The  applicant,  a  citizen  by  birth  of  the  republic  of  Mexico,  desires 
to  avail  himself  of  the  inherent  right  of  expatriation,  and  to  invest 
himself  with  the  rights  and  privileges  pertaining  to  citizenship  of  our 
country.  Although  forty-nine  years  have  elapsed  since  the  negotiation 
of  the  treaty  of  Guadalupe-Hidalgo,  which  greatly  increased  our  terri- 
torial area,  and  incorporated  many  thousands  of  Mexicans  into  our 
common  citizenship,  as  will  be  hereinafter  shown,  the  question  of  the 
individual  naturalization  of  a  Mexican  citizen  is  now  for  the  first  time, 
so  far  as  the  court  is  advised,  submitted  for  judicial  determination. 
To  the  question,  why  may  not  he  be  naturalized  under  the  laws  of 
Congress  ?  it  is  replied  that  by  section  2169  of  the  Revised  Statutes 
it  is  provided :  "  The  provisions  of  this  title  shall  apply  to  aliens  (be- 
ing free  white  persons,  and  to  aliens)  of  African  nativity,  and  to  per- 
sons of  African  descent."  The  contention  is  that,  by  the  letter  of 
the  statute,  a  Mexican  citizen,  answering  to  the  description  of  the 
applicant,  is,  because  of  his  color,  denied  the  right  to  become  a  citizen 
of  the  United  States  by  naturalization;  and,  in  support  of  this 
view,  the  following  authorities  are  relied  upon :  In  re  Ah  Yup  (de- 
cided by  Judge  Sawyer  in  1878),  5  Sawy.  155,  1  Fed.  Cas.  223 ;  In  re 
Camille  (decided  by  Judge  Deady  in  1880),  6  Fed.  256;  In  re  Kanaka 
Nian  (decided  by  Supreme  Court  of  Utah  in  1889),  21  Pac.  993;  In 
re  Saito  (decided  by  Judge  Colt  in  1894),  62  Fed.  126;  and  2  Kent, 
Coram.  73,  where  the  learned  Chancellor  expresses  a  doubt  in  these 
words :  "  Perhaps  there  might  be  difficulties  also  as  to  the  copper- 
colored  natives  of  America,  or  the  yellow  or  tawny  races  of  Asiatics, 
and  it  may  well  be  doubted  whether  any  of  them  are  white  persons, 
within  the  purview  of  the  law." 

Of  the  four  cases  above  cited,  In  re  Ah  Yup  is  the  first  in  point  of 
time,  and  the  leading  one.     The  four  applications  were  denied,  Ah 


SECT.  III.]  IN   RE   RODRIGUEZ.  435 

Yup  being  a  native  of  China,  Camille  a  native  of  British  Columbia, 
and  of  half  Indian  and  half  white  blood,  Nian  a  native  of  the  Ha- 
waiian Islands,  whose  ancestors  were  Kanakas,  and  Saito  a  native 
of  Japan.  When  the  case  of  Ah  Yup  was  decided,  the  Chinese  ques- 
tion was  flagrant  on  the  Pacific  slope,  and  Judge  Sawyer  seemed  to 
think,  predicating  his  conclusion  upon  the  debates  in  Congress,  that 
the  purpose  of  the  amendment  extending  the  right  of  naturalization 
to  Africans  and  persons  of  African  descent  was  to  exclude  Chinese 
from  the  benefits  of  naturalization.     To  quote  his  own  language :  — 

"  Many  other  senators  spoke  pro  and  con  on  the  question,  this  being 
the  point  of  the  contest,  and  these  extracts  being  fair  examples  of 
tlie  opposing  opinions.  ...  It  was  finally  defeated  [the  amendment 
to  strike  the  word  *  white'  from  the  naturalization  laws];  and  the 
amendment  cited,  extending  the  right  of  naturalization  to  the  African 
only,  was  adopted.  It  is  clear  from  these  proceedings  that  Congress 
retained  the  word  '  white '  in  the  naturalization  laws  for  the  sole  pur- 
pose of  excluding  the  Chinese  from  the  right  of  naturalization.  .  .  . 
Thus,  whatever  latitudinarian  construction  might  otherwise  have 
been  given  to  the  term  '  white  person,'  it  is  entirely  clear  that  Congress 
intended  by  this  legislation  to  exclude  Mongolians  from  the  right  of 
naturalization.  I  am  therefore  of  the  opinion  that  a  native  of  China, 
of  the  Mongolian  race,  is  not  a  white  person,  within  the  meaning  of 
the  act  of  Congress.  The  second  question  is  answered  in  the  discus- 
sion of  the  first.  The  amendment  is  intended  to  limit  the  operation 
of  the  provision  as  it  then  stood  in  the  Revised  Statutes.  It  would 
have  been  more  appropriately  inserted  in  section  2165  than  where  it 
is  found,  in  section  21G9.  But  the  purpose  is  clear.  It  was  certainly 
intended  to  have  some  operation,  or  it  would  not  have  been  adopted. 
The  purpose  undoubtedly  was  to  restore  the  law  to  the  condition  in 
which  it  stood  before  the  revision,  and  to  exclude  the  Chinese.  It 
was  intended  to  exclude  some  classes,  and,  as  all  white  aliens  and 
those  of  the  African  race  are  entitled  to  naturalization  under  other 
words,  it  is  difficult  to  perceive  whom  it  could  exclude,  unless  it  be 
the  Chinese." 

The  opinion  of  Judge  Sawyer  is  by  no  means  decisive  of  the  present 
question,  as  his  language  may  well  convey  the  meaning  that  the 
amendment  of  the  natui-alization  statutes  referred  to  by  him  was  in- 
tended solely  as  a  prohibition  against  the  naturalization  of  members 
of  the  Mongolian  race.  The  naturalization  of  Chinese  is,  however, 
no  longer  an  open  question,  as  section  14  of  the  act  of  IMay  6,  1882, 
expressly  provides  "that  hereafter  no  State  court  or  court  of  the 
United  States  shall  admit  Chinese  to  citizenship;  and  all  laws  in  con- 
flict with  this  act  are  hereby  repealed."     22  Stat.  61. 

If  Chinese  were  denied  the  right  to  become  naturalized  citizens  un- 
der laws  existing  when  In  re  Ah  Yup  was  decided,  why  did  Congress 
subsequently  enact  the  prohibitory  statute  above  quoted?  Indeed, 
it  is  a  debatable  question  whether  the  term  "  free  white  person,"  as 


136  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

used  in  the  original  act  of  1790,  was  not  employed  for  the  sole  pur- 
pose of  withholding  the  right  of  citizenship  from  the  black  or  African 
race  and  the  Indians  then  inhabiting  this  country.  But  it  is  not  nec- 
essary to  enter  upon  a  discussion  of  that  question;  nor  is  it  deemed 
material  to  inquire  to  what  race  ethnological  writers  would  assign 
the  present  applicant.  If  the  strict  scientific  classification  of  the 
anthropologist  should  be  adopted,  he  would  probably  not  be  classed 
as  white.  It  is  certain  he  is  not  an  African,  nor  a  person  of  African 
descent.  According  to  his  own  statement,  he  is  a  "pure-blooded  INIex- 
ican,"  bearing  no  relation  to  the  Aztecs  or  original  races  of  Mexico. 
Being,  then,  a  citizen  of  Mexico,  may  he  be  naturalized  pursuant  to 
the  laws  of  Congress  ?  If  debarred  by  the  strict  letter  of  the  law  from 
receiving  letters  of  citizenship,  is  he  embraced  within  the  intent  and 
meaning  of  the  statute  ?  If  he  falls  within  the  meaning  and  intent  of 
the  law,  his  application  should  be  granted,  notwithstanding  the  letter 
of  the  statute  may  be  against  him. 

[Various  treaties  and  other  public  acts  of  the  United  States  are 
referred  to,  bearing  upon  citizenship  of  persons  residing  in  the  terri- 
tory acquired  by  the  United  States  from  Mexico.] 

When  all  the  foregoing  laws,  treaties,  and  constitutional  provisions 
are  considered,  which  either  affirmatively  confer  the  rights  of  citi- 
zenship upon  Mexicans,  or  tacitly  recognize  in  them  the  right  of  in- 
dividual naturalization,  the  conclusion  forces  itself  upon  the  mind 
that  citizens  of  Mexico  are  eligible  to  American  citizenship,  and 
may  be  individually  naturalized  by  complying  with  the  provisions  of 
our  laws. 


Section  IV.  —  Bankruptcy. 


BALDWIN  V.   HALE. 
1  Wallace,  223.     1863. 

[This  was  an  action  brought  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Massachusetts,  by  Hale  against  Baldwin,  on 
a  promissory  note. 

Baldwin  executed  at  Boston  in  the  State  of  Massachusetts  his 
promissory  note  for  two  thousand  dollars,  payable  there  to  his  own 
order,  and  subsequently  indorsed  such  note  to  Hale.  Subsequently 
Baldwin  had  a  certificate  of  discharge  in  a  proceeding  in  the  Court  of 


SECT.  IV.]  BALDWIN    V.    HALE.  437 

Insolvency  of  the  State  of  Massachusetts,  which  certificate  embraced 
by  its  terms  all  contracts  to  be  performed  within  the  State  of  Massa- 
chusetts ;  but  in  this  insolvency  proceeding  Hale  did  not  prove  his 
debt  nor  take  any  part. 

At  the  time  of  the  execution  of  the  note,  and  also  at  the  commence- 
ment of  this  suit,  Hale  was  a  citizen  of  the  State  of  Vermont,  and 
Baldwin  was  a  citizen  of  the  State  of  Massachusetts. 

Baldwin  relied  on  the  certificate  of  discharge  in  the  insolvency  pro- 
ceeding as  a  bar  to  the  action,  but  the  court  below  did  not  sustain 
this  contention  and  rendered  judgment  against  him.  Whereupon  he 
brought  the  case  to  this  court  by  writ  of  error  to  have  a  determina- 
tion by  this  court  of  the  correctness  of  the  ruling  of  the  lower  court 
as  to  the  effect  of  this  discharge  upon  the  indebtedness  to  Hale.] 

Mr.  Justice  Clifford,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

Contract  was  made  in  Boston,  and  was  to  be  performed  at  the  place 
where  it  was  made,  and  upon  that  ground  it  is  contended  by  the  de- 
fendant that  the  certificate  of  discharge  is  a  complete  bar  to  the 
action.  But  the  case  shows  that  the  plaintiff  was  a  citizen  of  Ver- 
mont, and  inasmuch  as  he  did  not  prove  his  debt  against  the  defend- 
ant's-estate  in  insolvency,  nor  in  any  manner  become  a  party  to  those 
proceedings,  he  insists  that  the  certificate  of  discharge  is  a  matter 
inter  alios,  and  wholly  insufficient  to  support  the  defence. 

Adopting  the  views  of  the  court  in  Scribner  et  al,  v.  Fisher,  2  Gray, 
43,  the  defendant  concedes  that  the  law  is  so,  as  between  citizens  of 
different  States,  except  in  cases  where  it  appears  by  the  terms  of  the 
contract  that  it  was  made  and  must  be  performed  in  the  State  enact- 
ing such  insolvent  law.  Where  the  contract  was  made  and  is  by  its 
terms  to  be  performed  in  the  State  in  which  the  certificate  of  dis- 
charge was  obtained,  the  argument  is,  that  the  discharge  is  entirely 
consistent  with  the  contract,  and  that  the  certificate  operates  as  a 
bar  to  the  right  of  recovery  everywhere,  irrespective  of  the  citizen- 
ship of  the  promisee.  Plaintiff  admits  that  a  majority  of  the 
Supreme  Court  of  Massachusetts,  in  the  case  referred  to,  attempted 
to  maintain  that  distinction,  but  he  insists  that  it  is  without  any 
foundation  in  principle,  and  that  the  decisions  of  this  court  in  an- 
alogous cases  are  directly  the  other  way. 

Controversies  involving  the  constitutional  effect  and  operation  of 
State  insolvent  laws  have  frequently  been  under  consideration  in  this 
court,  and  unless  it  be  claimed  that  constitutional  questions  must 
always  remain  open,  it  must  be  conceded,  we  think,  that  there  are 
some  things  connected  with  the  general  subject  that  ought  to  be 
regarded  as  settled  and  forever  closed. 

State  legislatures  have  authority  to  pass  a  bankrupt  or  insolvent 
law,  provided  there  be  no  act  of  Congress  in  force  establishing  a 
uniform  system  of  bankruptcy,  conflicting  with  such  law ;  and,  i)ro- 
vided  the  law  itself  be  so  framed,  that  it  does  not  impair  the  obliga- 


438  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tion  of  contracts.  Such  was  the  decision  of  this  court  in  Sturges  v. 
Crowninshiekl,  4  Wheat.  122,  and  tlie  authority  of  that  decision  has 
never  been  successfully  questioned.  Suit  was  brought  in  that  case 
against  the  defendant  as  the  maker  of  two  promissory  notes.  They 
were  both  dated  at  New  York,  on  the  22d  day  of  March,  1811, 
and  the  defendant  pleaded  his  discharge  under  an  act  for  the  bene- 
fit of  insolvent  debtors  and  their  creditors,  passed  by  the  legislature 
of  New  York  subsequently  to  the  date  of  the  notes  in  controversy. 
Contracts  in  that  case,  it  will  be  observed,  were  made  prior  to  the 
passage  of  the  law,  and  the  court  held,  for  that  reason,  that  the  law, 
or  that  feature  of  it,  was  unconstitutional  and  void,  as  impairing  the 
obligation  of  contracts  witiiin  the  meaning  of  the  Constitution  of  the 
United  States.  Suggestion  is  made  that  the  ruling  of  the  court  in 
the  case  of  McMillan  v.  McNeill,  4  Wheat.  209,  decided  at  the  same 
term,  asserts  a  different  doctrine,  but  we  think  not,  if  the  facts  of  the 
case  are  properly  understood. 

Kecurring  to  the  statement  of  the  case,  it  appears  that  the  contract 
was  made  in  Charleston,  in  the  State  of  South  Carolina,  and  it  is  true 
that  both  parties  resided  there  at  the  time  the  contract  was  made, 
but  the  defendant  subsequently  removed  to  New  Orleans,  in  the 
State  of  Louisiana,  and  it  was  in  the  latter  State  where  he  obtained 
the  certificate  of  discharge  from  his  debts.  He  was  also  one  of  a 
firm  doing  business  in  Liverpool,  and  a  commission  of  bankruptcy 
had  been  issued  there,  both  against  him  and  his  partner,  and  they 
respectively  obtained  certificates  of  discharge.  Suit  was  brought  in 
the  District  Court  for  the  District  of  Louisiana,  and  the  defendant 
pleaded  those  certificates  of  discharge  in  bar  of  the  action,  and  the 
plaintiff  demurred  to  the  plea.  Under  that  state  of  the  case  and  of 
the  pleadings,  the  court  held  that  the  certificate  of  discharge  obtained 
in  the  State  of  Louisiana  was  no  defence  to  the  suit,  and  very 
properly  remarked  that  the  circumstance  that  the  State  law  was 
passed  before  the  debt  was  contracted  made  no  difference  in  the 
application  of  the  principle.  Bearing  in  mind  that  the  plaintiff  was 
a  citizen  of  South  Carolina,  and  that  the  contract  was  made  there,  it 
is  obvious  that  the  remark  of  the  court  is  entirely  consistent  with 
the  decision  in  the  former  case. 

Secondly,  the  court  also  held  that  a  discharge  under  a  foreign  bank- 
rupt law  was  no  bar  to  an  action  in  the  courts  of  the  United  States, 
on  a  contract  made  in  this  country.  Speaking  of  that  case,  Mr. 
Justice  Johnson  afterwards  remarked  that  it  decided  nothing  more 
than  that  insolvent  laws  have  no  extra-territorial  operation  upon  the 
contracts  of  other  States,  and  that  the  anterior  or  posterior  character 
of  the  law  with  reference  to  the  date  of  the  contract  makes  no  differ- 
ence in  the  application  of  that  principle.  Eight  years  later  the  ques- 
tion, in  all  its  phases,  was  again  presented  to  this  court,  in  the  case 
of  Ogden  v.  Saunders,  12  Wheat.  213,  and  was  very  fully  examinod. 
Three  principal  points  were  ruled  by  the  court.     First,  the  court 


SECT.  IV.]  BALDWIN   V.    HALE.  439 

held  that  the  power  of  Congress  to  establish  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the  United  States  did  not  exclude 
the  right  of  the  States  to  legislate  on  the  same  subject,  except  wheu 
the  power  had  actually  been  exercised  by  Congress,  and  the  State 
laws  conflicted  with  those  of  Congress.  Secondly,  that  a  bankrupt 
or  insolvent  law  of  any  State  which  discharges  both  the  person  of  the 
debtor  and  his  future  acquisitions  of  property,  was  not  a  law  impair- 
ing the  obligation  of  contracts  so  far  as  respects  debts  contracted  sub- 
sequent to  the  passage  of  such  law.  Thirdly,  but  that  a  certificate  of 
discharge  under  such  a  law  cannot  be  pleaded  in  bar  of  an  action 
brought  by  a  citizen  of  another  State  in  the  courts  of  the  United 
States,  or  of  any  other  State  than  that  where  the  discharge  was  ob- 
tained. Much  diversity  of  opinion,  it  must  be  admitted,  existed 
among  the  members  of  the  court  on  that  occasion,  but  it  is  clear  that 
the  conclusions  to  which  the  majority  came  were  in  precise  accord- 
ance with  what  had  been  substantially  determined  in  the  two  earlier 
cases  to  which  reference  has  been  made.  Misapprehension  existed, 
it  seems,  for  a  time,  whether  the  second  opinion  delivered  by  Mr. 
Justice  Johnson  in  that  case  was,  in  point  of  fact,  the  opinion  of  a 
majority  of  the  court,  but  it  is  difficult  to  see  any  ground  for  any 
such  doubt.  Referring  to  the  opinion,  it  will  be  seen  that  he  states 
explicitly  that  he  is  instructed  to  dispose  of  the  cause,  and  he  goes 
on  to  explain  that  the  majority  on  the  occasion  is  not  the  same  as 
that  which  determined  the  general  question  previously  considered. 
Ample  authority  exists  for  regarding  that  opinion  as  the  opinion  of 
the  court,  independently  of  what  appears  in  the  published  report  of 
the  case.  When  the  subsequent  case  of  Boyle  v.  Zacharie  et  al.,  6 
Pet.  348,  was  first  called  for  argument,  inquiry  was  made  of  the  court 
whether  the  opinion  in  question  was  adopted  by  the  other  judges 
who  concurred  in  the  judgment  of  the  court.  To  which  Marshall, 
C.  J.,  replied,  that  the  judges  who  were  in  the  minority  of  the  court 
upon  the  general  question  concurred  in  that  opinion,  and  that  what- 
ever principles  were  established  in  that  opinion  were  to  be  considered 
no  longer  open  for  controversy,  but  the  settled  law  of  the  court. 
Judge  Story  delivered  the  unanimous  opinion  of  the  court  in  that 
case  during  the  same  session,  and  in  the  course  of  the  opinion  he  re- 
peated the  explanations  previously  given  by  the  Chief  Justice.  Boyle 
V.  Zacharie  et  al.,  6  Pet.  643.  Explanations  to  the  same  effect  were 
also  made  by  the  present  Chief  Justice  in  the  case  of  Cook  v.  IMoffat 
et  al.,  5  How.  310,  which  had  been  ruled  by  him  at  the  circuit.  He 
had  ruled  the  case  in  the  court  below,  in  obedience  to  what  he  under- 
stood to  be  the  settled  doctrine  of  the  court,  and  a  majority  of  the 
court  affirmed  the  judgment.  Acquiescing  in  that  judgment  as  a 
correct  exposition  of  the  law  of  tho  court,  he  nevertheless  thought  it 
proper  to  restate  the  individual  opinion  which  he  entertained  upon 
the  subject,  but  before  doing  so,  he  gave  a  clear  and  satisfactory  ex- 
position of  what  had  previously  been  decided  by  the  court.     Those 


440  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

remarks  confirm  what  had  at  a  much  earlier  period  been  fully  ex- 
plained by  tlie  former  Chief  Justice  and  his  learned  associate. 
Taken  together,  these  several  explanations  ought  to  be  regarded  as 
final  and  conclusive.  Assuming  that  to  be  so,  then,  it  was  settled  by 
this  court  in  that  case,  —  1.  That  the  power  given  to  the  United  States 
to  pass  bankrupt  laws  is  not  exclusive.  2.  That  the  fair  and  ordinary 
exercise  of  that  power  by  the  States  does  not  necessarily  involve  a 
violation  of  the  obligation  of  contracts,  multo  fortiori  of  posterior 
contracts.  3.  But  when  in  the  exercise  of  that  power  the  States 
pass  beyond  their  own  limits  and  the  rights  of  their  own  citizens, 
and  act  upon  the  rights  of  citizens  of  other  States,  there  arises  a 
conflict  of  sovereign  power  and  a  collision  wnth  the  judicial  powers 
granted  to  the  United  States,  which  renders  the  exercise  of  such  a 
power  incompatible  with  the  rights  of  other  States,  and  with  the 
Constitution  of  the  United  States.  Saunders,  a  citizen  of  Kentucky, 
brought  suit  in  that  case  against  Ogden,  who  was  a  citizen  of  Louisi- 
ana at  the  time  the  suit  was  brought.  Plaintiff  declared  upon  cer- 
tain bills  of  exchange  drawn  by  one  Jordan,  at  Lexington,  in  the 
State  of  Kentucky,  upon  Ogden,  the  defendant,  in  the  city  of  New 
York,  where  he  then  resided.  He  was  then  a  citizen  of  the  State  of 
New  York,  and  the  case  shows  that  he  accepted  the  bills  of  exchange 
at  the  city  of  New  York,  and  that  they  were  subsequently  protested 
for  non-payment. 

Defendant  pleaded  his  discharge  under  the  insolvent  law  of  New 
York,  passed  prior  to  the  date  of  the  contract.  Evidently,  therefore, 
the  question  presented  was,  whether  a  discharge  of  a  debtor  under 
a  State  insolvent  law  was  valid  as  against  a  creditor  or  citizen  of 
another  State,  who  had  not  subjected  himself  to  the  State  laws  other- 
wise than  b}^  the  origin  of  the  contract,  and  the  decision  in  express 
terms  was,  that  such  a  proceeding  was  "  incompetent  to  discharge  a 
debt  due  a  citizen  of  another  State."  Whenever  the  question  has 
been  presented  to  this  court  since  that  opinion  was  pronounced,  the 
answer  has  uniformly  been  that  the  question  depended  upon  citizen- 
ship. Such  were  the  views  of  the  court  in  Suydam  et  al.  v.  Broadnax 
et  al.,  14  Pet.  75,  where  it  was  expressly  held  that  a  certificate  of 
discharge  cannot  be  pleaded  in  bar  of  an  action  brought  by  a  citizen 
of  another  State  in  the  courts  of  the  United  States,  or  of  any  other 
State  than  that  where  the  discharge  was  obtained.  Undoubtedly  a 
State  may  pass  a  bankrupt  or  insolvent  law  under  the  conditions 
before  mentioned,  and  such  a  law  is  operative  and  binding  upon  the 
citizens  of  the  State,  but  we  repeat  what  the  court  said  in  Cook  v. 
Moffat  et  al.,  5  How.  308,  that  such  laws  "  can  have  no  effect  on  con- 
tracts made  before  their  enactment,  or  beyond  their  territory." 
Judge  Story  says,  in  the  case  of  Springer  v.  Foster  et  al.,  2  Story, 
C.  C.  387,  that  the  settled  doctrine  of  the  Supreme  Court  is,  that  no 
State  insolvent  laws  can  discharge  the  obligation  of  any  contract 
made  in  the  State,  except  such  contracts  as  are  made  between  citi- 


SECT.  IV.]  BALDWIN   V.    HALE.  441 

zens  of  that  State.  He  refers  to  the  case  of  Ogden  v.  Saunders  to 
support  the  proposition,  and  remarks,  without  qualification,  that  the 
doctrine  of  that  case  was  subsequently  atfirmed  in  Boyle  v.  Zacharie, 
where  there  was  no  division  of  opinion.  In  the  last-mentioned  case 
he  gave  the  opinion  of  the  court,  and  he  there  expressed  substantially 
the  same  views.  Confirmation  of  the  fact  that  such  was  his  opinion 
may  be  found  both  in  his  Commentaries  on  the  Constitution  and  in 
his  treatise  entitled  Conflict  of  Laws.  His  view  as  to  the  result  of 
the  various  decisions  of  this  court  is,  that  they  establish  the  follow- 
ing propositions:  1.  That  State  insolvent  laws  may  apply  to  all  con- 
tracts within  the  State  between  citizens  of  the  State.  2.  That  they 
do  not  apply  to  contracts  made  within  the  State  between  a  citizen  of 
the  State  and  a  citizen  of  another  State.  3.  That  they  do  not  apply 
to  contracts  not  made  within  the  State  :  2  Story  on  Const.,  sec.  1390 
(3d  edition),  p.  281 ;  Story  on  Confl.  L.,  sec.  341,  p.  573. 

Chancellor  Kent  also  says  that  the  discharge  under  a  State  law  is 
not  effectual  as  against  a  citizen  of  another  State  who  did  not  make 
himself  a  party  to  the  proceedings  under  the  law.  2  Kent  Com.  (9th 
ed.),  p.  503.  All  of  the  State  courts,  or  nearly  all,  except  the  Su- 
preme Court  of  Massachusetts,  have  adopted  the  same  view  of  the 
subject,  and  that  court  has  recently  held  that  a  certificate  of  dis- 
charge in  insolvency  is  no  bar  to  an  action  by  a  foreign  corporation 
against  the  payee  of  a  note,  who  indorsed  it  to  the  corporation  in 
blank  before  its  maturity,  although  the  note  itself  was  executed  and 
made  payable  iu  that  State  by  a  citizen  of  the  State.  Repeated  de- 
cisions have  been  made  in  that  court,  which  seem  to  support  the 
same  doctrine.  Savoye  v.  Marsh,  10  Met.  594  ;  Braynard  v.  Marshall, 
8  Pick.  196.  But  a  majority  of  the  court  held,  in  Scribner  et  al.  v. 
Fisher,  2  Gray,  43,  that  if  the  contract  was  to  be  performed  in  the 
State  vvhere  the  discharge  was  obtained,  it  was  a  good  defence 
to  an  action  on  the  contract,  although  the  plaintiff  was  a  citizen 
of  another  State  and  had  not  in  any  manner  become  a  party  to  the' 
proceedings.  Irrespective  of  authority  it  would  be  difficult  if  not 
impossible  to  sanction  that  doctrine.  Insolvent  systems  of  every 
kind  partake  of  the  character  of  a  judicial  investigation.  Parties 
whose  rights  are  to  be  affected  are  entitled  to  be  heard;  and  in  order 
that  they  may  enjoy  that  right  they  must  first  be  notified.  Common 
justice  requires  that  no  man  shall  be  condemned  in  his  person  or 
property  without  notice  and  an  opportunity  to  make  his  defence. 
Nations  et  al.  v.  Johnson  et  al.,  24  How.  203;  Boswell's  -Lessee  v. 
Otis  et  al.,  9  How.  350 ;  Oakley  i>.  Aspinwall,  4  Comst.  514. 

Regarded  merely  in  the  light  of  principle,  therefore,  the  rule  is 
one  which  could  hardly  be  defended,  as  it  is  quite  evident  that  the 
courts  of  one  State  would  have  no  power  to  require  the  citizens  of 
other  States  to  become  parties  to  any  such  proceeding.  Suydam 
et  al.  V.  Broadnax  et  al.,  14  Pet.  75.  But  it  is  unnecessary  to  pursue 
the  inquiry,  as  the  decisions  of  this  court  are  directly  the  other  way  ; 


442  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

and  so  are  most  of  the  decisions  of  the  State  courts.  Donnelly  v. 
Corbett,  3  Seld.  500;  Foe  v.  Duck,  5  Md.  1 ;  Anderson  v.  Wheeler, 
25  Conn.  607;  Felch  v.  Bac,bee  ef  al.,  48  Me.  9;  Denierrit  v.  Ex- 
change Bank,  10  Law  Rep.  x.  s.  GOO;  Woodhull  v.  Wagner,  Bald. 
C.  C.  300. 

Insolvent  laws  of  one  State  cannot  discharge  the  contracts  of  citi- 
zens of  other  States,  because  they  have  no  extra-territorial  operation, 
and  consequently  the  tribunal  sitting  under  them,  unless  in  cases 
where  a  citizen  of  such  other  State  voluntarily  becomes  a  party  to 
the  proceeding,  has  no  jurisdiction  in  the  case.  Legal  notice  cannot 
be  given,  and  consequently  there  can  be  no  obligation  to  appear,  and 
of  course  there  can  be  no  legal  default.  The  judgment  of  the  Circuit 
Court  is  therefore  affirmed  with  costs. 

Judgment  accordingly. 


Section  V.  —  The  Currency. 


7^ 


LEGAL   TENDER   CASE. 


V  /,   -  JUILLIARD   V.    GREEXMAN. 


T 


110  United  States,  421.     1884. 

Juilliard,  a  citizen  of  New  York,  brought  an  action  against 
Green  man,  a  citizen  of  Connecticut,  in  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  alleging 
that  the  plaintiff  sold  and  delivered  to  the  defendant,  at  his  special 
instance  and  request,  onje  humiredjjales  of  cotton,  of  the  value  and 
\for  the  agreed  price  of  8o,122.90;  and  that  the  defendant  agreed  to 
pay  that  sum  in  cash  on  the  delivery  of  the  cotton,  and  had  not  paid 
the  same  or  any  part  thereof,  except  that  he  had  paid  the  sum  of 
$22.90  on  account,  and  was  now  justly  indebted  to  the  plaintiff 
therefor  in  the  sum  of  85,100;  and  demanding  judgment  for  this 
sum  with  interest  and  costs. 

The  defendant  in  his  answer  admitted  the  citizenship  of  the  parties, 
the  purchase  and  delivery  of  the  cotton,  and  the  agreement  to  pay 
therefor,  as  alleged  ;  and  averred  that,  after  the  delivery  of  the 
cotton,  he  offered  and  tendered  to  the  plaintiff,  in  full  payment, 
S22.50  in  gold  coin  of  the  United  States,  forty  cents  in  silver  coin 
of  the  United  States,  and  two  United  States  notes,  one  of  the  denom- 
ination of  $5,000,  and  the  other  of  the  denomination  of  SlOO,  of  the 
description  known  as_JInite4_StatesJegad^  purporting 

by  recital  thereon  to  be  legal  tender,  at  t^ir  respective  face  values, 
for  all  debts,  public  and  private,  except  duties  on  imports  and  inter- 


SECT,  v.]  LEGAL  TENDER  CASE.  443 

est  on  the  public  debt,  and  which,  after  having  been  presented  for 
payment,  and  redeemed  and  paid  in  gold  coin,  since  January  1st, 
1879,  at  the  United  States  sub-treasury  in  Xew  York,  had  been 
reissued  and  kept  in  circulation  under  and  in  pursuance  of  the  act 
of  Congress  of  May  31st,  1878,  ch.  146 ;  that  at  the  time  of  offering 
and  tendering  these  notes  and  coin  to  the  plaintiff,  the  sum  of 
So,  122.90  was  the  entire  amount  due  and  owing  in  payment  for  the 
cotton,  but  the  plaintiff  declined  to  receive  the  notes  in  paj'^ment  of 
S5,100  thereof;  and  that  the  defendant  had  ever  since  remained,  and 
still  was,  ready  and  willing  to  pay  to  the  plaintiff  the  sum  of  S5,100 
in  these  notes,  and  brought  these  notes  into  court,  ready  to  be  paid 
to  the  plaintiff,  if  he  would  accept  them. 

The  plaintiff  demurred  to  the  answer,  upon  the  grounds  that  the 
defence,  consisting  of  new  matter,  was  insufficient  in  law  upon  its 
face,  and  that  the  facts  stated  in  the  answer  did  not  constitute 
any  defence  to  the  cause  of  action  alleged. 

The  Circuit  Court  overruled  the  demurrer  and  gave  judgment  for 
the  defendant,  and  the  plaintiff  sued  out  this  writ  of  error. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  amount  which  the  plaintiff  seeks  to  recover,  and  which,  if  the 
tender- pleaded  is  sufficient  in  law,  he  is  entitled  to  recover,  is  So, 100, 
There  can,  therefore,  be  no  doubt  of  the  jurisdiction  of  this  court  to 
revise  the  judgment  of  the  Circuit  Court.  Act  of  February  16th, 
1875,  ch.  77,  §  3 ;  18  Stat.  315. 

The  notes  of  the  United  States,  tendered  in  payment  of  the  defend- 
ant's debt  to  the  plaintiff,  were  originally  issued  under  the  acts  of 
Congress  of  February  25th,  1862,  ch.  33,  July  11th,  1862.  ch.  142, 
and  March  3d,  1863,  ch.  73,  passed  during  the  War  of  the  Kebellion, 
and  enacting  that  these  notes  should  "  be  lawful  money  and  a  legal 
tender  in  payment  of  all  debts,  public  and  private,  within  the  United 
States,'-  -except  for  duties  on  imports  and  interest  on  the  public  debt. 
12  Stat.  345,  532,  709. 

The  provisions  of  the  earlier  acts  of  Congress,  so  far  as  it  is  neces- 
sary, for  the  understanding  of  the  recent  statutes,  to  quote  them,  are 
re-enacted  in  the  following  provisions  of  the  Revised  Statutes :  — 

"  Skct.  3579.  When  any  Unitpcl  States  notes  are  returned  to  the  Treasury, 
they  may  be  reissued,  from  time  to  time,  as  the  exigencies  of  the  public  inter- 
est may  require. 

"  Sect.  3580.  When  any  United  States  notes  returned  to  the  Tieasuiy 
are  so  mutilated  or  otherwise  injured  as  to  be  unfit  for  use,  the  Secretary  of 
the  Treasury  is  authorized  to  replace  the  same  with  others  of  the  same  char- 
acter and  amounts. 

'•  Sect.  3581.  Mutilated  United  States  notes,  when  replaced  according  to 
law,  and  all  other  notes  which  by  law  are  required  to  be  taken  up  and  not 
reis,«u('fl,  when  taken  up  shall  be  destroyed  in  such  manner  and  under  such 
regulations  as  the  Secretary  of  the  Treasury  may  prescribe. 

"  Spxt.  3582.  The  authority  given  to  the  Secretary  of  the  Treasury  to 
make  any  reduction  of  the  currency,  by  retiring  and  cancelling  United  States 
notes,  is  suspended." 


44-4  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

/  "  Sect.  3588.  United  States  notes  shall  be  lawful  money  and  a  legal 
/tender  in  payment  of  all  debts,  public  and  private,  within  the  United  States, 
/  except  for  duties  on  imports  and  interest  on  the  public  debt." 

The  act  of  January  14th,  1875,  ch.  15,  "to  provide  for  the  re- 
sumption of  specie  payments,"  enacted  that  on  and  after  January  1st, 
1879,  '•  the  Secretary  of  the  Treasury  shall  redeem  in  coin  the  United 
States  legal  tender  notes  then  outstanding,  on  their  presentation  for 
redemption  at  the  office  of  the  Assistant  Treasurer  of  the  United 
States  in  the  City  of  New  York,  in  sums  of  not  less  than  fifty  dol- 
lars," and  authorized  him  to  use  for  that  purpose  any  surplus  revenues 
in  the  Treasury  and  the  proceeds  of  the  sales  of  certain  bonds  of  the 
United  States.     18  Stat.  296. 

The  act  of  May  31st,  1878,  ch.  146,  under  which  the  notes  in  ques- 
tion were  reissued,  is  entitled  "  An  Act  to  forbid  the  further  retire- 
ment of  United  States  legal  tender  notes,"  and  enacts  as  follows  :  — 

"  From  and  after  the  passage  of  this  act  it  shall  not  be  lawful  for  the  Sec- 
retary of  the  Treasury  or  other  oflBcer  under  him  to  cancel  or  retire  any  more 
of  the  United  States  legal  tender  notes.  And  when  any  of  said  notes  may  be 
redeemed  or  be  received  into  the  Treasury  under  any  law  from  any  source 
•whatever  and  shall  belong  to  the  United  States,  they  shall  not  be  retired, 
cancelled,  or  destroyed,  but  they  shall  be  reissued  and  paid  out  again  and  kept 
in  circulation:  Provided,  That  nothing  herein  shall  prohibit  the  cancellation 
and  destruction  of  mutilated  notes  and  the  issue  of  other  notes  of  like  denom- 
ination in  their  stead,  as  now  provided  by  law.  All  acts  and  parts  of  acts 
in  conflict  herewith  are  hereby  repealed."     20  Stat.  87. 

The  manifest  intention  of  this  act  is  that  the  notes  which  it  directs, 
after  having  been  redeemed,  to  be  reissued  and  kept  in  circulation, 
shall  retain  their  original  quality  of  being  a  legal  tender. 

The  single  question,  therefore,  to  be  considered,  and  upon  the 
\  answer  to  which  the  judgment  to  be  rendered  between  these  parties 
depends,  is  whether  notes  of  the  United  States,  issued  in  time  of 
war,  under  acts  of  Congress,  declaring  them  to  be  a  legal  tender  in 
payment  of  private  debts,  and  afterwards  in  time  of  peace  redeemed 
and  paid  in  gold  coin  at  the  Treasury,  and  then  reissued  under  the  act 
of  1878,  can,  under  the  Constitution  of  the  United  States,  be  a  legal 
tender  in  payment  of  such  debts. 

Upon  full  consideration  of  the  case,  the  court  is  unanimously  of 
opinion  that  it  cannot  be  distinguished  in  principle  from  the  cases 
heretofore  determined,  reported  under  the  names  of  the  Legal  Tender 
Cases,  12  Wall.  457  ;  Dooley  v.  Smith,  13  Wall.  604;  Railroad  Com- 
pany V.  Johnson,  15  Wall.  195 ;  and  Maryland  i\  Railroad  Company. 
22  Wall.  105;  and  all  the  judges,  except  Mr.  Justice  Field,  who 
adheres  to  the  views  expressed  in  his  dissenting  opinions  in  those 
cases,  are  of  opinion  that  they  were  rightly  decided. 

The  elaborate  printed  briefs  submitted  by  counsel  in  this  case,  and 
the  opinions  delivered  in  the  Legal  Tender  Cases,  and  in  the  earlier 
case  of  Hepburn  v.  Griswold,  8  Wall.  603,  which  those  cases  over- 


SECT,  v.]  LEGAL   TENDER   CASE.  445 

ruled,  forcibly  present  the  arguments  on  either  side  of  the  question 
of  the  power  of  Congress  to  make  the  notes  of  the  United  States  a 
legal  tender  in  payment  of  private  debts.  Without  undertaking  to 
deal  with  all  those  arguments,  the  court  has  thought  it  fit  that  the 
grounds  of  its  judgment  in  the  case  at  bar  should  be  fully  stated. 

No  question  of  the  scope  and  extent  of  the  implied  powers  of  Con- 
gress under  the  Constitution  can  be  satisfactorily  discussed  without 
repeating  much  of  the  reasoning  of  Chief  Justice  Marshall  in  the 
great  judgment  in  McCulloch  v.  Maryland,  4  Wheat.  316,  by  which 
the  power  of  Congress  to  incorporate  a  bank  was  demonstrated  and 
affirmed,  notwithstanding  the  Constitution  does  not  enumerate, 
among  the  powers  granted,  that  of  establishing  a  bank  or  creating 
a  corporation. 

The  people  of  the  United  States  by  the  Constitution  established  a 
national  government,  with  sovereign  powers,  legislative,  executive, 
and  judicial.  *' The  government  of  the  Union,"  said  Chief  Justice  , 
Marshall,  "  though  limited  in  its  powers,  is  supreme  within  its  sphere  ' 
of  action  ;  "  "  and  its  laws,  when  made  in  pursuance  of  the  Constitu- 
tion, form  the  supreme  law  of  the  land."  "  Among  the  enumerated 
powers  of  government,  we  find  the  great  powers  to  lay  and  collect 
taxes^;  to  borrow  money ;  to  regulate  commerce ;  to  declare  and 
conduct  a  war ;  and  to  raise  and  support  armies  and  navies.  The 
sword  and  the  purse,  all  the  external  relations,  and  no  inconsiderable 
portion  of  the  industry  of  the  nation,  are  intrusted  to  its  govern- 
ment."    4  Wheat.  405,  406,  407. 

A  constitution,  establishing  a  frame  of  government,  declaring  fun- 
damental principles,  and  creating  a  national  sovereignty,  and  in-| 
tended  to  endure  for  ages  and  to  be  adapted  to  the  various  crises  of 
human  affairs,  is  not  to  be  interpreted  with  the  strictness  of  a  private 
contract.  The  Constitution  of  the  United  States,  by  apt  words  of 
designation  or  general  description,  marks  the  outlines  of  the  powers 
granted  to  the  national  legislature;  but  it  does  not  undertake,  w-ith 
the_precision  and  detail  of  a  code  of  la\vs,jbo_enumerate  the  subdi- 
visions of  those  powerSj_or_to__specify  all  the  means  by  \vhich'they 
may^be^ car ried  into  execution!  Chief  Justice~^arshall,  after  d^ve^^- 
ing  upon  this  view,  as  required  by  the  very  nature  of  the  Constitution, 
by  the  language  in  which  it  is  framed,  by  the  limitations  upon  the 
general  powers  of  Congress  introduced  in  the  ninth  section  of  the 
first  article,  and  by  the  omission  to  use  any  restrictive  term  which 
might  prevent  its  receiving  a  fair  and  just  interpretation,  added 
these  emphatic  words :  "  In  considering  this  question,  then,  we 
must  never  forget  that  it  is  a  constitution  we  are  expounding." 
4  Wheat.  407.     See  also  page  415. 

The  breadth  and  comprehensiveness  of  the  words  of  the  Constitu- 
tion are  nowhere  more  strikingly  exhibited  than  in  regard  to  the 
powers  over  the  subjects  of  revenue,  finance,  and  currency,  of  which 
there  is  no  other  express  grant  than  may  be  found  in  these  few  brief 
clauses :  — 


446  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

"  The  Congress  shall  have  power 
-y  ''  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  p^y  the  debts  and 
^provide  for  the  common  defence  and  general  welfare  of  the  United  States ; 
but  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the  United 
States  ; 
J  "  To  borrow  money  on  the  credit  of  the  United  States ; 

"  To  regulate  commerce  with  foreign  nations,  and  among  the  several  States, 
aud  with  the  Indian  tribes  ;  " 

"  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures." 

The  section  which  contains  the  grant  of  these  and  other  principal 
legislative  powers  concludes  by  declaring  that  the  Congress  shall 
have  power 

^  "  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
J  execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  Consti- 
1  tutiou  in  the  government  of  the  United  States,  or  in  any  department  or 
I  officer  thereof." 

By  the  settled  construction  and  the  only  reasonable  interpretation 
of  this  clause,  the  words  ''  necessary  and  proper  "  are  not  limited  to 
such  measures  as  are  absolutely  aiid  indispensablylnficifilaiy,  with- 
out which  the  powers  granted  must  fail  of  executioo  ;  jDut__they; 
Juclude  all  appropriate  means  jRJiip.h  are  conducive  orjidapted  to 
tlie  end  tojj^e  accomplishedVan^^which^  Congress 

jtyill  most  advantageously  effect  it. 

That  clause  oFthe  Constitution  which  declares  that  "  the  Congress 
shall  have  the  power  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States,"  either  embodies  a  grant  of 
power  to  pay  the  debts  of  the  United  States,  or  presupposes  and 
assumes  that  power  as  inherent  in  the  United  States  as  a  sover- 
eign government.  But,  in  whichever  aspect  it  be  considered, 
neither  this  nor  any  other  clause  of  the  Constitution  makes  any 
mention  of  priority  or  preference  of  the  United  States  as  a  cred- 
itor over  other  creditors  of  an  individual  debtor.  Yet  this  court,  in 
--  the  earlv  case  of  United  States  v.  Fisher,  2  Cranch,  358,  held  that, 

y-wlXA  under  the  power  to  pay  the  debts  of  the  United  States,  Congress 
X2^Z/  had  the  power  to  enact  that  debts  due  to  the  United  States  should 
-^1  ^^^  have  that  priority  of  payment  out  of  the  estate  of  an  insolvent  debtor, 
^  %5^C>     which  the  law  of  England  gave  to  debts  due  the  Crown. 

In  delivering  judgment  in  that  case.  Chief  Justice  Marshall  ex- 
pounded the  clause  giving  Congress  power  to  make  all  necessary  and 
proper  laws,  as  follows  :  "  In  construing  this  clause,  it  would  be  in- 
correct, and  would  produce  endless  difficulties,  if  the  opinion  should 
be  maintained  that  no  law  was  authorized  which  was  not  indispen- 
sably necessary  to  give  effect  to  a  specified  power.  \Yh£i:a_vaii£us 
systems  might  be  adopted  fo^that  purpose^jt  might Jbe^said^j5dth_ 
-xespect  to  each,  that  it  was  not  necessarv>.  because  the  end  might  be 


SECT.  V.J  LEGAL  TENDER  CASE.  447 

gbtained  brother  means.      Congress_jaust^_possess   the   choice   of. 

means^and  must  be  empowered  Jo  use_ajixJH£2££J^^^^^  ^^^^J^ 
oimiducive  to  tlie  exercise  of^apovver  granted"  by  theJJoujtitutiou. 
J^ie_g£U2£=tmneut  is  to  pay  the  debt  of  the  UiiLon^aiid  mujjt  be^autlTof^ 
ized  to  use  the  means  which  appear  to  itself  the  most  eligible  toeffecf 
_tliat  object?'^   2  C ranch,  396.  ' 

In  McCulloch  v.  Maryland,  he  more  fully  developed  the  same 
view,  concluding  thus :  "  We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits  are  not  to 
be  transcended.  But  we  think  the  sound  construction  of  the  Con- 
stitution must  allow  to  the  national  legislature  that  discretion,  with 
respect  to  the  means  by  which  the  powers  it  confers  are  to  be  car- 
ried into  execution,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it,  in  the  manner  most  beneficial  to  the  people. 
L  Lfit-tlie  end  be  legitimate,  let  it  be  within_the_scopejof  the  Con- 
jtitution,  and  alL^maajiS  which  are  appropriate,  which  are 'plainljrl 
__adapted  to  .that  end,  which  arenoiTprohibited.  but  congist  with  the 
jetter  and  spiiil.of  the  Constitution,  are  constitutional.'^     4  Wheat. 

42ir 

The  rule  of  interpretation  thus  laid  down  has  been  constantly  ad- 
hered to  and  acted  on  b}^  this  court,  and  was  accepted  as  expressing 
the  true  test  by  all  the  judges  who  took  part  in  the  former  discus- 
sions of  the  power  of  Congress  to  make  the  treasury  notes  of  the 
United  States  a  legal  tender  in  payment  of  private  debts. 

The  other  judgments  delivered  by  Chief  Justice  Marshall  contain 
nothing  adverse  to  the  power  of  Congress  to  issue  legal  tender  notes. 

By  the  Articles  of  Confederation   of  1777,  the  United  States  in 
Congress  assembled  were  authorized  "  to  borrow  money  or  emit  bills 
on  the  credit  of  the  United  States  ;  "  but  it  was  declared  that  "  each 
State  retains  its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right    which    is  not  by  this  confederation 
expressly  delegated  to   the   United  States  in  Congress  assembled." 
Art.  2;  art.  9,  §  5;  1   Stat.  4,  7.     Yet,  upon  the  question  whether, 
under  those  articles.  Congress,  by  virtue  of  the  power  to  emit  bills 
on  the  credit  of  the   United   States,  had  the  power  to  make  bills  so 
emitted  a  legal  tender,  Chief  Justice  Marshall  spoke  very  guardedly, 
saying  :  "  Congress  emitted  bills  of  credit  to  a  large  amount,  and  did   ' 
not,   perhaps  could   not,   make   them    a   legal   tender.     This   power  ' 
resided  in  the  States."     Craig  v.  Missouri,  4  Pet.  410,  435.     But  in 
the  Constitution,  as  he  had  before  observed  in  McCulloch  v.  ]Mary- 
land,  "  there  is  no  phrase  which,  like  the  Articles  of  Confederation,  \ 
excludes   incidental    or   implied   powers ;    and  which  requires  that  {      » 
everything  granted  shall  be  expressly  and  minutely  described.     Even        \ 
the  Tenth  Amendment,  which  was  framed  for  the  purpose  of  quiet- 
ing the  excessive  jealousies  which  had  been  excited,  omits  the  word 
'  expressly,'  and  declares  only  that  the  powers  '  not  delegated  to  the 
United  States,  nor  prohibited  to  the  States,  are  reserved  to  the  States 


4-18  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

or  to  the  people ; '  thus  leaving  the  question,  whether  the  par- 
ticular power  which  may  become  the  subject  of  contest  has  been 
dele"-ated  to  the  one  government  or  prohibited  to  the  other,  to  depend 
on  a  fair  construction  of  the  whole  instrument.  The  men  who  drew 
and  adopted  this  amendment  had  experienced  the  embarrassments 
resulting  from  the  insertion  of  this  word  in  the  Articles  of  Confed- 
eration, and  probably  omitted  it  to  avoid  those  embarrassments." 
4  Wheat.  406. 

The  sentence  sometimes  quoted  from  his  opinion  in  Sturges  v. 
Crowninshield  had  exclusive  relation  to  the  restrictions  imposed  by 
the  Constitution  on  the  powers  of  the  States,  and  especial  reference 
to  the  effect  of  the  clause  prohibiting  the  States  from  passing  laws 
impairing  the  obligation  of  contracts,  as  will  clearly  appear  by  quot- 
ing the  whole  paragraph :  "  Was  this  general  prohibition  intended  to 
prevent  paper  money  ?  We  are  not  allowed  to  say  so,  because  it  is 
expressly  provided  that  no  State  shall  '  emit  bills  of  credit;'  neither 
could  these  words  be  intended  to  restrain  the  States  from  enabling 
debtors  to  discharge  their  debts  by  the  tender  of  property  of  no  real 
value  to  the  creditor,  because  for  that  subject  also  particular  provision 
is  made.  Nothing  but  gold  and  silver  coin  can  be  made  a  tender  in 
payment  of  debts."     4  Wheat.  122,  204. 

Such  reports  as  have  come  down  to  us  of  the  debates  in  the  Conven- 
tion that  framed  the  Constitution  afford  no  proof  of  any  general  con- 
currence of  opinion  upon  the  subject  before  us.  The  adoption  of  the 
motion  to  strike  out  the  words  "  and  emit  bills  "  from  the  clause  "to 
borrow  money  and  emit  bills  on  the  credit  of  the  United  States  "  is 
quite  inconclusive.  The  philippic  delivered  before  the  Assembly  of 
Maryland  by  Mr.  Martin,  one  of  the  delegates  from  that  State,  who 
voted  against  the  motion,  and  who  declined  to  sign  the  Constitution, 
can  hardly  be  accepted  as  satisfactory  evidence  of  the  reasons  or  the 
motives  of  the  majority  of  the  Convention.  See  1  Elliot's  Debates, 
345,  370,  376.  Some  of  the  members  of  the  Convention,  indeed, 
as  appears  by  Mr.  Madison's  minutes  of  the  debates,  expressed  the 
strongest  opposition  to  paper  money.  And  Mr.  Madison  has  dis- 
closed the  grounds  of  his  own  action,  by  recording  that  "  this  vote 
in  the  affirmative  by  Virginia  was  occasioned  by  the  acquiescence  of 
Mr.  Madison,  who  became  satisfied  that  striking  out  the  words  would 
not  disable  the  government  from  the  use  of  public  notes,  so  far  as 
they  could  be  safe  and  proper  ;  and  would  only  cut  off  the  pretext 
for  a  paper  currency,  and  particularly  for  making  the  bills  a  tender, 
either  for  public  or  private  debts."  But  he  has  not  explained  why 
/he  thought  that  striking  out  the  words  "  and  emit  bills "  would 
leave  the  power  to  emit  bills,  and  deny  the  power  to  make  them  a 
tender  in  payment  of  debts.  And  it  cannot  be  known  how  many  of 
the  other  delegates,  by  whose  Tote  the  motion  was  adopted,  intended 
neither  to  proclaim  nor  to  deny  the  power  to  emit  paper  money,  and 
were   influenced  by  the  argument  of  Mr.    Gorham,  who   "was  for 


SECT,  v.] 


LEGAL  TENDER   CASE. 


449 


striking  out,  without  inserting  any  prohibition,"  and  who  said  :  "  If 
the  words  stand,  they  may  suggest  and  lead  to  the  emission."  "The 
power,  so  far  as  it  will  be  necessary  or  safe,  will  be  involved  in  that 
of  borrowing."  5  Elliot's  Debates,  434,  435,  and  note.  And  after 
the  first  clause  of  the  tenth  section  of  the  first  article  had  been  re- 
ported in  the  form  in  which  it  now  stands,  forbidding  the  States  to 
make  anything  but  gold  or  silver  coin  a  tender  in  payment  of  debts, 
or  to  pass  any  law  impairing  the  obligation  of  contracts,  when  Mr. 
Gerry,  as  reported  by  Mr.  Madison,  *'  entered  into  observations  in- 
culcating the  importance  of  public  faith,  and  the  propriety  of 
the  restraint  put  on  the  States  from  impairing  the  obligation  of 
contracts,  alleging  that  Congress  ought  to  be  laid  under  the  like  / 
prohibitions,"  and  made  a  motion  to  that  effect,  he  was  not  seconded. 
lb.  546.  As  an  illustration  of  the  danger  of  giving  too  much  weight, 
upon  such  a  question,  to  the  debates  and  the  votes  in  the  Convention, 
it  may  also  be  observed  that  propositions  to  authorize  Congress  to 
grant  charters  of  incorporation  for  national  objects  were  strongly 
opposed,  especially  as  regarded  banks,  and  defeated.  lb.  440,  543, 
544.  The  power  of  Congress  to  emit  bills  of  credit,  as  well  as  to  (/ 
incorporate  national  banks,  is  now  clearly  established  by  decisions  to  I' 
which  we  shall  presently  refer. 

The  words  ^'  to  borrow  money,"  as  used  in  the  Constitution,  to 
designate  a  power  vested  in  the  national  government,  for  the  safety 
and  welfare  of  the  whole  people,  are  not  to  receive  that  limited  and 
restricted,  interpretation  and  meaning  which  they  would  have  in  a 
penal  statute,  or  in  an  authority  conferred,  by  law  or  by  contract, 
upon  trustees  or  agents  for  private  purposes. 

The  power  "  to  borrow  monej^  on  the  credit  of  the  United  States  "  is 
the~power  to  rai^ejnoney  for  the  public  xise^on  apledge""orthe  public 
credit,  and  may  be  exercised  to  meet  either  present  or  anticipated 
'expenses  and  iraT3ilitie£^r~tHe]goverriinent.  It  includes  "the  power 
to  issue,  in  return_jor  the  moneys  borrowed,  the  obligations  of  the   i 


United  States  in  any  appropriate  form^ofstockjaonds,  bills,  or  notes  ;   ■ 
and  in  whateveFfornT  they  are~issued7'being  instrunleirCslTf   the~/ 
national  government,  they  are  exempt  from  taxation  by  the  govern-/ 
ments  of  the  several  States.      Weston    v.  Charleston  City  Council, 
2  Pet.  449  ;  Banks  v.  Mayor,  7  Wall.  16 ;  Bank  v.  Supervisors,  7  Wall. 
26.     Congress  has  authority  to   issue   these  obligations  in  a  form 
adapted  to  circulation  from  hand  to  hand  in  the  ordinary  transac- 
tions of  commerce  and  business.     In  order  to  promote  and  facilitate 
such  circulation,  to  adapt  them  to  use  as  currency,  and  to  make  them 
more  current  in  the  market,  it  may  provide  for  their  redemption  in 
coin  or  bonds,  and  may  make  them  receivable  in  payment  of  debts  to 
the  government.     So  much  is  settled  beyond  doubt,  and  was  asserted 
or  distinctly  admitted  by  the  judges  who  dissented  from  the  decision 
in  the  Legal  Tender  Cases,  as  well  as  by  those  who  concurred  in 
tnat  decision.     Veazie  Bank  v.  Fen  no,  8  Wall.  533,  548;  Hepburn  v. 

29 


450  •  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

Giiswold,  8  Wall.  616,  636 ;  Legal  Tender  Cases,  12  Wall.  543,  544, 
560,  582,  610,  613,  637. 

It  is  equally  well  settled  that  Congress  has  the  power  to  incor- 
porate national  banks,  with  the  capacity,  for  their  own  profit  as 
well  as  for  tlie  use  of  the  government  in  its  money  transactions,  of 
issuing  bills  ^'hich  under  ordinary  circumstances  pass  from  hand  to 
hand  as  money  at  their  nominal  value,  and  which,  when  so  current, 
^  the  law  has  always  recognized  as  a  good  tender  in  payment  of  money 
^'  debts,  unless  specifically  objected  to  at  the  time  of  the  tender. 
United  States  Bank  v.  Bank  of  Georgia,  10  Wheat.  333,  347;  Ward 
V.  Smith,  7  Wall.  447,  451.  The  power  of  Congress  to  charter  a  bank 
was  maintained  in  McCulloch  v.  Maryland,  4  Wheat.  316,  and  in 
Osborn  v.  United  States  Bank,  9  Wheat.  738,  chiefly  upon  the 
ground  that  it  was  an  appropriate  means  for  carrying  on  the  money 
transactions  of  the  government.  But  Chief  Justice  Marshall  said : 
"  The  currency  which  it  circulates,  by  means  of  its  trade  with  indi- 
viduals, is  believed  to  make  it  a  more  fit  instrument  for  the  purposes 
of  government  than  it  could  otherwise  be  ;  and  if  this  be  true,  the 
capacity  to  carry  on  this  trade  is  a  faculty  indispensable  to  the  char- 
acter and  objects  of  the  institution."  9  Wheat.  864.  And  Mr. 
Justice  Johnson,  who  concurred  with  the  rest  of  the  court  in  up- 
holding the  power  to  incorporate  a  bank,  gave  the  further  reason 
that  it  tended  to  give  eifect  to  '•  that  power  over  the  currency  of  the 
country,  which  the  framers  of  the  Constitution  evidently  intended  to 
give  to  Congress  alone."     lb.  873. 

The  constitutional  authority  of  Congress  to  provide  a  currency  for 
the  whole  country  is  now  firml}^  established.  In  Yeazie  Bank  v. 
Fenno,  8  Wall.  533,  548,  Chief  Justice  Chase,  in  delivering  the 
opinion  of  the  court,  said  :  "  It  cannot  be  doubted  that  under  the 
Constitution  the  power  to  provide  a  circulation  of  coin  is  given  to 
Congress.  And  it  is  settled  by  the  uniform  practice  of  the  govern- 
f  ment,  and  by  repeated  decisions,  that  Congress  may  constitutionally 
authorize  the  emission  of  bills  of  credit."  Congress,  having  under- 
taken to  supply  a  national  currency,  consisting  of  coin,  of  treasury 
notes  of  the  United  States,  and  oj  the  bills  of  national  banks,  is 
authorized  to  impose  on  all  State  banks,  or  national  banks,  or  private 
bankers,  paying  out  the  notes  of  individuals  or  of  State  banks,  a  tax 
of  ten  per  cent  upon  the  amount  of  such  notes  so  paid  out.  Yeazie 
Bank  v.  Fenno,  above  cited;  National  Bank  v.  United  States,  101 
U.  S.  1.  The  reason  for  this  conclusion  was  stated  by  Chief  Justice 
Chase,  and  repeated  by  the  present  Chief  Justice,  in  these  words  : 
"  Having  thus,  in  the  exercise  of  undisputed  constitutional  powers, 
undertaken  to  provide  a  currency  for  the  whole  country,  it  cannot 
be  questioned  that  Congress  may,  constitutionally,  secure  the  benefit 
of  it  to  the  people  by  appropriate  legislation.  To  this  end,  Congress 
has  denied  the  quality  of  legal  tender  to  foreign  coins,  and  has  pro- 
vided by  law  against  the  imposition  of  counterfeit  and  base  coin  on 


SECT,  v.] 


LEGAL  TENDER  CASE. 


451 


the  community.  To  the  same  end,  Congress  may  restrain,  by  suit-  \ 
able  enactments,  the  circulation  as  money  of  any  notes  not  issued  \ 
under  its  own  authority.  Without  this  power,  indeed,  its  attempts  / 
to  secure  a  sound  and  uniform  currency  for  the  country  must  be  ' 
futile."     8  Wall.  549 ;  101  U.  S.  6. 

By  the  Constitution  of  the  United  States,  the  several  States  are 
prohibited  from  coining  money,  emitting  bills  of  credit,  or  making 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts.) 
But  no  intention  can  be  inferred  from  this  to  deny  to  Congress  either  j 
of  these  powers.  Most  of  the  powers  granted  to  Congress  are  de- 
scribed in  the  eighth  section  of  the  first  article  ;  the  limitations 
intended  to  be  set  to  its  powers,  so  as  to  exclude  certain  things 
which  might  otherwise  be  taken  to  be  included  in  the  general  grant, 
are  defined  in  the  ninth  section  ;  the  tenth  section  is  addressed  to 
the  States  only.  This  section  prohibits  the  States  from  doing  some 
things  which  the  United  States  are  expressly  prohibited  from  doing, 
as  well  as  from  doing  some  things  which  the  United  States  are  ex- 
pressly authorized  to  do,  and  from  doing  some  things  which  are 
neither  expressly  granted  nor  expressly  denied  to  the  United 
States.  Congress  and  the  States  equally  are  expressly  prohibited 
from  passing  any  bill  of  attainder  or  ex  post  facto  law,  or  granting 
any  title  of  nobility.  The  States  are  forbidden,  while  the  Presi 
dent  and  Senate  are  expressly  authorized,  to  make  treaties.  The 
States^  are  forbidden,  but  Congress  is  expressly  authorized, jto  com, 
'money.  The  States  are  prohibited  from^mTttTng  biTls_^f3redit_; 
J)ut_Cpagriss,-Jdlich_jsn  expres¥Iy~authoHzed_j]ior  ^xpressly 

forbidden  to  do  so,  has,  as  we  Tiavealreadx_seen^j3een_2i^^ 
the  power  of  emTttTng  bills'of^regitTand  ofjmaking  every  provision 
"for  their  circulation~as~currency,  short  of  giving  them  the  quality  of 
legal  tender  for  private  debts  —  even  by  those  who  have  denied  its 
authority  to  give  them  this  quality. 

It  appears  to  us  to  follow,  as  a  logical  and  necessary  consequence, 
that  Congress  has  the  power  to  issue  the  obligations  of  the_  United 
States  in  such  form,_and_to  impress-upoiLJjiem  sucTi'qualities  as 
currency_forjbhe_purchase  of  merchandise  and~Eti{;  pgymenf^^debts,  | 

oveim  m  e  iTtST'lli  e  po\ver,  as. 

TTTi~ornotes 

ing__upoji_tliose 

payment 

to  belong  to 


J 


as  accord  with  the  usage  of  sovereign 


incy^nOoJJl^-Bo^ieLii*^  borrowiug_rnoney  and  issuing 

QJL,.ihe_ggv£rnnient  for  money  bon-ojwecl,  of  impr! 

bills  or  jiotes  the  quality  of  being  a  legal  tender  for  the 


of  private  _debts,  was  a  po^eFunivers^allyunderstooc 
sovereignty,  in  Europe  and  ^Sierifiar^i-^He-iiraeJorJheJ^i^i^^ 
adoption  of  the  Constitution  of  the__United  States.  The-gerPfnments 
of  Europe,  acting  through  the  monarch  or  the  legislature,  according 
to  the  distribution  of  powers  under  their  respective  constitutions, 
had  and  have  as  sovereign  a  power  of  issuing  paper  money  as  of 
stamping  coin.  This  power  has  been  distinctly  recognized  in  an  im- 
portant modern  case,  ably  argued  and  fully  considered,  in  which  the 


452  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

Emperor  of  Austria,  as  King  of  Hungary,  obtained  from  the  English 
Court  of  Chancery  an  injunction  against  the  issue  in  England,  with- 
out his  license,  of  notes  purporting  to  be  public  paper  money  of 
Hungary.  Austria  v.  Day,  'I  Giff.  628,  and  3  D.  F.  &  J.  217.  The 
power  of  issuing  bills  of  credit,  and  making  them,  at  the  discretion 
•  of  the  legislature,  a  tender  in  payment  of  private  debts,  had  long 
been  exercised  in  this  country  by  the  several  Colonies  and  States ; 
and  during  the  Revolutionary  War  the  States,  upon  the  recom- 
mendation of  the  Congress  of  the  Confederation,  had  made  the  bills 
issued  by  Congress  a  legal  tender.  See  Craig  v.  Missouri,  4  Pet.  435, 
453 ;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  313,  334-336 ;  Legal 
Tender  Cases,  12  Wall.  557,  558,  622 ;  Phillips  on  American  Paper 
Currency,  passim.  _The  exercise  of  this  power  not  being  prohibited^ 
to  Congressjbx  ^^^^  C""stit,nt,ion,  it  is  inrlurlpfl  in  the  power  expressly 
granted  to  boriQW  money  on  the  credit  of  the  United  States^ 
i^  ^''^'^TlTrrpositioii  is  fortified  by  the  fact  that  Congress  is  vested  with 
the  exclusive  exercise  of  the  analogous  power  of  coining  money  and 
regulating  the  value  of  domestic  and  foreign  coin,  and  also  with  the 
paramount  power  of  regulating  foreign  and  interstate  commerce. 
Under  the  power  to  borrow  money  on  the  credit  of  the  United  States, 
and  to  issue  circulating  notes  for  the  money  borrowed,  its  power  to 
define  the  quality  and  force  of  those  notes  as  currency  is  as  broad  as 
the  like  power  over  a  metallic  currency  under  the  power  to  coin 
money  and  to  regulate  the  value  thereof.  Under  the  two  powers, 
taken  together.  Congress  is  authorized  to  establish  a  national  cur- 
/  rency,  either  in  coin  or  in  paper,  and  to  make  that  currency  lawful 
money  for  all  purposes,  as  regards  the  national  government  or 
\  private  individuals: 

JEhe-pQwer  of^making  the  jQO:tegjifJJifi_United  States  ajegaltender 
in  payment  of  private  debts,  being  incln(1pd~nrthft  pnwf-r  tojiofrow^ 
.money  and  to  piNoyide  a  national  currency,  is  not  defeated  or-restri(^ted_ 
Tpy  the  fact  that  its  exercise  may  affect  the  value  of  private  contracts. 
If,  upon  a  just  and  fair  interpretation  of  the  whole  Constitution,  a 
particular  power  or  authority  appears  to  be  vested  in  Congress,  it  is 
110  constitutional  objection  to  its  existence,  or  to  its  exercise,  that 
the  property  or  the  contracts  of  individuals  may  be  incidentally 
affected.  The  decisions  of  this  court,  already  cited,  afford  several 
examples  of  this. 

Upon  the  issue  of  stock,  bonds,  bills,  or  notes  of  the  United  States, 
the  States  are  deprived  of  their  power  of  taxation  to  the  extent  of 
the  property  invested  by  individuals  in  such  obligations,  and  the 
burden  of  State  taxation  upon  other  private  property  is  correspond- 
ingly increased.  The  ten  per  cent  tax,  imposed  by  Congress  on 
notes  of  State  banks  and  of  private  bankers,  not  only  lessens  the 
value  of  such  notes,  but  tends  to  drive  them,  and  all  State  banks  of 
issue,  out  of  existence.  The  priority  given  to  debts  due  to  the  United 
States  over  the  private  debts  of  an  insolvent  debtor  diminishes  the 


SECT,  v.] 


LEGAL   TENDER   CASE. 


453 


value  of  these  debts,  and  the  amount  which  their  holders  may  receive 
out  of  the  debtor's  estate. 

So,  under  the  power  to  coin  money  and  to  regulate  its  value,  Con- 
gress may  (as  it  did  with  regard  to  gold  by  the  act  of  June  28th, 
1834,  ch.  95,  and  with  regard  to  silver  by  the  act  of  February  28th, 
1878,  ch.  20)  issue  coins  of  the  same  denominations  as  those  already 
current  by  law,  but  of  less  intrinsic  value  than  those,  by  reason  of 
containing  a  less  weight  of  the  precious  metals,  and  thereby  enable 
debtors  to  discharge  their  debts  by  the  payment  of  coins  of  the  less 
real  value.  A  contract  to  pay  a  certain  sura  in  money,  without  any 
stipulation_  as  to  the  kind  of  mojiey  m  which  it  shall  be  paldTmay^ 

^Iways  be  satisfied  by  payment  of  that  sum  in  any  currency  which 
is  lawful  money  at  the  place  and  time  at  which  payment  is  to  be_ 

^made.      1  Hale  P."a~l92-194';    Bac.  Ab.  Tender,  13.  2;    Pothier7 
Contract  of  Sale,  No.  416 ;  Pardessus,  Droit  Commercial,  Nos.  204, 
205;    Searight   v.   Calbraith,    4   Dall.    324.      As   observed   by   Mr. 
Justice  Strong,  in  delivering  the  opinion  of  the  court  in  the  Legal ^^ 
Tender  Cases,  ^^  Every  contract  for  the  payment  of  money,  simply^:  ' 
is  necessarily  subjacL^to  the  coi^itutional  power  of  the  government 

^ over  the  currencVvjEhatever  that~pbwer  may  be,  and  the  obliga^To^j 

_fl£,the.j3arties  iSj_t_herefore,  assumed  with  reference  to  that  poweu/'u 
12  Wall.  549.  '  ^ 

Congress,  as  the  legislature  of  a  sovereign  nation,  being  expressly^ 
empowered  by  the  Constitution  ''to  lay  and  collect  taxes,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States,"  and  "  to  borrow  money  on  the  credit  of  the  United 
States,"  and  "  to  coin  money  and  regulate  the  value  thereof  and  of 
foreign  coin  ; "  and  being  ^clearly  autliorize^dj^as  incidental  to  the 
exercise  of  those   great  powers,  to   emit  bills   of  credit,  to  charter 

_national.  bauks^  and  to  provide  a  na.tinpnl    p.nrrpm;y_fru:_f;hp_^whj^ 
people,  in  the  form  of  coin^  treasury  notes.,  and  national  bank  bills  ; 

^and  the  power  to  make  the  notes  of_the  government  a  legal  tender  in 

^_4)ayment   of   private    debts   beingone  of  the    powers^EelongiTig   to 
sovereignty  in  othex-  civilized   nations,  and  not  exm^essly  withheTcT 

^rora  Congress  byTIie"  Constitutioiij^  we  are  irresistibly  impelled  to" 
the  conclusion  that  the   impressing  upon  the  treasury , notes  of  the 

JUnited  Sf-.aj-gs_fJTiR_£[rin1rhy_of  V^pjngji  legal  toijteTinlTaymeTni^d^ 
private   debts    is    an 


njTprojrnat.e  m en.n .'j^__p,mi d noTvp^  and  plainly;^ 
adapted  to  the^xecution  of  the  undoubted  powers  of  Cangf?f?s7con- 
sistent  with  the  letter  and  spirit  of  the  Constitution,  and  theretore, 
within  the  meaning  of  that  instrument,  "  necessary  and  proppr  for 
carrying  into  execution  the  powers  vested  by  this  Constitution  in 
the  government  of  the  United  States." 

Such  being  our  conclusion  in  matter  of  law,  the  question  whether  ' 
at  any  particular  time,  in  war  or  in  peace,  the  exigency  is  such,  by  i 
reason  of  unusual  and  pressing  demands  on  the  resources  of  the  I 
government,  or  of  the  inadequacy  of  the  supply  of  gold  and  silver 


454  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

coin  to  fnrnisli  the  currency  needed  for  the  uses  of  the  government 
and  of  the  people,  that  it  is,  as  matter  of  fact,  wise,  and  expedient 
i^tp  resort  tq^tliis  means,  is  a  political  question^  to  Ije  determined  tjy 
'  £!ongress  when  the  cLuestion  of  exigency  arises,  and  not  a  iiidigial 
question,  to  be_  afterwards  passed  upon  by  the_courts.  To  quote 
^once  more  from  the  judgment  in  McCulloch  v.  Maryland  :  "  Where 
the  law  is  not  prohibited,  and  is  really  calculated  to  effect  any  of  the 
objects  intrusted  to  the  government,  to  undertake  here  to  inquire 
into  the  degree  of  its  necessity  would  be  to  pass  the  line  which 
circumscribes  the  judicial  department,  and  to  tread  on  legislative 
ground."     4  Wheat.  423. 

It  follows  that  the  act  of  May  31st,  1878,  ch.  146,  is  constitutional 
and  valid ;  and  that  the  Circuit  Court  rightly  held  that  the  tender  in 
treasury  notes,  reissued  and  kept  in  circulation  under  that  act,  was  a 
tender  of  lawful  money  in  payment  of  the  defendant's  debt  to  the 
plaintiff.  Judgment  affirvied.^ 


TREBILCOCK  v.  WILSOK 

12  Wallace,  687.     1871. 

i; Wilson  executed  to  Trebilcock  in  June,  1861,  a  promissory  note 
for  nine  hundred  dollars,  due  in  one  year  after  date  with  interest  at 
ten  per  cent  per  annum,  "  payable  in  specie,"  and  at  the  same  date 
executed  a  mortgage  on  real  property  to  secure  the  payment  of  the 
same. 

In  July,  1865,  Wilson  brought  action  in  a  District  Court  of  Iowa, 
setting  out  the  note  above  referred  to,  and  alleging  that  he  had  pre- 
viously tendered  to  defendant  payment  of  said  note  in  full  in  legal 
tender  treasury  notes  of  the  United  States,  authorized  by  act  of 
Congress  of  February  25th,  1862,  which  provided  that  such  notes 
should  be  "lawful  money  and  a  legal  tender  in  payment  of  all  debts, 
public  and  private,  within  the  United  States,  except  duties  on  im- 
ports," &c.,  and  that  this  tender  had  been  refused  by  the  defendant 
on  the  ground  that  such  money  was  not  the  kind  called  for  by  the 
contract,  and  plaintiff  prayed  that  defendant  be  required  to  release 
the  mortgage  upon  the  proper  book  of  record  as  having  been  satisfied 
by  such  tender,  it  being  further  averred  that  plaintiff  had  kept  the 
money  tendered  ready  to  pay  the  defendant,  and  that  it  was  brought 
into  court  for  that  purpose. 

Defendant  interposed  a  demurrer  to  the  petition,  stating  the  fol- 
lowing grounds : — 

"  1st.   The  petition  shows  upon  its  face  that  by  the  contract  the 

1  Mr.  Justice  Field  dissented. 


SECT,  v.]  TREBILCOCK   V.    WILSON.  455 

note  could  only  be  discharged  by  payment  of  the  amount  due  thereon 
in  gold. 

'<  2d.  The  petition  asks  the  aid  of  this  court  for  the  reason  that 
the  petitioners  tendered  the  amount  of  the  note  described  iu  the 
petition  in  United  States  treasury  notes.  Such  tender  is  not  good. 
There  is  no  law  of  this  State  or  of  the  United  States  making  any- 
thing but  gold  and  silver  a  legal  tender  in  discharge  of  the  contract 
set  out  iu  the  petition.  This  contract  was  entered  into  on  the  2ijth 
day  of  June,  1861.  The  law  of  Congress  making  United  States 
treasury  notes  a  legal  tender  in  payment  of  debts  does  not  apply  to 
this  contract,  because  it  was  not  enacted  until  long  after  this  con- 
tract was  entered  into,  to  wit,  on  the  2oth  day  of  February,  1862. 
To  apply  this  law  to  this  contract  would  be  to  make  it  a  retrospec- 
tive law,  a  law  impairing  the  obligation  of  contracts,  iu  violation  of 
the  Constitution  of  the  United  States.'' 

This  demurrer  was  overruled  by  the  District  Court,  and  it  was 
decreed  that  the  mortgage  be  cancelled  and  satisfaction  thereof 
entered  upon  the  record. 

The  case  being  appealed  to  the  Supreme  Court  of  Iowa,  the  decree 
of  the  lower  court  was  affirmed  and  the  case  was  brought  to  this  court 
on  writ  of  error. 

The  opinion  of  the  Supreme  Court  of  Iowa  is  reported  in  23  Iowa, 
331,  where,  however,  the  court  does  not  give  its  reasons  but  refers 
to  earlier  cases,  from  which  it  appears  that  in  the  view  of  that  court 
the  insertion  in  the  contract  of  specific  terms  as  to  the  medium  for 
payment  did  not  change  or  increase  the  obligation  of  the  maker  to 
pay  in  any  medium  or  currency  declared  by  law  to  be  a  legal  tender 
in  the  payment  of  debts,  and  that  the  enactment  after  the  execution 
of  the  contract  of  the  statute  making  treasury  notes  a  legal  tender, 
simply  provided  another  medium  for  the  payment  of  the  debt  already 
existing,  which  was  specified  to  be  so  many  dollars  of  a  certain 
currency.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  principal  question  presented  in  this  case  for  our  consideration 
is,  whether  a  promissory  note  of  an  individual,  payable  by  its  terms 
ill  specie,  can  be  satisfied,  against  the  will  of  the  holder,  by  the 
tender  of  notes  of  the  United  States  declared  by  the  act  of  Congress 
of  February  25th,  1862,  to  be  a  legal  tender  in  payment  of  debts. 

[A  portion  of  the  opinion  relating  to  a  question  of  jurisdiction  of 
the  court  is  omitted.] 

We  proceed,  then,  to  consider  the  merits  of  the  case.  The  note  of 
the  plaintiff  is  made  payable,  as  already  stated,  i?i  specie.  The  use 
of  these  terms,  iti  specie,  does  not  assimilate  the  note  to  an  instru- 
ment in  which  the  amount  stated  is  payable  in  chattels;  as,  for 
example,  to  a  contract  to  pay  a  specified  sum  in  lumber,  or  in  fruit, 
or  grain.  Such  contracts  are  generally  made  because  it  is  more  con- 
venient for  the  maker  to  furnish  the  articles  designated  than  to  pay 


456  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV 

the  money.  He  has  his  option  of  doing  either  at  the  maturity  of 
the  contract,  but  if  he  is  then  unable  to  furnish  the  articles  or 
neglects  to  do  so,  the  number  of  dollars  specified  is  the  measure 
of  recovery.  But  here  the  terms,  in  specie,  are  merely  descriptive 
of  the  kind  of  dollars  in  which  the  note  is  payable,  there  being  dif- 
ferent kinds  in  circulation,  recognized  by  law.  They  mean  that  the 
designated  number  of  dollars  in  the  note  shall  be  paid  in  so  many 
gold  or  silver  dollars  of  the  coinage  of  the  United  States.  They 
have  acquired  this  meaning  by  general  usage  among  traders,  mer- 
chants, and  bankers,  and  are  the  opposite  of  the  terms,  hi  currency, 
which  are  used  when  it  is  desired  to  make  a  note  payable  in  paper 
money.  These  latter  terms,  in  currency,  mean  that  the  designated 
number  of  dollars  is  payable  in  an  equal  number  of  notes  which  are 
current  in  the  community  as  dollars.     Taup  v.  Drew,  10  How.  218. 

This  being  the  meaning  of  the  terms  in  specie,  the  case  is  brought 
directly  within  the  decision  of  Bronson  v.  Ehodes,  7  Wall.  229, 
where  it  was  held  that  express  contracts,  payable  in  gold  or  silver 
dollars,  could  only  be  satisfied  by  the  payment  of  coined  dollars,  and 
could  not  be  discharged  by  notes  of  the  United  States  declared  to  be 
a  legal  tender  in  payment  of  debts. 

The  several  coinage  acts  of  Congress  make  the  gold  and  silver 
coins  of  the  United  States  a  legal  tender  in  all  payments,  according 
to  their  nominal  or  declared  values.  The  provisions  of  the  act  of 
January  18th,  1837,  and  of  March  3d,  1849,  in  this  respect,  were  in 
force  when  the  act  of  February  25th,  1862,  was  passed,  and  still 
remain  in  force.  As  the  act  of  1862  declares  that  the  notes  of  the 
United  States  shall  also  be  lawful  money  and  a  legal  tender  in  pay- 
ment of  debts,  and  this  act  has  been  sustained,  by  the  recent  decision 
of  this  court,  as  valid  and  constitutional,  we  have,  according  to  that 
decision,  two  kinds  of  money,  essentially  different  in  their  nature, 
but  equally  lawful.  It  follows,  from  that  decision,  that  contracts 
payable  in  either,  or  for  the  possession  of  either,  must  be  equally 
lawful,  and,  if  lawful,  must  be  equally  capable  of  enforcement.  The 
act  of  1862  itself  distinguishes  between  the  two  kinds  of  dollars  in 
providing  for  the  payment  in  coin  of  duties  on  imports  and  the  inter- 
est on  the  bonds  and  notes  of  the  government.  It  is  obvious  that 
the  requirement  of  coin  for  duties  could  not  be  complied  with  by  the 
importer,  nor  could  his  necessities  for  the  purchase  of  goods  in  a 
foreign  market  be  answered,  if  his  contracts  for  coin  could  not  be 
specifically  enforced,  but  could  be  satisfied  by  an  offer  to  pay  its 
nominal  equivalent  in  note  dollars. 

The  contemporaneous  and  subsequent  legislation  of  Congress  has 
distinguished  between  the  two  kinds  of  dollars.  The  act  of  March 
17th,  1862  (12  Stat,  at  Large,  370),  passed  within  one  month  after  the 
passage  of  the  first  legal  tender  act,  authorized  the  Secretary  of  the 
Treasury  to  purchase  coin  with  bonds  or  United  States  notes,  at  such 
rates  and  upon  such  terms  as  he  might  deem  most  advantageous  to 


SECT,  v.]  TREBILCOCK    V.   WILSON.  457 

the  public  interest,  thus  recognizing  that  the  notes  and  the  coin  were 
not  exchangeable  in  the  market  according  to  their  legal  or  nominal 
values. 

The  act  of  March  3d,  1863  (12  Stat,  at  Large,  719,  §  4),  amending 
the  internal  revenue  act,  required  contracts  for  the  purchase  or  sale 
of  gold  or  silver  coin  to  be  in  writing,  or  printed,  and  signed  by  the 
parties,  their  agents  or  attorneys,  and  stamped ;  thus  impliedly 
recognizing  the  validity  of  previous  contracts  of  that  character  with- 
out this  formality.  The  same  act  .also  contained  various  provisions 
respecting  contracts  for  the  loan  of  currency  secured  by  a  pledge  or 
deposit  of  gold  or  silver  coin,  where  the  contracts  were  not  to  be 
performed  within  three  days. 

Legislation  of  a  later  date  has  required  all  persons  making  returns 
of  income,  to  declare  "  whether  the  several  rates  and  amounts  therein 
contained  are  stated  according  to  their  values  in  legal  tender  cur- 
rency, or  according  to  their  values  in  coined  money,"  and  if  stated 
"in  coined  money,"  it  is  made  the  duty  of  the  assessor  to  reduce 
the  rates  and  amounts  "  to  their  equivalent  in  legal  tender  currency, 
according  to  the  value  of  such  coined  money  in  said  currency  for  the 
time  covered  by  said  returns."     14  Stat,  at  Large,  147. 

The.  practice  of  the  government  has  corresponded  with  the  legisla- 
tion we  have  mentioned.  It  has  uniformly  recognized  in  its  tiscal 
affairs  the  distinction  in  value  between  paper  currency  and  coin. 
Some  of  its  loans  are  made  payable  specifically  in  coin,  whilst  others 
are  payable  generally  in  lawful  money.  It.  goes  frequently  into  the 
money  market,  and  at  one  time  buys  coin  with  currency,  and  at 
another  time  sells  coin  for  currency.  In  its  transactions  it  every 
day  issues  its  checks,  bills,  and  obligations,  some  of  which  are  pay- 
able in  gold,  while  others  are  payable  simply  in  dollars.  And  it 
keeps  its  accounts  of  coin  and  currency  distinct  and  separate. 

If  we  look  to  the  act  of  1862,  in  the  light  of  the  contemporaneous 
and  subsequent  legislation  of  Congress,  and  of  the  practice  of  the 
government,  we  shall  find  little  difficulty  in  holding  that  it  was  not 
intended  to  interfere  in  any  respect  with  existing  or  subsequent 
contracts  payable  by  their  express  terms  in  specie ;  and  tliat  when 
it  declares  that  the  notes  of  the  United  States  shall  be  lawful  money, 
and  a  legal  tender  for  all  debts,  it  means  for  all  debts  which  are  pay- 
able in  money  generally,  and  not  obligations  payable  in  commodities, 
or  obligations  of  any  other  kind. 

In  the  case  of  Cheang-Kee  v.  United  States,  3  Wall.  320,  a  judg- 
ment for  unpaid  duties,  payable  in  gold  and  silver  coin  of  the  United 
States,  rendered  by  the  Circuit  Court  for  the  District  of  California, 
was  affirmed  by  this  court. 

It  is  evident  that  a  judgment  in  any  other  form  would  often  fail 
to  secure  to  the  United  States  payment  in  coin,  which  the  law  re- 
quires, or  its  equivalent.  If  the  judgment  were  rendered  for  the 
payment  of  dollars  generally  it  might,  according  to  the  recent  deci- 


458  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  17 

sion  of  this  court,  be  paid  in  note  dollars,  and,  if  they  were  depreci- 
ated, the  government  would  not  recover  what  it  was  entitled  to 
receive.  If,  on  the  other  hand,  the  value  of  the  coin  was  estimated 
in  currency  and  judgment  for  the  amount  entered,  the  government, 
in  case  of  any  delay  in  the  payment  of  the  judgment,  by  appeal  or 
otherwise,  would  run  the  risk  of  losing  a  portion  of  what  it  was 
entitled  to  receive  by  the  intermediate  fluctuations  in  the  value  of 
the  currency.  From  considerations  of  this  kind  this  court  felt  justi- 
fied in  sustaining  the  judgment  of  the  Circuit  Court  for  California, 
requiring  its  amount  to  be  paid  specifically  in  coin,  as  being  the  only 
mode  by  which  the  law  could  be  fully  enforced.  The  same  reason- 
ing justified  similar  judgments  upon  contracts  that  stipulated  specifi- 
cally for  the  payment  of  coin.  The  twentieth  section  of  the  act  of 
1792  (1  Stat,  at  Large,  250,  §  20),  establishing  a  mint  and  regulating 
the  coins  of  the  United  States,  in  providing  that  the  money  of 
account  of  the  United  States  shall  be  expressed  in  dollars,  dimes, 
cents,  and  mills,  and  that  all  proceedings  in  the  courts  of  the  United 
States  shall  be  kept  in  conformity  with  this  regulation,  impliedly, 
if  not  directly,  sanctions  the  entry  of  judgments  in  this  form.  The 
section  has  reference  to  the  coins  prescribed  by  the  act,  and  when, 
by  the  creation  of  a  paper  currenc}-,  another  kind  of  money,  ex- 
pressed by  similar  designations,  was  sanctioned  by  law  and  mad  3  a 
tender  in  payment  of  debts,  it  was  necessary,  as  stated  in  Bronson  v. 
Rhodes,  to  avoid  ambiguity  and  prevent  a  failure  of  justice,  to  allow 
judgments  to  be  entered  for  the  payment  of  coined  dollars,  when 
that  kind  of  money  was  specifically  designated  in  the  contracts  upon 
which  suits  were  brought. 

It  follows  from  the  views  expressed,  that  the  judgment  of  the 
Supreme  Court  of  Iowa  must  be  reversed,  and  that  court  directed  to 
remand  the  cause  to  the  proper  inferior  court  of  the  State  for  further 
proceedings  in  conformity  with  this  opinion ; 

A7id  it  is  so  ordered. 

Mr.  Justice  Bradley,  dissenting. 

I  dissent  from  the  opinion  of  the  court  in  this  case  for  reasons 
stated  in  my  opinion  delivered  in  the  cases  of  Knox  v.  Lee  and 
Parker  v.  Davis,  12  Wall.  554.  In  all  cases  where  the  contract  is 
to  pay  a  certain  sum  of  money  of  the  United  States,  in  whatever 
phraseology  that  money  may  be  described  (except  cases  specially 
exempted  by  law),  I  hold  that  the  legal  tender  acts  make  the  treas- 
ury notes  a  legal  tender.  Only  in  those  cases  in  which  gold  and 
silver  are  stipulated  for  as  bullion  can  they  be  demanded  in  specie, 
like  any  other  chattel.  Contracts  for  specie  made  since  the  legal 
tender  acts  went  into  operation,  when  gold  became  a  commodity  sub- 
ject to  market  prices,  may  be  regarded  as  contracts  for  bullion.  But 
all  contracts  for  money  made  before  the  acts  were  passed  must,  in 
my  judgment,  be  regarded  as  on  the  same  platform.  No  difficulty 
can  arise  in  this  view  of  the  case  in  sustaining  all  proper  transac- 
tions for  the  purchase  and  sale  of  gold  coin. 


SECT.  VI.]  BllISCOE    V.   BANK    OF   KENTUCKY.  459 

Mr.  Justice  ^Miller,  dissenting. 

In  the  case  of  Bronson  u.  Khodes  I  expressed  ray  dissent  on  the 
ground  that  a  contract  for  gold  dollars,  in  terms,  was  in  no  respect 
different,  in  legal  effect,  from  a  contract  for  dollars  without  the 
qualifying  words,  specie  or  gold,  and  that  the  legal  tender  statutes 
had,  therefore,  the  same  effect  in  both  cases. 

I  adhere  to  that  opinion,  and  dissent  from  the  one  just  delivered 
by  the  court. 


Section  VI.  —  Bills  of  Credit. 


BRISCOE  V.   THE   PRESIDENT   AND   DIRECTORS   OF  THE 
BANK   OF   THE   COMMONWEALTH   OF   KENTUCKY. 

11  Peters,  257  ;  12  Curtis,  418.     1837. 

M'Leax,  J.,  delivered  the  opinion  of  the  court. 

This  case  is  brought  before  this  court,  by  a  writ  of  error  from  the 
Court  of  Appeals  of  the  State  of  Kentuck}^,  under  the  25th  section  of 
the  Judiciary  Act  of  1789.     1  Stats,  at  Large,  85. 

An  action  was  commenced  by  the  Bank  of  the  Commonwealth  of 
Kentucky,  against  the  plaintiffs  in  error,  in  the  Mercer  Circuit  Court 
of  Kentucky,  on  a  note  for  82,048.37,  payable  to  the  president  and 
directors  of  the  bank  ;  and  the  defendants  filed  two  special  pleas,  in 
the  first  of  which  oyer  was  prayed  of  the  note  on  which  suit  was 
brought,  and  they  say  that  the  plaintiff  ought  not  to  have,  &c., 
because  the  note  was  given  on  the  renewal  of  a  like  note,  given  to 
the  said  bank,  and  they  refer  to  the  act  establishing  the  bank,  and 
allege  that  it  never  received  any  part  of  the  capital  stock  specified  in 
the  act;  that  the  bank  was  authorized  to  issue  bills  of  credit,  on  the 
faith  of  the  State,  in  violation  of  the  Constitution  of  the  United 
States.  That  by  various  statutes  the  notes  issued  were  made  receiv- 
able in  discharge  of  executions,  and  if  not  so  received,  the  collection 
of  the  money  should  be  delayed,  &c. ;  and  the  defendants  aver  that 
the  note  was  given  to  the  bank  on  a  loan  of  its  bills,  and  that  the 
consideration,  being  illegal,  was  void. 

I'he  second  plea  presents,  substantially,  the  same  facts.  To  both 
the  pleas  a  general  demurrer  was  filed,  and  the  court  sustained  the 
demurrer,  and  gave  judgment  in  favor  of  the  bank.  This  judgment 
was  removed,  by  ap])eal,  to  the  Court  of  Appeals,  which  is  the  higli- 
est  court  of  judicature  in  the  State,  where  the  judgment  of  the  Cir- 
cuit Court  was  affirmed,  and  being  brought  before  this  court  by  writ 
t)f  error,  the  question  is  presented  whether  the  notes  issued  by  the 


460  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  17, 

bank  are  bills  of  credit,   emitted  by  the  State,  in  violation  of  the 
Constitution  of  the  United  States. 

The  terms  ''  bills  of  credit,"  in  their  mercantile  sense,  comprehend  a 
great  variety  of  evidences  of  debt,  which  circulate  in  a  commercial 
country.  In  the  early  history  of  banks  it  seems  their  notes  were 
generally  denominated  bills  of  credit;  but  in  modern  times  they 
have  lost  that  designation,  and  are  now  called  either  bank-bills,  or 
bank-notes. 

But  the  inhibition  of  the  Constitution  applies  to  bills  of  credit,  in 
a  more  limited  sense. 

It  would  be  difficult  to  classify  the  bills  of  credit  which  were 
issued  in  the  early  history  of  this  country.  They  were  all  designed 
to  circulate  as  money,  being  issued  under  the  laws  of  the  respective 
colonies  ;  but  the  forms  were  various  in  the  different  colonies,  and 
often  in  the  same  colony. 

In  some  cases  they  were  payable  with  interest,  in  others  without 
interest.  Funds  arising  from  certain  sources  of  taxation  were 
pledged  for  their  redemption,  in  some  instances  ;  in  others  they  were 
issued  without  such  a  pledge.  They  were  sometimes  made  a  legal 
tender ;  at  others,  not.  In  some  instances  a  refusal  to  receive  them 
operated  as  a  discharge  of  the  debt ;  in  others,  a  postponement  of  it. 

They  were  sometimes  payable  on  demand  ;  at  other  times,  at  some 
future  period.  At  all  times  the  bills  were  receivable  for  taxes,  and 
in  payment  of  debts  due  to  the  public,  except,  perhaps,  in  some 
instances,  where  they  had  become  so  depreciated  as  to  be  of  little  or 
no  value. 

These  bills  were  frequently  issued  by  committees,  and  sometimes 
by  an  officer  of  the  government,  or  an  individual  designated  for  that 
purpose. 

The  bills  of  credit  emitted  by  the  States  during  the  Revolution,  and 
prior  to  the  adoption  of  the  Constitution,  were  not  very  dissimilar 
from  those  which  the  colonies  had  been  in  the  practice  of  issuing. 
There  were  some  characteristics  which  were  common  to  all  these 
bills.  They  were  issued  by  the  colony  or  State,  and  on  its  credit. 
For  in  cases  where  funds  were  pledged,  the  bills  were  to  be  redeemed 
at  a  future  period,  and  gradually  as  the  means  of  redemption  should 
accumulate.  In  some  instances,  Congress  guaranteed  the  payment 
of  bills  emitted  by  a  State. 

They  were,  perhaps,  never  convertible  into  gold  and  silver,  imme- 
diately on  their  emission ;  as  they  were  issued  to  supply  the  pressing 
pecuniary  wants  of  the  government,  their  circulating  as  money  was 
indispensable.  The  necessity  which  required  their  emission  pre- 
cluded the  possibility  of  their  immediate  redemption. 

In  the  case  of  Craig  et  al.  v.  The  State  of  Missouri,  4  Pet.  410,  this 
court  was  called  upon,  for  the  first  time,  to  determine  what  con- 
stituted a  bill  of  credit,  within  the  meaning  of  the  Constitution.     A 


SECT.  VI.]  BRISCOE    V.    BANK    OF   KENTUCKY.  461 

majority  of  the  judges  in  that  case,  in  the  language  of  the  Chief 
Justice,  say,  that  "  bills  of  credit  signify  a  paper  medium,  intended 
to  circulate  between  individuals,  and  between  government  and  indi- 
viduals, for  the  ordinary  purposes  of  society." 

A  definition  so  general  as  this  would  certainly  embrace  every 
description  of  paper  which  circulates  as  money. 

Two  of  the  dissenting  judges,  on  that  occasion,  gave  a  more  defi- 
nite, though,  perhaps,  a  less  accurate  meaning,  of  the  terms  "  bills  of 
credit." 

By  one  of  them  it  was  said,  "  a  bill  of  credit  may,  therefore,  be  con- 
sidered a  bill  drawn  and  resting  merely  on  the  credit  of  the  drawer, 
as  contradistinguished  from  a  fund  constituted  or  pledged  for  the 
payment  of  the  bill."  And  in  the  opinion  of  the  other,  it  is  said,  *'  to 
constitute  a  bill  of  credit,  within  the  meaning  of  the  Constitution,  it 
must  be  issued  by  a  State,  and  its  circulation  as  money,  enforced  by 
statutory  provisions.  It  must  contain  a  promise  of  payment  by  the 
State  generally,  when  no  fund  has  been  appropriated  to  enable  the 
holder  to  convert  it  into  money.  It  must  be  circulated  on  the 
credit  of  the  State  ;  not  that  it  will  be  paid  on  presentation,  but  that 
the  State,  at  some  future  period,  on  a  time  fixed  or  resting  in  its  own 
discretion,  will  provide  for  the  payment." 

These  definitions  cover  a  large  class  of  the  bills  of  credit  issued 
and  circulated  as  money,  but  there  are  classes  which  they  do  not 
embrace,  and  it  is  believed  that  no  definition,  short  of  a  descrip- 
tion of  each  class,  would  be  entirely  free  from  objection  ;  unless  it 
be  in  the  general  terms  used  by  the  venerable  and  lamented  Chief 
Justice. 

The  definition,  then,  which  does  include  all  classes  of  bills  of 
credit  emitted  by  the  colonies  or  States,  is,  a  paper  issued  by  the 
sovereign  power,  containing  a  pledge  of  its  faith,  and  designed  to 
circulate  as  money. 

Having  arrived  at  this  point,  the  next  inquiry  in  the  case  is, 
whether  the  notes  of  the  Bank  of  the  Commonwealth  were  bills  of 
credit  within  the  meaning  of  the  Constitution. 

A  State  cannot  do  that  which  the  Federal  Constitution  declares  it 
shall  not  do.  It  cannot  coin  money.  Here  is  an  act  inhibited  in 
terras  so  precise  that  they  cannot  be  mistaken.  They  are  susceptible 
of  but  one  construction.  And  it  is  certain  that  a  State  cannot  incor- 
porate any  number  of  individuals,  and  authorize  them  to  coin  money. 
Such  an  act  would  be  as  much  a  violation  of  the  Constitution  as  if 
the  money  were  coined  by  an  officer  of  the  State,  under  its  authority. 
The  act  being  prohibited  cannot  be  done  by  a  State,  either  directly 
or  indirectly. 

And  the  same  rule  applies  as  to  the  emission  of  bills  of  credit  by  a 
State.  The  terras  used  here  are  less  specific  than  those  which  relate 
to  coinage.     Whilst  no  one  can  mistake  the  latter,  there  are  great 


462  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

differences  of  opinion  as  to  the  construction  of  the  former.  If  the 
terms  in  each  case  were  equally  detinite,  and  were  susceptible  of  but 
one  construction,  there  could  be  no  more  difficulty  in  applying  the 
rule  in  the  one  case  than  in  the  other. 

The  weight  of  the  argument  is  admitted,  that  a  State  cannot,  by 
any  device  that  may  be  adopted,  emit  bills  of  credit.  But  the  ques- 
tion arises,  what  is  a  bill  of  credit  within  the  meaning  of  the  Consti- 
tution ?  Ou  the  answer  of  this  must  depend  the  constitutionality  or 
unconstitutionality  of  the  act  in  question. 

A  State  can  act  only  through  its  agents;  and  it  would  be  absurd 
to  say  that  any  act  was  not  done  by  a  State,  which  was  done  by  its 
authorized  agents. 

To  constitute  a  bill  of  credit  within  the  Constitution  it  must  be 
issued  by  a  State,  on  the  faith  of  the  State,  and  be  designed  to  cir- 
culate as  money.  It  must  be  a  paper  which  circulates  on  the  credit  of 
the  State ;  and  is  so  received  and  used  in  the  ordinary  business  of 
life. 

The  individual  or  committee  who  issue  the  bill  must  have  the 
power  to  bind  the  State ;  they  must  act  as  agents,  and,  of  course,  do 
not  incur  any  personal  responsibility,  nor  impart,  as  individuals,  any 
credit  to  the  paper.  These  are  the  leading  characteristics  of  a  bill 
of  credit  which  a  State  cannot  emit.  Were  the  notes  of  the  Bank  of 
the  Commonwealth  bills  of  credit  issued  by  the  State  ? 

The  president  and  directors  of  the  bank  were  incorporated,  and 
vested  with  all  the  powers  usually  given  to  banking  institutions. 
They  were  authorized  to  make  loans  on  personal  security,  and  on 
mortgages  of  real  estate.  Provisions  were  made,  and  regulations, 
common  to  all  banks  ;  but  there  are  other  parts  of  the  charter  which, 
it  is  contended,  show  that  the  president  and  directors,  acted  merely 
as  agents  of  the  State. 

In  the  preamble  of  the  act  it  is  declared  to  be  "  expedient  and 
beneficial  to  the  State,  and  the  citizens  thereof,  to  establish  a  bank 
on  the  funds  of  the  State,  for  the  purpose  of  discounting  paper,  and 
making  loans  for  longer  periods  than  has  been  customary,  and  for  the 
relief  of  the  distresses  of  the  community." 

The  president  and  directors  were  elected  by  the  legislature.  The 
capital  of  the  bank  belonged  to  the  State,  and  it  received  the  dividends. 

These  and  other  parts  of  the  charter,  it  is  argued,  show  that  the 
bank  was  a  mere  instrument  of  the  State  to  issue  bills;  and  that,  if 
by  such  a  device  the  provision  of  the  Constitution  may  be  evaded,  it 
must  become  a  nullity. 

That  there  is  much  plausibility  and  some  force  in  this  argument 
cannot  be  denied  ;  and  it  would  be  in  vain  to  assert  that  on  this  head 
the  case  is  clear  of  difficulty. 

The  preamble  of  the  act  to  incorporate  the  bank  shows  the  object 
of  its  establishment.  It  was  intended  to  "  relieve  the  distresses  of 
the  community;"  and  the  same  reason  was  assigned,  it  is  truly  said, 


SECT.  VI.]  BRISCOE   V.    BANK    OF   KENTUCKY,  463 

for  the  numerous  emissions  of  paper  money  during  the  Revolution, 
and  prior  to  that  period. 

To  relieve  the  distresses  of  the  community,  or  the  wants  of  the 
government,  has  been  the  common  reason  assigned  for  the  increase 
of  a  paper  medium,  at  all  times  and  in  all  countries.  When  a  mea- 
sure of  relief  is  determined  on,  it  is  never  difficult  to  find  plausible 
reasons  for  its  adoption.  And  it  would  seem  in  regard  to  this  sub- 
ject that  the  present  generation  has  profited  but  little  from  the 
experience  of  past  ages. 

The  notes  of  this  bank,  in  common  with  the  notes  of  all  other 
banks  in  the  State,  and  indeed  throughout  the  Union,  with  some 
exceptions,  greatly  depreciated.  This  arose  from  various  causes 
then  existing,  and  which,  under  similar  circumstances,  must  always 
produce  the  same  result. 

The  intention  of  the  legislature  in  establishing  the  bank,  as  ex- 
pressed in  the  preamble,  must  be  considered  in  connection  with  every 
part  of  the  act,  and  the  question  must  be  answered,  whether  the 
notes  of  the  bank  were  bills  of  credit  within  the  inhibition  of  the 
Constitution. 

Were  these  notes  issued  by  the  State  ? 

Upoji  their  face  they  do  not  purport  to  be  issued  by  the  State,  but 
by  the  president  and  directors  of  the  bank.  They  promise  to  pay  to 
bearer  on  demand  the  sums  stated. 

Were  tliey  issued  on  the  faith  of  the  State  ? 

The  notes  contain  no  pledge  of  the  faith  of  the  State  in  any  form. 
They  purport  to  have  been  issued  on  the  credit  of  the  funds  of  the 
bank,  and  must  have  been  so  received  in  the  community. 

But  these  funds,  it  is  said,  belonged  to  the  State  ;  and  the  promise 
to  pay  on  the  face  of  the  notes  was  made  by  the  president  and  di- 
rectors as  agents  of  the  State, 

They  do  not  assume  to  act  as  agents,  and  there  is  no  law  which 
authorizes  them  to  bind  the  State.  As  in,  perhaps,  all  bank  charters, 
they  had  the  power  to  issue  a  certain  amount  of  notes ;  but  they 
determined  the  time  and  circumstances  which  should  regulate  these 
issues. 

When  a  State  emits  bills  of  credit  the  amount  to  be  issued  is  fixed 
by  law,  as  also  the  fund  out  of  which  they  are  to  be  paid,  if  any  fund 
be  pledged  for  their  redemption  ;  and  they  are  issued  on  the  credit 
of  the  State,  which,  in  some  form,  appears  upon  the  face  of  tlie  notes, 
or  by  the  signature  of  the  person  who  issues  them. 

As  to  the  funds  of  the  Bank  of  the  Commonwealth,  they  were,  in 
part  only,  derived  from  the  State.  The  capital,  it  is  true,  was  to  be 
paid  by  the  State  ;  but  in  making  loans  the  bank  was  required  to 
take  good  securities,  and  these  constituted  a  fund  to  which  the  holders 
of  the  notes  could  look  for  payment,  and  which  could  be  made  legally 
responsible. 

In  this  respect  the  notes  of  this  bank  were  essentially  different 


464  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

from  any  class  of  bills  of  credit,  which  are  belie"ed  to  have  been 
issued. 

The  notes  were  not  only  payable  in  gold  and  silver  on  demand,  but 
there  was  a  fund,  and,  in  all  probability,  a  sufficient  fund,  to  redeem 
them.  This  fund  was  in  possession  of  the  bank,  and  under  the  con- 
trol of  the  president  and  directors.  But  whether  the  fund  was  ade- 
quate to  the  redemption  of  the  notes  issued,  or  not,  is  immaterial  to 
the  present  inquiry.  It  is  enough  that  the  fund  existed,  independent 
of  the  State,  and  was  sufficient  to  give  some  degree  of  credit  to  the 
paper  of  the  bank. 

The  question  is  not  whether  the  Bank  of  the  Commonwealth  had 
a  large  capital  or  a  small  one,  or  whether  its  notes  were  in  good  credit 
or  bad,  but  whether  they  were  issued  by  the  State,  and  on  the  faith 
and  credit  of  the  State.  The  notes  were  received  in  payment  of 
taxes,  and  in  discharge  of  all  debts  to  the  State  ;  and  this,  aided  by 
the  fund  arising  from  notes  discounted,  with  prudent  management, 
under  favorable  circumstances,  might  have  sustained,  and,  it  is  be- 
lieved, did  sustain,  to  a  considerable  extent,  the  credit  of  the  bank. 
The  notes  of  this  bank  which  are  still  in  circulation  are  equal  in  value, 
it  is  said,  to  specie. 

But  there  is  another  quality  which  distinguished  these  notes  from 
bills  of  credit.  Every  holder  of  them  could  not  only  look  to  the  funds 
of  the  bank  for  payftient,  but  he  had  in  his  power  the  means  of  en- 
forcing it. 

The  bank  could  be  sued ;  and  the  records  of  this  court  show  that 
■while  its  paper  was  depreciated,  a  suit  was  prosecuted  to  judgment 
against  it  by  a  depositor,  and  who  obtained  from  the  bank,  it  is  ad- 
mitted, the  full  amount  of  his  judgment  in  specie. 

What  means  of  enforcing  payment  from  the  State  had  the  holder 
of  a  bill  of  credit.  It  is  said  by  the  counsel  for  the  plaintiffs  that  he 
could  have  sued  the  State.     But  was  a  State  liable  to  be  sued  ? 

In  the  case  of  Chisholm's  Executor  v.  The  State  of  Georgia,  in 
1792,  2  Dal.  419,  it  was  decided  that  a  State  could  be  sued  before  this 
court,  and  this  led  to  the  adoption  of  the  amendment  of  the  Consti- 
tution on  this  subject.  But  the  bills  of  credit  which  were  emitted 
prior  to  the  Constitution  are  those  that  show  the  mischief  against 
which  the  inhibition  was  intended  to  operate.  And  we  must  look  to 
that  period,  as  of  necessity  we  have  done,  for  the  definition  and  char- 
acter of  a  bill  of  credit. 

No  sovereign  State  is  liable  to  be  sued  without  her  consent.  Un- 
der the  articles  of  confederation,  a  State  could  be  sued  only  in  cases 
of  boundary. 

It  is  believed  that  there  is  no  case  where  a  suit  has  been  brought 
at  any  time  on  bills  of  credit  against  a  State ;  and  it  is  certain  that 
no  suit  could  have  been  maintained  on  this  ground  prior  to  the 
Constitution. 

In  the  year  1769,  the  colonial  legislature  of  Maryland  passed  an 


6ECT.  VI.]  BEISCOE    V.    BANK   OF   KENTUCKY.  465 

"  act  for  emitting  bills  of  credit,"  in  whicli  bills  to  the  amount  of 
$318,000  were  authorized  to  be  struck,  under  the  direction  of  two 
commissioners,  whom  the  governor  should  appoint.  These  persons 
were  to  be  styled  "commissioners  for  emitting  bills  of  credit,"  by  that 
name  to  have  succession,  to  sue  or  be  sued,  in  all  cases  relative  to  their 
trust.  The  commissioners  were  authorized  to  make  loans  on  good 
security,  to  draw  bills  of  exchange  on  London,  under  certain  circum- 
stances ;  and  they  were  authorized  to  reissue  the  bills  issued  by  them. 

In  the  year  1712,  it  is  stated  in  Hewit's  History  of  South  Carolina, 
the  legislature  of  that  colony  established  a  public  bank,  and  issued 
£48,000,  in  bills  of  credit,  called  bank  bills.  The  money  was  to  be 
lent  out  at  interest  on  landed  or  personal  security. 

The  bills  emitted  under  these  acts  are  believed  to  be  peculiar,  and 
unlike  all  other  emissions  under  the  colonial  governments.  But  a 
slight  examination  of  the  respective  acts  will  show  that  the  bills 
authorized  by  them  were  emitted  on  the  credit  of  the  colonies,  and 
were  essentially  different  from  the  notes  in  question. 

The  holders  of  these  bills  could  not  convert  them  into  specie  ;  they 
could  bring  no  suit.  The  Maryland  bill  was  as  follows :  "■  This  in- 
dented bill  of  six  dollars  shall  entitle  the  bearer  hereof  to  receive  bills 
of  exchange  payable  in  London,  or  gold  and  silver  at  the  rate  of  four 
shillings  and  sixpence  per  dollar,  for  the  said  bill,  according  to  the 
directions  of  an  act  of  the  assembly  of  Maryland,  dated  at  Annapolis  : 
signed  by  R.  Conden  and  J.  Clapham." 

If  the  leading  properties  of  the  notes  of  the  Bank  of  the  Common- 
wealth were  essentially  different  from  any  of  the  numerous  classes 
of  bills  of  credit  issued  by  the  States  or  colonies ;  if  they  were  not 
emitted  by  the  State,  nor  upon  its  credit,  but  on  the  credit  of  the 
funds  of  the  bank ;  if  they  were  payable  in  gold  and  silver  on  de- 
mand, and  the  holder  could  sue  the  bank  ;  and  if  to  constitute  a  bill 
of  credit  it  must  be  issued  by  a  State,  and  on  the  credit  of  the  State, 
and  the  holder  could  not,  by  legal  means,  compel  the  payment  of  the 
bill,  —  how  can  the  character  of  these  two  descriptions  of  paper  be 
considered  as  identical  ?  They  were  both  circulated  as  money,  but  in 
name,  in  form,  and  in  substance  they  differ. 

It  is  insisted  that  the  principles  of  this  case  were  settled  in  the 
suit  of  Craig  et  al.  v.  The  State  of  Missouri,  4  Pet.  410. 

In  that  case  the  court  decided  that  the  following  paper,  issued 
under  a  legislative  act  of  Missouri,  was  a  bill  of  credit  within  the 
meaning  of  the  Constitution  :  — 

"  This  certificate  shall  be  receivable  at  the  treasury,  or  any  of  the 
loan  offices  of  the  State  of  Missouri,  in  the  discharge  of  taxes  or 
debts  due  to  the  State,  in  the  sum  of  dollars,  with  interest 

for  the  same,  at  the  rate  of  two  per  cent  per  annum,  from  the  date." 
By  the  act,  certificates  in  this  form,  of  various  amounts,  were  issued 
and  were  receivable  in  discharge  of  all  taxes  or  debts  due  to  the 
State,  and  in  payment  of  salaries  of  State  officers. 

30 


406  THE   LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

Four  of  the  seven  judges  considered  that  these  certificates  were 
desif'ned  to  circulate  as  money ;  that  they  were  issued  on  the  credit 
of  the  State ;  and  consequently  were  repugnant  to  the  Constitution, 

These  certificates  were  loaned  on  good  security,  at  different  loan 
offices  of  the  State,  and  were  signed  by  the  auditor  and  treasurer  of 
State.  They  were  receivable  in  payment  of  salt,  at  the  public  salt 
works,  "and  the  proceeds  of  the  salt  springs,  the  interest  accruing 
to  the  State,  and  all  estates  purchased  by  officers  under  the  provi- 
sions of  the  act,  and  all  the  debts  then  due,  or  which  should  become 
due  to  the  State,  were  pledged  and  constituted  a  fund  for  the  redemp- 
tion of  the  certificates ; "  and  the  faith  of  the  State  was  also  pledged 
for  the  same  purpose. 

It  is  only  necessary  to  compare  these  certificates  with  the  notes 
issued  by  the  Bank  of  the  Commonwealth,  to  see  that  no  two  things 
which  have  any  property  in  common  could  be  more  unlike.  They 
both  circulated  as  money,  and  were  receivable  on  public  account,  but 
in  every  other  particular  they  were  essentially  different. 

If  to  constitute  a  bill  of  credit,  either  the  form  or  substance  of  the 
Missouri  certificate  is  requisite,  it  is  clear  that  the  notes  of  the  Bank 
of  the  Commonwealth  cannot  be  called  bills  of  credit.  To  include 
both  papers  under  one  designation  would  confound  the  most  im- 
portant distinctions,  not  only  as  to  their  form  and  substance,  but  also 
as  to  their  origin  and  effect. 

There  is  no  principle  decided  by  the  court  in  the  case  of  Craig  v. 
The  State  of  Missouri,  4  Pet.  410,  which  at 'all  conflicts  with  the 
views  here  presented.  Indeed,  the  views  of  the  court  are  sustained 
and  strengthened,  by  contrasting  the  present  case  with  that  one. 

The  State  of  Kentucky  is  the  exclusive  stockholder  in  the  Bank  of 
the  Commonwealth  ;  but  does  this  fact  change  the  character  of  the 
corporation  ?  Does  it  make  the  bank  identical  with  the  State  ?  And 
are  the  operations  of  the  bank  the  operations  of  the  State  ?  Is  the 
bank  the  mere  instrument  of  the  sovereignty,  to  effectuate  its  designs, 
and  is  the  State  responsible  for  its  acts  ? 

The  answer  to  these  inquiries  will  be  given  in  the  language  of  this 
court,  used  in  former  adjudications. 

In  the  case  of  the  Bank  of  the  United  States  v.  The  Planters' 
Bank,  9  Wheat.  904,  the  Chief  Justice,  in  giving  the  opinion  of  the 
court,  says  :  "  It  is,  we  think,  a  sound  principle,  that  when  a  govern- 
ment becomes  a  partner  in  any  trading  compan}^,  it  divests  itself,  so 
far  as  concerns  the  transactions  of  that  company,  of  its  sovereign 
character,  and  takes  that  of  a  private  citizen.  Instead  of  communi- 
cating to  the  company  its  privileges  and  its  prerogatives,  it  descends 
to  a  level  with  those  with  whom  it  associates  itself,  and  takes  the 
character  which  belongs  to  its  associates  and  to  the  business  which 
is  to  be  transacted.  Thus  many  States  of  the  Union  who  have  an  in- 
terest in  banks  are  not  suable  even  in  their  own  courts ;  yet  they 
never  exempt  the  corporation  from  being  sued.     The  State  of  Geor- 


SECT.  VI.]  BRISCOE    V.    BANK    OF    KENTUCKY.  467 

gia,  by  giving  to  the  bank  the  capacity  to  sue  and  be  sued,  volun- 
tarily strips  itself  of  its  sovereign  character,  so  far  as  respects  the 
transactions  of  the  bank,  and  waives  all  the  privileges  of  that  charac- 
ter. As  a  member  of  a  corporation,  a  government  never  exercises 
its  sovereignty.  It  acts  merely  as  a  corporator,  and  exercises  no 
other  power  in  the  management  of  the  atfairs  of  the  corporation  than 
are  expressly  given  by  the  incorporating  act." 

"  The  government  becoming  a  corporator  lays  down  its  sovereignty, 
so  far  as  respects  the  transactions  of  the  corporation;  and  exercises 
no  power  or  privilege  which  is  not  derived  from  the  charter." 

"The  State  does  not,  by  becoming  a  corporator,  identify  itself  with 
the  corporation." 

In  the  case  of  the  Bank  of  the  Commonwealth  of  Kentucky  v. 
Wistar  and  others,  3  Pet,  431,  the  question  was  raised  whether  a 
suit  could  be  maintained  against  the  bank,  on  the  ground  that  it  was 
substantially  a  suit  against  the  State. 

The  agents  of  the  defendants  deposited  a  large  sum  in  the  bank ; 
and  when  the  deposit  was  demanded,  the  bank  offered  to  pay  the 
amount  in  its  own  notes,  which  were  at  a  discount.  The  notes  were 
refused,  and  a  suit  was  commenced  on  the  certificate  of  deposit. 

A  judgment  being  entered  against  the  bank,  in  the  Circuit  Court  of 
Kentucky,  a  writ  of  error  was  brought  to  this  court.  In  the  court 
below  the  defendant  pleaded  to  the  jurisdiction,  on  the  ground  that 
the  State  of  Kentucky  alone  was  the  proprietor  of  the  stock  of  the 
bank  ;  for  which  reason  it  was  insisted  that  the  suit  was  virtually 
against  a  sovereign  State. 

Mr.  Justice  Johnson,  in  giving  the  opinion  of  the  court,  after  copy- 
ing the  language  used  in  the  case  above  quoted,  says  :  "  If  a  State 
did  exercise  any  other  power  in  or  over  a  bank,  or  impart  to  it  its 
sovereign  attributes,  it  would  be  hardly  possible  to  distinguish  the 
issue  of  the  paper  of  such  banks  from  a  direct  issue  of  bills  of  credit; 
which  violation  of  the  Constitution,  no  doubt,  the  State  here  intended 
to  avoid," 

Can  language  be  more  explicit  and  more  appropriate  than  this,  to 
the  points  under  consideration  ? 

This  court  further  say :  "  The  defendants  pleaded  to  the  jurisdic- 
tion, on  the  ground  that  the  State  of  Kentucky  was  sole  proprietor 
of  the  stock  of  the  bank,  for  which  reason  it  was  insisted  that  the 
suit  was  virtually  against  a  sovereign  State.  But  the  court  is  of 
opinion  that  the  question  is  no  longer  open  here.  The  case  of  the 
United  States  Bank  v.  The  Planters'  Bank  of  Georgia,  9  Wheat.  904, 
was  a  much  stronger  case  for  the  defendants  than  the  present;  for 
there  the  State  of  Georgia  was  not  oidy  a  proprietor,  but  a  corpora- 
tor. Here,  the  State  is  not  a  corporator;  since,  by  the  terms  of  the 
act,  the  president  and  directors  alone  constitute  the  body  corporate, 
the  metaphysical  person  liable  to  suit." 

If  the  bank  acted  as  the  agent  of  the  State  under  an  uuconstitu- 


468  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

tional  charter,  although  the  persons  engaged  might  be  hehl  liable  in- 
dividually, could  they  have  been  held  responsible  as  a  corporation  ? 

It  is  true  the  only  question  raised  by  the  plea  was,  whether  the 
bank  could  be  sued,  as  its  stock  was  owned  by  the  State  ?  But  it 
would  be  difficult  to  decide  this  question,  without,  to  some  extent, 
considering  the  constitutionality  of  the  charter.  And,  indeed,  it 
appears  that  this  point  did  not  escape  the  attention  of  the  court ;  for 
they  say,  "  if  a  State  imparted  any  of  its  sovereign  attributes  to  a 
bank  in  which  it  was  a  stockholder,  it  would  hardly  be  possible  to 
distinguish  the  paper  of  such  a  bank  from  bills  of  credit ;  "  and  this, 
the  court  say,  "  the  State  in  that  case  intended  to  avoid." 

These  extracts  cover  almost  every  material  point  raised  in  this 
investigation. 

They  show  that  a  State,  when  it  becomes  a  stockholder  in  a  bank, 
imparts  none  of  its  attributes  of  sovereignty  to  the  institution  ;  and 
that  this  is  equally  the  case,  whether  it  own  a  whole  or  a  part  of  the 
stock  of  the  bank. 

It  is  admitted  by  the  counsel  for  the  plaintiffs  that  a  State  may 
become  a  stockholder  in  a  bank  ;  but  they  contend  that  it  cannot 
become  the  exclusive  owner  of  the  stock.  They  give  no  rule  by 
which  the  interest  of  a  State  in  such  an  institution  shall  be  gradu- 
ated, nor  at  what  point  the  exact  limit  shall  be  fixed.  May  a  State 
own  one  fourth,  one  half,  or  three  fourths  of  the  stock  ?  If  the 
proper  limit  be  exceeded,  does  the  charter  become  unconstitutional ; 
and  is  its  constitutionality  restored  if  the  State  recede  within  the 
limit  ?  The  court  are  as  much  at  a  loss  to  fix  the  supposed  constitu- 
tional boundary  of  this  right  as  the  counsel  can  possibly  be. 

If  the  State  must  stop  short  of  owning  the  entire  stock,  the  precise 
point  may  surely  be  ascertained.  It  cannot  be  supposed  that  so 
important  a  constitutional  principle  as  contended  for,  exists  without 
limitation. 

If  a  State  may  own  a  part  of  the  stock  of  a  bank,  we  know  of  no 
principle  which  prevents  it  from  owning  the  whole.  As  a  stock- 
holder, in  the  language  of  this  court,  above  cited,  it  can  exercise  no 
more  power  in  the  affairs  of  the  corporation  than  is  expressly  given 
by  the  incorporating  act.  It  has  no  more  power  than  any  other 
stockholder  to  the  same  extent. 

This  court  did  not  consider  that  the  character  of  the  incorporation 
was  at  all  affected  by  the  exclusive  ownership  of  the  stock  by  the 
State.  And  they  say  that  the  case  of  the  Planters'  Bank  presented 
stronger  ground  of  defence  than  the  suit  against  the  Bank  of  the 
Commonwealth.  That  in  the  former  the  State  of  Georgia  was  not 
only  a  proprietor,  but  a  corporator;  and  that  in  the  latter  the  presi- 
dent and  directors  constituted  the  corporate  body.  And  yet  in  the 
case  of  the  Planters'  Bank  the  court  decided  the  State  could  only  be 
considered  as  an  ordinary  corporator,  both  as  it  regarded  its  powers 
and  responsibilities. 


I 


SECT.  VI.]  POINDEXTER   V.   GREENHOW.  469 

If  these  positions  be  correct,  is  there  not  an  end  to  this  contro- 
versy ?  If  the  Bank  of  the  Commonwealth  is  not  the  State,  nor  the 
agent  of  the  State  ;  if  it  possesses  no  more  power  than  is  given  to  it 
in  the  act  of  incorporation  and  precisely  the  same  as  if  the  stock 
were  owned  by  private  individuals,  —  how  can  it  be  contended  that  the 
notes  of  the  bank  can  be  called  bills  of  credit,  in  contradistinction 
from  the  notes  of  other  banks  ? 

If,  in  becoming  an  exclusive  stockholder  in  this  bank,  the  State 
imparts  to  it  none  of  its  attributes  of  sovereignty ;  if  it  holds  the 
stock  as  any  other  stockholder  would  hold  it,  —  how  can  it  be  said 
to  emit  bills  of  credit  ?  Is  it  not  essential,  to  constitute  a  bill  of 
credit  within  the  Constitution,  that  it  should  be  emitted  by  a  State  ? 
Under  its  charter  the  bank  has  no  power  to  emit  bills  which  have 
the  impress  of  the  sovereignty,  or  which  contain  a  pledge  of  its  faith. 
It  is  a  simple  corporation,  acting  within  the  sphere  of  its  corporate 
powers,  and  can  no  more  transcend  thera  than  any  other  banking 
institution.  The  State,  as  a  stockholder,  bears  the  same  relation  to 
the  bank  as  any  other  stockholder. 

The  funds  of  the  bank,  and  its  property  of  every  description,  are 
held  responsible  for  the  payment  of  its  debts ;  and  may  be  reached 
by  legal  or  equitable  process.  In  this  respect  it  can  claim  no  exemp- 
tion under  the  prerogatives  of  the  State. 

And  if,  in  the  course  of  its  operations,  its  notes  have  depreciated 
like  the  notes  of  other  banks,  under  the  pressure  of  circumstances, 
still,  it  must  stand  or  fall  by  its  charter.  In  this  its  powers  are  de- 
fined, and  its  rights,  and  the  rights  of  those  who  give  credit  to  it, 
are  guaranteed.  And  even  an  abuse  of  its  powers,  through  which 
its  credit  has  been  impaired  and  the  community  injured,  cannot  be 
considered  in  this  case. 

We  are  of  the  opinion  that  the  act  incorporating  the  Bank  of  the 
Commonwealth  was  a  constitutional  exercise  of  power  by  the  State 
of  Kentucky ;  and,  consequently,  that  the  notes  issued  by  the  bank 
are  not  bills  of  credit,  within  the  meaning  of  the  Federal  Constitutioi^ 
The  judgment  of  the  court  of  appeals  is  therefore  aflBrmed,  with  in* 
terest  and  costs.^ 

1  Mr.  Justice  Story  delivered  a  dissenting  opinion. 

In  PoiNDEXTER  V.  Grernhow,  114  U.  S.  283  (1885),  the  validity  of  certain  bonds 
of  the  State  of  Virginia  and  the  coupons  attached  thereto  was  called  in  question  on 
the  ground  that  they  were  bills  of  credit.  On  this  point  Mn.  Justice  Matthews,  in 
rendering  the  opinion  of  the  court,  uses  the  following  language :  — 

"  The  meaning  of  the  term  '  bills  of  credit,'  as  used  in  the  Constitution,  ha.s  been 
settled  by  decisions  of  this  court.  By  a  sound  rule  of  interpretation,  it  has  been  con- 
strued in  the  light  of  the  historical  circumstances  which  are  known  to  have  led  to  the 
adoption  of  the  clause  prohibiting  their  emission  by  the  States„and  in  view  of  the 
great  public  and  private  mi.'schiefs  experienced  iluring  and  prior  to  the  period  of  the 
War  of  Independence,  in  consequence  of  unrestrained  issues,  by  the  colonial  and  State 
governments,  of  paper  money,  based  alone  upon  credit.  The  definition  thus  deduced 
was  not  founded  on  the  abstract  meaning  of  the  words,  so  as  to  include  everything  in 
the  nature  of  an  obligation  to  pay  money,  reposing  on  the  public  faith,  and  subject 


473  THE   LEGISLATIVE   DEPARTMENT.  ,  [CHAP.  IV. 

to  future  redemption,  but  was  limited  to  those  particular  forms  of  evidences  of  debt, 
which  liad  been  so  abused  to  the  detriment  of  both  private  and  public  interests. 
Accordingly,  Chief  Justice  Marshall,  in  Craig  V.  Missouri,  4  Pet.  410,  432,  said,  that 
'  bills  of  credit  signify  a  paper  medium  intended  to  circulate  between  individuals, 
aud  between  government  and  individuals,  for  the  ordinary  purposes  of  society.' 
This  dtfiuitiou  was  made  more  e.xact  by  merely  expressing,  however,  its  implications, 
in  Briscoe  o.  The  Bank  of  Kentucky,  II  Pet.  257,  314,  where  it  was  said:  'The  defi- 
nition, then,  which  does  include  all  classes  of  bills  of  credit,  emitted  by  the  colonies  or 
States,  is  a  paper  issued  by  the  sovereign  power,  containing  a  pledge  of  its  faith  and 
designed  to  circulate  as  money.'  Aud  again,  p.  318,  '  To  constitute  a  bill  of  credit, 
witliin  the  Constitution,  it  niu^t  be  issued  by  a  State,  on  the  faith  of  the  State,  and  be 
designed  to  circulate  as  money.  It  must  be  a  paper  which  circulates  on  the  credit  of 
the  State,  and  is  so  received  and  used  in  the  ordinary  business  of  life.'  The  definition 
was  repeated  in  Darrington  v.  The  Bank  of  Alabama,  13  How.  12. 

"  It  is  very  plain  to  as  that  the  coupons  in  question  are  not  embraced  within  these 
terms.  They  are  not  bilk  of  credit  in  the  sense  of  this  constitutional  prohibition.  They 
are  issued  by  the  State,  it  is  true.  They  are  promises  to  pay  money.  Their  payment 
aud  redemption  are  based  on  the  credit  of  the  State,  but  they  were  not  emitted  by  the 
State  in  the  sense  in  which  a  government  emits  its  treasury  notes,  or  a  bank  its  bank 
notes  —  a  circulating  medium  or  paper  currency  —  as  a  substitute  for  money.  Aud 
tiiere  is  nothing  on  the  face  of  the  instruments,  nor  in  their  form  or  nature,  nor  in  the 
terms  of  the  law  which  authorized  their  issue,  nor  in  the  circumstances  of  their  crea- 
tion or  u.se,  as  shown  by  the  record,  on  which  to  found  an  inference  that  these  coupons 
were  designed  to  circulate,  in  the  common  transactions  of  business,  as  money,  nor 
tliat  in  fact  they  were  so  used.  The  only  feature  relied  on  to  show  such  a  design  or 
to  prove  such  a  use  is,  that  they  are  made  receivable  in  payment  of  taxes  and  other 
dues  to  the  State.  From  this  it  is  argued  that  they  would  obtain  such  a  circulation 
from  hand  to  hand  as  money,  as  the  demand  for  them,  based  upon  sncli  a  quality, 
would  naturally  give.  But  this  falls  far  short  of  their  fitness  for  general  circulation 
in  the  community,  as  a  representative  and  substitute  for  money,  in  the  common  trans- 
actions of  busine.<;s,  which  is  necessary  to  bring  them  within  the  constitutional  prohibi- 
tion against  liillsof  credit.  The  notes  of  the  Bank  of  the  State  of  Arkansas,  which  were 
the  subject  of  controversy  in  Woodruff  v.  Trapnall,  10  How.  190,  were,  bv  law,  re- 
ceivable by  the  State  in  payment  of  all  dues  to  it,  and  this  circumstance  was  not  sup- 
posed to  make  them  bills  of  credit.  It  is  true,  however,  that  in  that  case  it  was  held 
they  were  not  so  because  they  were  not  issued  by  the  State  and  in  its  name,  although 
the  entire  stock  of  the  bank  was  owned  by  the  State,  which  furnished  the  whole  capi- 
tal, and  was  entitled  to  all  the  profits.  In  this  case  the  coupons  were  issued  by  the  State 
of  Virginia  and  in  its  name,  and  were  obligations  based  on  its  credit,  and  which  it 
had  agreed  as  one  mode  of  redemption,  to  receive  in  payment  of  all  dues  to  itself  in 
the  hands  of  any  holder ;  but  they  were  not  issued  as  and  for  money,  nor  was  this 
quality  impressed  upon  them  to  fit  them  for  use  as  money,  or  with  the  design  to 
facilitate  tiieir  circulation  as  such.  It  was  conferred,  as  is  apparent  from  all  the  cir- 
cumstances of  their  creation  and  issue,  merely  as  an  assurance,  by  way  of  contract 
with  the  holder,  of  the  certainty  of  their  due  redemption  in  the  ordinary  transactions 
between  the  State  treasury  and  the  taxpayers.  They  do  not  become  receivable  in 
payment  of  taxes  till  they  are  due,  and  the  design,  we  are  bound  to  presume,  was 
that  they  would  be  paid  at  maturity.  This  necessarily  excludes  the  idea  that  thej 
were  intended  for  circulation  at  all." 


I 


SECT.  VII.]  WEAVER   V.   FEGELT.  471 


Section   VII.  — Weights  and  Measures. 


WEAVER  V.  FEGELY. 
29  Pennsylvania  State,  27.     1857. 

Error  to  the  Common  Pleas  of  Berks  County. 

This  was  an  action  on  the  case  in  assumpsit,  brought  by  Fegely 
&  Brother  against  Charles  B,  Weaver,  to  recover  the  price  of  a  large 
quantity  of  anthracite  coal  sold  and  delivered  to  the  defendants  by 
the  ton.  The  only  matter  in  dispute  between  the  parties  was, 
whether  the  ton  consisted  of  2,000  pounds,  or  2,240  pounds  avoirdu- 
pois. The  plaintiffs  contended  for  the  former,  the  defendant  for  the 
latter. 

The  court  below  (Jones,  P.  J.)  decided  that  2,000  pounds  con- 
stituted a  ton,  and  directed  the  jury  to  make  up  their  verdict 
accordingly. 

The  jury  found  for  the  plaintiff  $167.95,  and  judgment  was  entered 
on  the  verdict.  The  defendant  thereupon  sued  out  this  writ,  and 
assigned  for  error  :  — 

1.  The  court  erred  in  charging  the  jury  as  follows:  "No  act  is 
produced  by  which  Congress  has  at  any  time  declared  how  many 
pounds  shall  make  a  ton.  It  is  strange  if  there  be  not  such  an 
act,  but  we  know  of  none  such,  and  therefore  treat  the  question  as 
though  there  was  none." 

2.  "  The  several  States  may  legislate  upon  the  subject  as  long  as 
its  ground  is  not  covered  by  national  legislation.  Pennsylvania  has 
so  legislated  with  regard  to  the  ton,  and  we  believe  her  action  to  be 
constitutional  and  valid  in  the  absence  of  national  legislation." 

3.  "  The  plaintiff  in  this  case  is  entitled  to  recover  for  79  tons, 
1,286  pounds  of  coals,  sold  and  delivered,  which  is  the  Pennsylvania 
measure  of  the  same,  at  2,000  pounds  to  the  ton,  with  interest  from 
the  19th  of  March,  1855,  to  this  day." 

The  opinion  of  the  court  was  delivered  by 

Lewis,  C.  J.  The  question  raised  in  this  case  was  decided  in 
Evans  v.  ]\Iyers,  1  Casey,  114.  It  was  not  then  supposed,  by  any 
one,  that  Congress  had  exercised  their  constitutional  power  to  fix 
a  standard  of  weights  and  measures.  In  the  decision  since  pro- 
nounced by  Judge  Grier,  in  Holt  v.  The  Steamer  Miantonomi,  it 
is  fully  conceded  that  they  have  not  hitherto  exercised  that  power. 
The  same  concession  is  made  by  Judge  Story,  in  his  Commentaries 
on  the  Constitution.  The  omission  to  exercise  this  power  was  in  fact 
made  a  matter  of  complaint  and  remonstrance  by  the  legislature  of 


472  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

Pennsylvania,  in  their  resolutions  of  the  9th  April,  1834,  in  which 
the  general  government  was  urged  to  perform  this  obligation.  The 
act  of  assembly  of  the  15th  April,  1834,  is  based  upon  the  neglect 
of  the  Federal  legislature  in  this  particular,  and  it  is,  in  that  act, 
expressly  provided  that  whenever  Congress  shall  establish  a  standard 
of  weights  and  measures,  the  standards  named  in  the  State  law  shall 
be  made  to  conform  to  the  act  of  Congress.  It  is  an  error  to  suppose 
that  either  the  resolution  of  Congress  of  the  14th  June,  1836,  or  the 
acts  of  19th  May,  1828,  and  30th  August,  1842,  establish  a  standard 
of  weights  and  measures,  to  regulate  the  business  transactions  of  the 
people.  The  resolution  of  1836  was  nothing  more  than  a  preliminary 
step,  looking  to  the  exercise  of  the  power  at  a  future  day.  The  act 
of  1828  had  relation  merely  to  the  operations  of  the  United  States 
mint ;  and  the  act  of  1842  was  limited  exclusively  to  the  collection 
of  the  public  revenue,  under  the  tariff  of  that  year.  There  is  there- 
fore no  foundation  whatever  for  the  allegation  that  Congress  has 
exercised  this  power,  and  that  there  is  therefore  any  actual  conflict 
between  the  State  and  National  legislation  on  this  subject. 

But  it  seems  to  be  thought,  by  the  plaintiff  in  error,  that  the 
mere  grant  of  the  power  to  Congress,  although  not  exercised  by 
that  body,  extinguishes  it  in  the  States.  This  is  contrary  to  the 
rule  of  construction  adopted  by  all  approved  authorities.  Alex- 
ander Hamilton,  who  was  not  likely  to  relinquish  Federal  authority 
where  he  could  maintain  it  with  any  show  of  reason,  states  the  rule 
thus  :  "  This  exclusive  delegation,  or  rather  this  alienation  of  State 
sovereignty,  exists  only  in  three  cases  :  1st,  Where  the  Constitution 
in  express  terms  granted  an  exclusive  authority  to  the  Union  ;  2d, 
Where  it  granted  an  authority  to  the  Union,  and  at  the  same  time 
prohibited  the  States  from  exercising  the  like  authority  ;  3d,  Where  it 
granted  an  authority  to  the  Union  to  which  a  similar  authority  in 
the  States  would  be  absolutely  and  totally  contradictory  and  repug- 
nant." It  is  not  pretended  that  the  grant  of  the  power  to  regulate 
weights  and  measures  is  exclusive  in  express  terms,  nor  that  the 
States  are  expressly  prohibited  from  exercising  it.  The  State  sov- 
ereignties are  therefore  to  be  extinguished,  as  regards  this  subject,  if 
at  ail,  by  mere  imjolication.  But  that  implication  can  only  arise 
where  the  State  authority  is  ^'absolutely  and  totally  contradictory  and 
repugnant "  to  the  power  delegated  to  Congress.  These  terms  nec- 
essarily imply  the  pre-existence  of  something  to  contradict  or  oppose. 
But  there  is  nothing  whatever  either  in  the  Constitution  or  in  the 
acts  of  Congress,  which  the  act  of  assembly  in  any  respect  contra- 
venes or  opposes.  It  is  therefore  perfectly  constitutional.  The  true 
rule  in  this  respect  was  correctly  stated  by  Chief  Justice  Tilghman, 
in  the  celebrated  case  of  Moore  v.  Houston,  3  S.  &  R.  179: 
"Where  the  authority  of  the  States  is  taken  away  by  implication, 
they  may  continue  to  act  until  the  United  States  exercise  their 
power,   because,    until    such    exercise,    there   can   be   no   incompati- 


SECT.  VII.]  WEAVER    V.    FEGELY,  473 

bility."  The  decision  of  the  Supreme  Court  of  Pennsylvania,  in  the 
case' referred  to,  was  afifirmed  in  the  Supreme  Court  of  the  United 
States.  The  frequent  application  of  the  principle  settled  in  that 
case  is  familiar  to  all  persons  conversant  with  the  operations  of  our 
government.  Congress  has  power  to  provide  for  calling  forth  the 
militia,  but  the  States  may  do  the  same,  so  that  their  enactments  do 
not  conflict  with  the  acts  of  Congress.  Moore  v.  Houston,  3  S.  &  R. 
170 ;  s.  c.  5  Wheat.  1.  Congress  may  establish  uniform  bankrupt 
laws,  but  the  States  may  exercise  the  same  power  within  their  re- 
spective jurisdictions,  so  long  as  they  do  not  conflict  with  existing 
regulations  of  Congress.  Sturges  v.  Crowninshield,  4  Wheat.  122; 
Ogden  V.  Saunders,  12  Wheat.  213  ;  Boyle  v.  Zacharie,  6  Pet.  348. 
Congress  may  exercise  the  taxing  power,  and  so  may  the  States  exer- 
cise general  powers  of  the  like  kind.  Congress  have  power  to  punish 
for  counterfeiting  the  coin,  and  had  power  to  punish  for  counterfeit- 
ing the  notes  of  the  Bank  of  the  United  States,  and  the  States 
exercised  the  same  power.  Fox  v.  Ohio,  5  How.  432  ;  White  v.  Com- 
monwealth, 4  Binn.  418;  Livingston  v.  Van  Ingen,  9  Johns.  Rep.  267. 
Congress  may  grant  exclusive  privileges  for  limited  times  to  authors 
and  inventors.  The  states  did  the  same  until  Congress  exercised  the 
power.  9  Johns.  267.  Congress  have  power  to  provide  for  the  recap- 
tion of  fugitive  slaves.  The  States  have  the  same  power,  so  long  as 
their  enactments  are  not  in  conflict  with  the  acts  of  Congress  on  the 
subject.  It  is  true  that  this  principle  was  denied  by  Justice  Story, 
in  Prigg  v.  Pennsylvania,  16  Peters,  539.  But  that  opinion  was  on  a 
question  which  did  not  arise  in  the  case.  It  was  one  of  the  most 
mischievous  heresies  ever  promulgated.  It  was  never  received  as  the 
true  construction  of  the  Federal  Constitution,  and  the  more  recent 
case  of  Moore  v.  Illinois,  14  How.  Rep.  13,  shows  that  it  was  promul- 
gated without  the  sanction  of  a  majority  of  the  court. 

The  United  States  courts  have  jurisdiction  over  controversies  be- 
tween citizens  of  different  States,  but  no  one  has  ever  doubted  the 
jurisdiction  of  the  State  courts  over  the  same  parties.  To  hold  that 
the  mere  grant  of  power  to  the  Federal  government  over  any  snl)ject 
extinguishes  State  authority  over  the  same  subject,  would  invalidate 
thousands  of  judgments  rendered  by  State  courts,  in  controversies 
between  citizens  of  different  States.  In  every  State  in  the  Union 
weights  and  measures  have  been  constantly  governed  either  by  a 
standard  established  by  a  State  statute,  or  by  the  common  law  of  the 
State.  The  power  of  each  State  to  establish  its  own  common  law  on 
this  subject  has  never  been  denied.  If  the  States  have  this  power, 
they  certainly  have  the  power  to  enact  statutes.  The  power  being 
acknowledged,  it  is  not  for  the  Federal  government  to  interfere  with 
the  manner  of  exercising  it.  To  deny  the  existence  of  this  authority 
now,  would  overturn  the  practice  which  has  been  uniformly  acted  on 
by  all  the  States  during  the  whole  period  of  their  political  existence. 
It  would  throw  all  past  transactions  into  confusion,  and  leave  the 


474  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

business  community  no  guide  whatever  for  the  future  ;  for  there  is  no 
certainty  that  Congress  will  ever  deem  it  expedient  to  fix  a  standard. 
Chief  Justice  Tilghman,  in  The  Farmers'  and  Mechanics'  Bank  v. 
Smith,  3  S.  &  R.  69,  stated  a  fact  which  no  one  has  ever  denied, 
when  he  declared  that  "  the  States  have  regulated  weights  and  meas- 
ures at  their  pleasure,"  "without  objection."  Their  right  to  do  so, 
until  Congress  shall  act  on  the  subject,  admits  of  no  doubt. 

Judgment  affirmed. 


Section  VIII.  —  Counterfeiting. 


UNITED   STATES   v.   MARIGOLD. 
9  Howard,  560  ;  18  Curtis,  261.     1849. 

Daniel,  J.,  delivered  the  opinion  of  the  court. 

[Defendant  was  charged  in  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  of  New  York  with  having  brought  into  the 
United  States  from  a  foreign  place  certain  counterfeit  coin  made 
in  the  resemblance  and  similitude  of  certain  coins  of  the  United 
States,  knowing  the  same  to  be  counterfeit,  and  intending  thereby  to 
defraud  divers  persons  unknown,  and  also  with  having  passed  such 
counterfeit  coin  with  intent  to  defraud,  all  in  violation  of  section  20 
of  the  act  of  Congress  of  March  3,  1825,  entitled  "  An  Act  more 
effectually  to  provide  for  the  punishment  of  certain  crimes  against 
the  United  States."  The  defendant  demurred  to  the  indictment,  and 
the  judges  certified  a  division  of  opinion  on  the  following  questions : 

"  First.  Whether  Congress,  under  and  by  the  Constitution,  had 
power  and  authority  to  enact  so  much  of  the  said  twentieth  section 
_  /  of  the  said  Act  as  relates  to  bringing  into  the  United  States  coun- 
terfeit coins. 

"  Second.  Whether  Congress,  under  and  by  virtue  of  the  Consti- 
tution, had  power  to  enact  so  much  of  the  said  twentieth  section  as 
relates  to  uttering,  publishing,  passing,  and  selling  of  the  counterfeit 
coins  therein  specified."] 

The  inquiry  first  propounded  upon  this  record  points,  obviously, 
to  the  answer  which  concedes  to  Congress  the  power  here  drawn  in 
question.  Congress  are,  by  the  Constitution,  vested  with  the  power 
to  regulate  commerce  with  foreign  nations  ;  and  however,  at  periods 
of  high  excitement,  an  application  of  the  terms  "to  regulate  com- 
merce "  such  as  would  embrace  absolute  prohibition  may  have  been 
questioned,  yet,  since  the  passage  of  the  embargo  and  non-intercourse 
laws,  aud  the  repeated  judicial  sanctions  those  statutes  have  received, 


SECT.  VIII.]  UNITED    STATES   V,    MARIGOLD.  475 

it  can  scarcely,  at  this  day,  be  open  to  doubt  that  every  subject  fall- 
ing within  the  legitimate  sphere  of  corainercial  regulation  may  be 
partially  or  wholly  excluded,  when  either  measure  shall  be  demanded 
by  the  safety  or  by  the  important  interests  of  the  entire  nation.  Such 
exclusion  cannot  be  limited  to  particular  classes  or  descriptions  of 
commercial  subjects;  it  may  embrace  manufactures,  bullion,  coin,  or 
any  other  thing.  The  power  once  conceded,  it  may  operate  on  any 
and  every  subject  of  commerce  to  which  the  legislative  discretion 
may  apply  it. 

But  the  twentieth  section  of  the  act  of  Congress  of  IMarch  3,  1825, 
or  rather  those  provisions  of  that  section  brought  to  the  view  of  this 
court  by  the  second  question  certified,  are  not  properly  referable  to 
commercial  regulations,  merely  as  such;  nor  to  considerations  of 
ordinary  commercial  advantage.  They  appertain  rather  to  the  exe- 
cution of  an  important  trust  invested  by  the  Constitution,  and  to  the 
obligation  to  fulfil  that  trust  on  the  part  of  the  government,  namely, 
the  trust  and  the  duty  of  creating  and  maintaining  a  uniform  and 
pure  metallic  standard  of  value  throughout  the  Union.  The  power 
of  coining  money  and  of  regulating  its  value  was  delegated  to  Con- 
gress by  the  Constitution  for  the  very  purpose,  as  assigned  by  the 
framers  of  that  instrument,  of  creating  and  preserving  the  uniformity 
and  purity  of  such  a  standard  of  value  ;  and  on  account  of  the  im- 
possibility which  was  foreseen  of  otherwise  preventing  the  inequali- 
ties and  the  confusion  necessarily  incident  to  different  views  of 
policy,  which  in  different  communities  would  be  brought  to  bear  on 
this  subject.  The  power  to  coin  money  being  thus  given  to  Congress,  I 
founded  on  public  necessity,  it  must  carry  with  it  the  correlative  i 
power  of  protecting  the  creature  and  object  of  that  power.  It  cannot 
be  imputed  to  wise  and  practical  statesmen,  nor  is  it  consistent  with 
common  sense,  that  they  should  have  vested  this  high  and  exclusive 
authority,  and  with  a  view  to  objects  partaking  of  the  magnitude  of 
the  authority  itself,  only  to  be  rendered  immediately  vain  and  useless, 
as  must  have  been  the  case  had  the  government  been  left  disabled 
and  impotent  as  to  the  only  means  of  securing  the  objects  in 
contemplation. 

If  the  medium  which  the  government  was  authorized  to  create  and 
establish  could  immediately  be  expelled,  and  substituted  by  one  it  . 
had  neither  created,  estimated,  nor  authorized,  —  one  possessing  no  ' 
intrinsic  value,  —  then  the  power  conferred  by  the  Constitution 
would  be  useless,  wholly  fruitless  of  every  end  it  was  designed  to 
accomplish.  Whatever  functions  Congress  are,  by  the  Constitu- 
tion, authorized  to  perform,  they  are,  when  the  public  good  requires  it, 
bound  to  perform  ;  and  on  this  principle,  having  emitted  a  circulating 
medium,  a  standard  of  value  indispensable  for  the  purposes  of  the 
community,  and  for  the  action  of  the  government  itself,  they  are  ac- 
cordingly authorized  and  bound  in  duty  to  prevent  its  debasement 
and  expulsion,  and  the  destruction  of  the  general   confidence  and 


? 


476  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

convenience,  by  the  influx  and  substitution  of  a  spurious  coin  in  lieu 
\  of  the  constitutional  currency.     We  admit  that  the  clause  of  the  Con- 
stitution authorizing  Congress  to  provide  for  the  punishment  of  coun- 
terfeiting the  securities  and  current  coin  of  the  United   States  does 
not  embrace  within  its  language  the  offence  of  uttering  or  circulating 
spurious  or  counterfeited  coin  (the  term  "  counterfeit,"  both  by  its 
etymology  and  common  intendment,  signifying  the  fabrication  of  a 
false  image  or  representation) ;  nor  do  we  think  it  necessary  or  reg- 
ular to  seek  the  foundation  of  the  offence  of  circulating  spurious  coin, 
or  for  the  origin  of  the  right  to  punish  that  offence,  either  in  the  sec- 
tion of  the  statute  before  quoted,  or  in  this  clause  of  the  Constitution. 
,  'We  trace  both  the  offence  and  the  authority  to  punish  it  to  the  power 
/  given  by  the  Constitution  to  coin  money,  and  to  the  correspondent 
and  necessary  power  and  obligation  to  protect  and  to  preserve  in  its 
I  purity   this  constitutional    currency  for  the  benefit  of   the    nation. 
Whilst  we  hold  it  a  sound  maxim  that  no  powers  should  be  conceded 
to  the  Federal  government  which  cannot  be  regularly  and  legitimately 
found  in  the  charter  of  its  creation,  we  acknowledge  equally  the  obli- 
gation to  withhold  from  it  no  power  or  attribute  which,  by  the  same 
/  charter,  has  been  declared  necessary  to  the  execution  of  expressly 
/    granted    powers,   and   to   the  fulfilment   of   clear   and    well-defined 
duties. 

It  has  been  argued  that  the  doctrines  ruled  in  the  case  of  Fox  v. 
The  State  of  Ohio,  5  How.  410,  are  in  conflict  with  the  positions  just 
stated  in  the  case  before  us.  We  can  perceive  no  such  conflict,  and 
think  that  any  supposition  of  the  kind  must  flow  from  a  misappre- 
hension of  one  or  both  of  these  cases.  The  case  of  Fox  v.  The  State 
of  Ohio  involved  no  question  whatsoever  as  to  the  powers  of  the 
Federal  government  to  coin  money  and  regulate  its  value ;  nor  as  to 
the  power  of  that  government  to  punish  the  offence  of  importing  or 
circulating  spurious  coin  ;  nor  as  to  its  power  to  punish  for  counter- 
feiting the  current  coin  of  the  United  States.  That  case  was  simply 
■;'  a  prosecution  for  a  private  cheat  practised  by  one  citizen  of  Ohio  upon 
another,  within  the  jurisdiction  of  the  State,  by  means  of  a  base  coin 
in  the  similitude  of  a  dollar,  —  an  offence  denounced  by  the  law  of 
Ohio  as  obnoxious  to  punishment  by  confinement  in  the  State  peni- 
tentiary. And  the  question,  and  the  only  one,  brought  up  for  the 
examination  of  this  court  was,  whether  this  private  cheat  couM  ba 
punished  by  the  State  authorities, 'on  accoiintof  the  immediate  in- 
struiuent  of  its  perpetration  having  been  a  base  coin,  in  the  similitude 
of  a  dollar  of  the  coinage  of  the  United  States. 

The  stress  of  the  argument  of  this  court  in  that  case  was  to  show 
that  the  right  of  the  State  to  punish  that  cheat  had  not  been  taken 
from  her  by  the  express  terms,  nor  by  any  necessary  implication,  of 
the  Constitution.  It  claimed  for  the  State  neither  the  power  to  coin 
money  nor  to  regulate  the  value  of  coin  ;  but  simply  that  of  pro- 
tecting her  citizens  against  frauds  committed  upon  them  within  her 


SECT,  vill.] 


UNITED    STATES   V.   MARIGOLD. 


477 


jurisdiction,  and  indeed,  as  a  means  auxiliary  thereto,  of  relying  upon 
the  true  standard,  of  the  coin  as  established  and  regulated  under  the 
authority  of  Congress.  In  illustration  of  the  existence  of  the  right 
just  mentioned  in  the  State,  and  in  order  merely  to  show  that  it  had 
not  been  taken  from  her,  it  was  said  that  the  punishment  of  such  a 
cheat  did  not  fall  within  the  express  language  of  those  clauses  of  the- 
Constitution  which  gave  to  Congress  the  right  of  coining  money  and 
of  regulating  its  value,  or  of  providing  for  the  punishment  of  counter- 
feiting the  current  coin.  It  was  also  said  by  this  court,  that  the  fact 
of  passing  or  putting  off  a  base  coin  did  not  fall  within  the  language  of  / 
those  clauses  of  the  Constitution  ;  for  this  fact  fabricated,  altered,  or  ' 
changed  nothing,  but  left  the  coins,  whether  genuine  or  spurious, 
precisely  as  before.  But  this  court  have  nowhere  said  that  an  offence 
cannot  be  committed  against  the  coin  or  currency  of  the  United 
States,  or  against  that  constitutional  power  which  is  exclusively 
authorized  for  public  uses  to  create  that  currency,  and  which  for  the 
same  public  uses  and  necessities  is  authorized  and  bound  to  preserve 
it;  nor  have  they  said  that  the  debasement  of  the  coin  would  not  be 
as  effectually  accomplished  by  introducing  and  throwing  into  circula- 
tion a  currency  which  was  spurious  and  similated,  as  it  would  be  by 
actually  making  counterfeits,  —  fabricating  coin  of  inferior  or  base 
metal.  On  the  contrary,  we  think  that  either  of  these  proceedings 
would  be  equally  in  contravention  of  the  right  and  of  the  obligation 
appertaining  to  the  government  to  coin  money,  and  to  protect  and 
preserve  it  at  the  regulated  or  standard  rate  of  value. 

With  a  view  of  avoiding  conflict  between  the  State  and  Federal 
jurisdictions,  this  court,  in  the  case  of  Fox  v.  The  State  of  Ohio,  have 
taken  care  to  point  out  that  the  same  act  might,  as  to  its  character 
and  tendencies,  and  the  consequences  it  involved,  constitute  an  offence  -7 
against  both  the  State  and  Federal  governments,  and  might  draw  to 
its  commission  the  penalties  denounced  by  either,  as  appropriate  to  J 
its  character  in  reference  to  each.     We  think  this  distinction  sound,  ; 
as  we  hold  to  be  the  entire  doctrines  laid  down  in  the  case  above  men- 
tioned, and  regard  them  as  being  in  nowise  in  conflict  with  the  con- 
clusions adopted  in  the  present  case. 

We  therefore  order  it  to  be  certified  to  the  Circuit  Court  of  the 
United  States  for  the  Northern  District  of  New  York,  in  answer  to 
the  questions  propounded  by  that  court :  — 

1.  That  Congress  had  power  and  authority,  under  the  Constitu. 
tion,  to  enact  so  much  of  the  twentieth  section  of  the  act  of  March  3, 
1825,  entitled  "  An  Act  more  effectually  to  provide  for  the  punishment 
of  certain  crimes  against  the  United  States,  and  for  other  purposes," 
as  relates  to  bringing  into  the  United  States  counterfeit  coins. 

2.  That  Congress,  under  and  by  virtue  of  the  Constitution,  had 
power  to  enact  so  much  of  the  said  twentieth  section  as  relates  to  the 
uttering,  publishing,  passing,  and  selling  of  the  counterfeit  coin 
therein  specified. 


-Kv, 


w 


478  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

Section  IX.  —  Post-Offices  and  Post-Roads. 


In   re   PvAPIER. 

143  United  States,  110.     1892. 

[Eapier  and  others  were  arrested  under  indictments  in  Federal 

courts  charged  with  violation  of  provisions  of   the  United  States 

statutes  making  it  criminal  to  deposit  or  cause  to  be  deposited  in 

the  mails  any  letter,  postal  card,  or  circular  concerning  any  lottery, 

I  or  any  newspaper  containing  any  advertisement  of  any  lottery.] 

Mk.  Chief  Justice  Fuller  delivered   the  opinion  of  tl;e  court. 

These  are  applications  for  discharge  by  writ  of  habeas  corjncs 
from  arrest  for  alleged  violations  of  an  act  of  Congress,  approved 
September  19,  1890,  entitled  "  An  Act  to  amend  certain  sections  of 
the  Revised  Statutes  relating  to  lotteries,  and  for  other  purposes." 
26  Stat.  465. 

The  question  for  determination  relates  to  the  constitutionality  of 

section  3894  of  the  Revised  Statutes  as  amended  by  that  act.     In 

/  jEx  parte  Jackson,  96  U.  S.  727,  it  was  held  that  the  power  vested 

in   Congress  to  establish  post-offices    and  post-roads   embraced  the 

regulation   of  the   entire   postal   system  of   the  country,  and  that 

under  it  Congress  may  designate  what  may  be  carried  in  the  mail 

;    and  what  excluded;  that   in    excluding  various    articles   from    the 

^  mails  the  object  of  Congress  is  not  to  interfere  with  the  freedom 

J  of  the  press  or  with  any  other  rights  of  the  people,  but  to  refuse  the 

/  facilities  for  the  distribution  of  matter  deemed  injurious  by  Con- 

I    gress  to  the  public  morals;  and  that  the  transportation  in  any  other 

\way  of  'matters  excluded  from  the  mails  would  not  be   forbidden. 

Unless  we  are  prepared  to  overrule  that  decision,  it  is  decisive  of 

the  question  before  us. 

It  is  argued  that  in  Jackson's  case  it  was  not  urged  that  Congress 
had  no  power  to  exclude  lottery  matter  from  the  mails;  but  it  is 
conceded  that  the  point  of  want  of  power  was  passed  upon  in  the 
opinion.  This  was  necessarily  so,  for  the  real  question  was  the 
existence  of  the  power  and  not  the  defective  exercise  of  it.  And  it 
is  a  mistake  to  suppose  that  the  conclusion  there  expressed  waa^tf^ 
arrived  at  without  deliberate  consideration.  It  is  insisted  that  tlie 
express  powers  of  Congress  are  limited  in  their  exercise  to  the 
objects  for  which  they  were  intrusted,  and  that  in  order  to  justify 
^  Congress  in  exercising  any  incidental  or  implied  powers  to  carry 
into  effect  its  express  authority,  it  must  appear  that  there  is  some 
relation  between  the  means  employed  and  the  legitimate  end.     This 


SECT.  IX.]  IN   RE   RAPIER.  479 

is  true,  but  while  the  legitimate  end  of  the  exercise  of  the  power  in  j 
question  is  to  furnish  mail  facilities  for  the  people  of  the  United  / 
States,  it  is  also  true  that  mail  facilities  are  not  required  to  be'*|fv^ 
furnished  for  every  purpose. 

The  States  before  the  Union  was  formed  could  establish  post- 
olhces  and  post-roads,  and  in  doing  so  could  bring  into  play  the 
police  power  in  the  protection  of  their  citizens  from  the  use  of  the 
means  so  provided  for  purposes  supposed  to  exert  a  demoralizing 
influence  upon  the  people.  When  the  power  to  establish  post- 
offices  and  post-roads  was  surrendered  to  the  Congress  it  was  as  a 
complete  power,  and  the  grant  carried  with  it  the  right  to  exercise 
all  the  powers  which  made  that  power  effective.  It  is  not  neces- 
sary that  Congress  should  have  the  power  to  deal  with  crime  or 
imuiorality  within  the  States  in  order  to  maintain  that  it  possesses 
the  power  to  forbid  the  use  of  the  mails  in  aid  of  the  perpetration  V 
of  crime  or  immorality. 


We  cannot  regard  the  right  to  operate  a  lottery  as  a  fundamental  r 
right  infringed   by  the  legislation  in  question ;  nor  are  we  able  to  i 
'see  that  Congress  can  be  held,  in  its  enactment,  to  have  abridged  | 
the   freedom    of   the    press.     The  circulation  of  newspapers  is  not 
prohibited,  but  the  government  declines  itself  to  become  an  agent 
in  the  circulation  of  printed  matter  which  it  regards  as  injurious  to  I 
the  people.     The  freedom  of  communication  is  not  abridged  within 
the  intent  and  meaning  of  the  constitutional  provision  unless  Con- 
gress is  absolutely  destitute  of  any  discretion  as  to  what  shall  or 
shall  not  be  carried  in  the  mails,  and  compelled  arbitrarily  to  assist 
in  the  dissemination  of  matters  condemned  by  its  judgment,  through 
the  governmental  agencies  which  it  controls.     That  power  may  be 
abused  furnishes  no  ground  for  a  denial  of  its  existence,  if  govern- 
ment is  to  be  maintained  at  all. 

In  short,  we  do  not  find  sufficient  grounds  in  the  arguments  of 
counsel,  able  and  exhaustive  as  they  have  been,  to  induce  us  to 
change  the  views  already  expressed  in  the  case  to  which  we  have 
referred.     We  adhere  to  the  conclusion  therein  announced.^ 

1  In  Public  Clearing  House  v.  Coyne,  194  U.  S.  497,  24  Sup.  Ct.  Kep.  789 
(1904),  it  was  held  that  a  statute,  authorizing  the  Postmaster  General  upon  evidence 
satisfactory  to  him  that  any  person  or  company  is  engaged  in  conducting  any  lottery  or 
any  other  scheme  or  device  for  obtaining  money  or  ])roperty  tlirough  the  mails  by  means 
of  false  or  fraudulent  pretenses  to  instruct  postmasters  to  return  letters  directed  to 
such  person  or  company  to  the  office  at  which  they  were  originally  mailed  with  the 
word  "  Fraudulent "  plainly  written  or  stamped  on  the  outside  thereof,  was  constitu- 
tional. The  decision  is  put  upon  the  ground  that  the  postal  service  is  not  a  necessary 
function  of  the  government  but  is  a  public  function  assumed  and  established  by  Con- 
gress for  the  general  welfare,  and  that  Congress  may  designate  what  may  be  carried  in 
the  mails  and  what  excluded ;  and  further  that  the  action  of  the  Postmaster  General 
in  enforcing  the  statute  in  any  case  is  not  subject  to  judicial  review. 


480  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV, 


Section  X.  —  Copyrights  and  Patents. 


WHEATON  V.   PETERS. 
8  Peters,  591 ;  11  Curtis,  223.     1834. 

McLean,  J.,  delivered  the  opinion  of  the  court. 

[Complainants  (Wheaton  and  another)  sought  to  enjoin  defendants 
from  publishing  a  series  of  volumes  called  "  Condensed  Reports  of 
Cases  in  the  Supreme  Court  of  the  United  States,"  containing  deci- 
sions reported  by  said  Wheaton  as  official  reporter  of  the  court,  and 
published  and  copyrighted  by  him.  Defendants  denied  that  their 
publication  was  an  infringement,  and  also  denied  that  complainants 
had  complied  with  all  the  requisites  to  the  vesting  of  any  right 
under  the  act  of  Congress.  The  bill  of  complaint  was  dismissed  in 
the  lower  court  and  complainants  appeal.] 

Some  of  the  questions  which  arise  in  this  case  are  as  novel,  in 
this  country,  as  they  are  interesting.  But  one  case  involving 
similar  principles,  except  a  decision  by  a  State  court,  has  occurred; 
and  that  was  decided  by  the  Circuit  Court  of  the  United  States  for 
the  District  of  Pennsylvania,  from  whose  decree  no  appeal  was 
taken. 

The  right  of  the  complainants  must  be  first  examined.  If  this 
right  shall  be  sustained  as  set  forth  in  the  bill,  and  the  defendant5? 
shall  be  proved  to  have  violated  it,  the  court  will  be  bound  to  give 
the  appropriate  redress. 

The  complainants  assert  their  right  on  two  grounds. 

First,  under  the  common  law. 

Secondly,  under  the  acts  of  Congress. 

And  they  insist,  in  the  first  place,  that  an  author  was  entitled, 
at  common  law,  to  a  perpetual  property  in  the  copy  of  his  works, 
and  in  the  profits  of  their  publication;  and  to  recover  damages  for 
its  injury,  by  an  action  on  the  case,  and  to  the  protection  of  a  court 
^f  equity. 

In  support  of  this  proposition,  the  counsel  for  the  complainants 
have  indulged  in  a  wide  range  of  argument,  and  have  shown  great 
industry  and  ability.  The  limited  time  allowed  for  the  preparation 
of  this  opinion  will  not  admit  of  an  equally  extended  consideration 
of  the  subject  by  the  court. 

Perhaps  no  topic  in  England  has  excited  more  discussion  among 
literary  and  talented  men,  than  that  of  the  literary  property  of 
authors.     So  engrossing  was  the  subject,  for  a  long  time,  as  to  leave 


SECT.  X.]  WHEATON    V.    PETERS.  "  481 

few  neutrals,  among  those  who  were  distinguished  for  their  learn- 
ing and  ability.  At  length  the  question,  whether  the  copy  of  a  book 
or  literary  composition  belongs  to  the  author  at  common  law,  was 
brought  before  the  Court  of  King's  Bench,  in  the  great  case  of 
Miller  v.  Taylor,  reported  in  4  Burr.  2303.  This  was  a  case  of 
great  expectation,  and  the  four  judges,  in  giving  their  opinions, 
seriatim,  exhausted  the  argument  on  both  sides.  Two  of  the  judges, 
and  Lord  Mansfield,  held  that,  by  the  common  law,  an  author  had 
a  literary  property  in  his  works;  and  they  sustained  their  opinion 
with  very  great  ability.  Mr.  Justice  Yeates,  in  an  opinion  of  great 
length,  and  with  an  ability,  if  equalled,  certainly  not  surpassed, 
maintained  the  opposite  ground. 

Previous  to  this  case,  injunctions  had  issued  out  of  chancery  to 
prevent  the  publication  of  certain  works,  at  the  instance  of  those 
who  claimed  a  property  in  the  copyright,  but  no  decision  had  been 
given.  And  a  case  had  been  commenced,  at  law,  between  Tonson 
and  Collins,  on  the  same  ground,  and  was  argued  with  great  ability, 
more  than  once,  and  the  Court  of  King's  Bench  were  about  to  take 
tb"^  opinion  of  all  the  judges,  when  they  discovered  that  the  suit 
had  been  brought  by  collusion,  to  try  the  question,  and  it  was 
dismissed. 

This  question  was  brought  before  the  House  of  Lords,  in  the 
case  of  Donaldson  v.  Beckett  and  others,  reported  in  4  Burr.  2408. 

Lord  Mansfield,  being  a  peer,  through  feelings  of  delicacy, 
declined  giving  any  opinion.  The  eleven  judges  gave  their  opinions 
on  the  following  points:  1.  Whether  at  common  law  an  author  of 
any  book  or  literary  composition  had  the  sole  right  of  first  print- 
ing, and  publishing  the  same  for  sale;  and  might  bring  an  action 
against  any  person  who  printed,  published,  and  sold  the  same  with- 
out his  consent.  On  this  question  there  were  eight  judges  in  the 
affirmative,  and  three  in  the  negative. 

2.  If  the  author  had  such  right  originally,  did  the  law  take  it 
away,  upon  his  printing  and  publishing  such  book  or  literary  com- 
position; and  might  any  person,  afterward,  reprint  and  sell,  for 
his  own  benefit,  such  book  or  literary  composition,  against  the  will 
of  the  author?  This  question  was  answered  in  the  affirmative  by 
four  judges,  and  in  the  negative  by  seven. 

3.  If  such  action  would  have  lain,  at  common  law,  is  it  taken 
away  by  the  statute  of  8  Anne;  and  is  an  author,  by  the  said  statute, 
precluded  from  every  remedy,  except  on  the  foundation  of  the  said 
statute,  and  on  the  terms  of  the  conditions  prescribed  thereby? 
Six  of  the  judges,  to  five,  decided  that  the  remedy  must  be  under 
the  statute. 

4.  Whether  the  author  of  any  literary  composition,  and  his 
assigns,  had  the  sole  right  of  printing  and  publishing  the  same  in 
perpetuity,  by  the  common  law.  Wliich  question  was  decided  in 
favor  of  the  author,  by  seven  judges  to  four. 

31 


482  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

5.  Whether  this  right  is  any  way  impeached,  restrained,  or  taken 
away  by  the  statute  8  Anne.  Six,  to  live  judges,  decided  that  the 
right  is  taken  away  by  the  statute.  And  the  Lord  Chancellor, 
seconding  Lord  Camden's  motion  to  reverse,  the  decree  was 
reversed. 

It  would  appear  from  the  points  decided  that  a  majority  of  the 
judges  were  in  favor  of  the  common-law  right  of  authors,  but  that 
the  same  had  been  taken  away  by  the  statute. 

The  title  and  preamble  of  the  statute,  8  Anne,  c.  19,  is  as 
follows:  "An  Act  for  the  encouragement  of  learning  by  vesting  the 
copies  of  printed  books  in  the  authors  or  purchasers  of  such  copies, 
during  the  times  therein  mentioned. 

"  Whereas  printers,  booksellers,  and  other  persons  have  of  late 
frequently  taken  the  liberty  of  printing,  reprinting,  and  publishing, 
or  causing  to  be  printed,  reprinted,  and  published,  books  and  other 
writings  without  the  consent  of  the  authors  or  proprietors  of  such 
books  and  writings,  to  their  very  great  detriment,  and  too  often  to 
the  ruin  of  them  and  their  families,"  &c. 

In  7  Term  Rep.  627,  Lord  Kenyon  says:  "All  arguments  in  the 
support  of  the  rights  of  learned  men  in  their  works  must  ever  be 
heard  with  great  favor  by  men  of  liberal  minds  to  whom  they  are 
addressed.  It  was  probably  on  that  account  that  when  the  great 
question  of  literary  property  was  discussed,  some  judges  of  enlight- 
ened understanding  went  the  length  of  maintaining  that  the  right 
of  publication  rested  exclusively  in  the  authors  and  those  who 
claimed  under  them  for  all  time;  but  the  other  opinion  finall}'  pre- 
vailed, which  established  that  the  right  was  confined  to  the  times 
limited  by  the  act  of  Parliament.  And  that,  I  have  no  doubt,  was 
the  right  decision." 

And  in  the  case  of  the  University  of  Cambridge  v.  Bryer,  16  East, 
319,  Lord  Ellenborough  remarked:  "It  has  been  said  that  the 
statute  of  8  Anne  has  three  objects ;  but  I  cannot  subdivide  the  first 
two;  I  think  it  has  only  two.  The  counsel  for  the  plaintiffs  con- 
tended that  there  was  no  right  at  common  law;  and  perhaps  there 
might  not  be;  but  of  that  we  have  not  particularly  anything  to 
do." 

From  the  above  authorities,  and  others  which  might  be  referred 
to  if  time  permitted,  the  law  appears  to  be  well  settled  in  England, 
that,  since  the  statute  of  8  Anne,  the  literary  property  of  an  author 
in  his  works  can  only  be  asserted  under  the  statute.  And  that, 
notwithstanding  the  opinion  of  a  majority  of  the  judges  in  the  great 
case  of  Miller  v.  Taylor,  4  Burr.  2303,  was  in  favor  of  the  common- 
law  right  before  the  statute,  it  is  still  considered,  in  England,  as  a 
question  by  no  means  free  from  doubt. 

That  an  author,  at  common  law,  has  a  property  in  his  manuscript, 
and  may  obtain  redress  against  any  one  who  deprives  him  of  it,  or 
by  improperly  obtaining  a  copy  endeavors  to  realize  a  profit  by  its 


SECT.  X.]  WHEATON   V.    PETERS.  483 

publication,  cannot  be  doubted;  but  this  is  a  very  different  right 
from  that  which  asserts  a  perpetual  and  exclusive  property  in  the 
future  publication  of  the  work,  after  the  author  shall  have  published 
it  to  the  world. 

The  argument  that  a  literary  man  is  as  much  entitled  to  the 
product  of  his  labor  as  any  other  member  of  society,  cannot  be 
controverted.  And  the  answer  is,  that  he  realizes  this  product  by 
the  transfer  of  his  manuscripts,  or  in  the  sale  of  his  works  when 
first  published. 

A  book  is  valuable  on  account  of  the  matter  it  contains,  the  ideas 
it  communicates,  the  instruction  or  entertainment  it  affords.  Does 
the  author  hold  a  perpetual  property  in  these  ?  Is  there  an  implied 
contract  by  every  purchaser  of  ,his  book,  that  he  may  realize  what- 
ever instruction  or  entertainment  which  the  reading  of  it  shall  give, 
but  shall  not  write  out  or  print  its  contents  ? 

In  what  respect  does  the  right  of  an  author  differ  from  that  of  an 
individual  who  has  invented  a  most  useful  and  valuable  machine  ? 
In  the  production  of  this,  his  mind  has  been  as  intensely  engaged, 
as  long,  and,  perhaps,  as  usefully  to  the  public,  as  any  distinguished 
author  in  the  composition  of  his  book. 

The  result  of  their  labors  may  be  equally  beneficial  to  society, 
and  in  their  respective  spheres  they  may  be  alike  distinguished  for 
mental  vigor.  Does  the  common  law  give  a  perpetual  right  to  the 
author,  and  withhold  it  from  the  inventor  ?  And  yet  it  has  never 
been  pretended  that  the  latter  could  hold,  by  the  common  law,  any 
property  in  his  invention,  after  he  shall  have  sold  it  publicly. 

It  would  seem ,  therefore,  that  the  existence  of  a  principle  may 
well  be  doubted,  which  operates  so  unequally.  This  is  not  a  char- 
acteristic of  the  common  law.  It  is  said  to  be  founded  on  prin- 
ciples of  justice,  and  that  all  its  rules  must  conform  to  sound 
reason. 

Does  not  the  man  who  imitates  the  machine  profit  as  much  by 
the  labor  of  another,  as  he  who  imitates  or  republishes  a  book  ? 
Can  there  be  a  difference  between  the  types  and  press  with  which 
one  is  formed,  and  the  instruments  used  in  the  construction  of  the 
others  ? 

That  every  man  is  entitled  to  the  fruits  of  his  own  labor  must  be 
admitted;  but  he  can  enjoy  them  only,  except  by  statutory  pro- 
vision, under  the  rules  of  property,  which  regulate  society,  and 
which  define  the  rights  of  things  in  general. 

But,  if  the  common-law  right  of  authors  were  shown  to  exist  in 
England,  does  the  same  right  exist,  and  to  the  same  extent,  in  this 
country  ? 

It  is  clear,  there  can  be  no  common  law  of  the  United  States. 
The  Federal  government  is  composed  of  twenty-four  sovereign  and 
independent  States;  each  of  which  may  have  its  local  usages, 
customs,  and  common  law.     There  is  no  principle  which  pervades 


484  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

the  Union,  and  has  the  authority  of  law,  that  is  not  embodied  in 
the  Constitution  or  Laws  of  the  Union,  The  common  law  could  be 
made  a  part  of  our  Federal  system,  only  by  legislative  adoption. 

In  the  eighth  section  of  the  first  article  of  the  Constitution  of  the 
United  States  it  is  declared  that  Congress  shall  have  power  "to 
promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times,  to  authors  and  inventors,  the  exclusive  right  to  their 
respective  writings  and  discoveries."  And  in  pursuance  of  the 
power  thus  delegated.  Congress  passed  the  act  of  the  31st  of  May, 
1790. 

This  is  entitled  "An  Act  for  the  encouragement  of  learning,  by 
securing  the  copies  of  maps,  charts,  and  books  to  the  authors  and 
proprietors  of  such  copies,  during  the  times  therein  mentioned." 

In  the  first  section  of  this  act  it  is  provided  "that  from  and 
after  its  passage,  the  author  and  authors  of  any  map,  chart,  book, 
or  books,  already  printed  within  these  United  States,  being  a  citi- 
zen, &c.,  who  hath  or  have  not  transferred  to  any  other  person  the 
copyright  of  such  map,  chart,  book,  or  books,  &c.,  shall  have  the 
sole  right  and  liberty  of  printing,  reprinting,  publishing,  and 
vending  such  map,  book,  or  books,  for  fourteen  years." 

In  behalf  of  the  common-law  right,  an  argument  has  been  drawn 
from  the  word  "secure,"  which  is  used  in  relation  to  this  right,  both 
in  the  Constitution  and  in  the  acts  of  Congress.  This  word,  when 
used  as  a  verb  active,  signifies  to  protect,  insure,  save,  ascer- 
tain,  &c. 

The  counsel  for  the  complainants  insist  that  the  term,  as  used, 
clearly  indicates  an  intention  not  to  originate  a  right,  but  to  pro- 
tect one  already  in  existence. 

There  is  no  mode  by  which  the  meaning  affixed  to  any  word  or 
sentence,  by  a  deliberative  body,  can  be  so  well  ascertained,  as  by 
comparing  it  with  the  words  and  sentences  with  which  it  stands  con- 
nected. By  this  rule  tlie  word  "secure,"  as  used  in  tlie  Constitu- 
tion, could  not  mean  the  protection  of  an  acknowledged  legal  right. 
It  refers  to  inventors  as  well  as  authors,  and  it  has  never  been 
pretended  by  any  one,  either  in  this  country  or  in  England,  that 
an  inventor  has  a  perpetual  right,  at  common  law,  to  sell  the  thing 
invented. 

And  if  the  word  "secure"  is  used  in  the  Constitution,  in  reference 
to  a  future  right,  was  it  not  so  used  in  the  act  of  Congress  ? 

But  it  is  said  in  that  part  of  the  first  section  of  the  act  of  Con- 
gress, which  has  been  quoted,  a  copyright  is  not  only  recognized  as 
existing,  but  that  it  may  be  assigned,  as  the  rights  of  the  assignee 
are  protected,  the  same  as  those  of  the  author. 

As  before  stated,  an  author  has,  by  the  common  law,  a  property 
in  his  manuscript;  and  there  can  be  no  doubt  that  the  rights  of  an 
assignee   of   such   manuscript   would   be   protected   by  a  court  of 


SECT.  X.]  WHEATON   V.    PETERS.  485 

chancery.  This  is  presumed  to  be  the  copyright  recognized  in  the 
act,  and  which  was  intended  to  be  protected  by  its  provisions. 
And  this  protection  was  given,  as  well  to  books  published  under 
such  circumstances  as  to  manuscript  copies. 

That  Congress,  in  passing  the  act  of  1790,  did  not  legislate  in 
reference  to  existing  rights,  appears  clear,  from  the  provision  that 
the  author,  &c.,  "shall  have  the  sole  right  and  liberty  of  printing," 
&c.  Now  if  this  exclusive  right  existed  at  common  law,  and  Con- 
gress were  about  to  adopt  legislative  provisions  for  its  protection, 
would  they  have  used  this  language  ?  Could  they  have  deemed  it 
necessary  to  vest  a  right  already  vested.  Such  a  presumption  is 
refuted  by  the  words  above  quoted,  and  their  force  is  not  lessened 
by  any  other  part  of  the  act. 

Congress,  then,  by  this  act,  instead  of  sanctioning  an  existing 
right,  as  contended  for,  created  it.  This  seems  to  be  the  clear 
import  of  the  law,  connected  with  the  circumstances  under  which 
it  was  enacted. 

From  these  considerations  it  would  seem  that  if  the  right  of  the 
complainants  can  be  sustained,  it  must  be  sustained  under  the  acts 
of  Congress.  Such  was,  probably,  the  opinion  of  the  counsel  who 
framed  the  bill,  as  the  right  is  asserted  under  the  statutes,  and  no 
particular  reference  is  made  to  it  as  existing  at  common  law.  The 
claim,  then,  of  the  complainants  must  be  examined  in  reference  to 
the  statutes  under  which  it  is  asserted. 

There  are  but  two  statutes  which  have  a  bearing  on  this  subject; 
one  of  them  has  already  been  named,  and  the  other  was  passed  the 
2yth  of  April,  1802. 

The  first  section  of  the  act  of  1790  provides  that  an  author,  or 
his  assignee,  "shall  have  the  sole  right  and  liberty  of  printing, 
reprinting,  publishing,  and  vending  such  map,  chart,  book,  or 
books,  for  the  term  of  fourteen  years,  from  the  recording  of  the 
title  thereof  in  the  clerk's  office,  as  hereinafter  directed;  and  that 
the  author,  &c,,  in  books  not  published,  &c.,  shall  have  the  sole 
right  and  liberty  of  printing,  reprinting,  publishing,  and  vending 
such  map,  chart,  book,  or  books,  for  the  like  term  of  fourteen 
years,  from  the  time  of  recording  the  title  thereof  in  the  clerk's 
office,  as  aforesaid.  And  at  the  expiration  of  the  said  term  the 
author,  &c.,  shall  have  the  same  exclusive  right  continued  to  him, 
&c.,  for  the  further  term  of  fourteen  years:  provided  he  or  they 
shall  cause  the  title  thereof  to  be  a  second  time  recorded,  and  pub- 
lished in  the  same  manner  as  is  hereinafter  directed,  and  that 
within  six  months  before  the  expiration  of  the  first  term  of 
fourteen  years," 

The  third  section  provides  that  "  no  person  shall  be  entitled  to  the 
benefit  of  this  act,  &c.,  unless  he  shall  first  deposit,  &c.,  a  printed 
copy  of  the  title  in  the  clerk's  office,"  &c.  "And  such  author  or 
proprietor  shall,  within  two  months  from  the  date  thereof,  cause  a 


486  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  17. 

copy  of  said  record  to  be  published  in  one  or  more  of  the  news- 
papers printed  in  the  United  States,  for  the  space  of  four  weeks." 

And  the  fourth  section  enacts  that  "the  author,  &c.,  shall,  within 
six  months  after  the  publishing  thereof,  deliver  or  cause  to  be 
delivered  to  the  Secretary  of  State,  a  copy  of  the  same,  to  be  pre- 
served in  his  office."  ^ 

The  first  section  of  the  act  of  1802  provides,  that  "every  person 
who  shall  claim  to  be  the  author,  «S:c.,  before  he  shall  be  entitled  to 
the  benefit  of  the  act  entitled  an  act  for  the  encouragement  of  learn- 
ing, by  securing  the  copies  of  maps,  charts,  and  books,  to  the 
authors  and  proprietors  of  such  copies,  during  the  time  therein 
mentioned,  he  shall,  in  addition  to  the  requisites  enjoined  in  the 
third  and  fourth  sections  of  said  act,  if  a  book  or  books,  give  infor- 
mation by  causing  the  copy  of  the  record  which  by  said  act  he  is 
required  to  publish,  to  be  inserted  in  the  page  of  the  book  next  to 
the  title." 

These  are  substantially  the  provisions  by  which  the  complainants' 
right  must  be  tested.  They  claim  under  a  renewal  of  the  term,  but 
this  necessarily  involves  the  validity  of  the  right  under  the  first  as 
well  as  the  second  term.  In  the  language  of  the  statute,  the 
"same  exclusive  right"  is  continued  the  second  terra  that  existed 
the  first. 

It  will  be  observed  that  a  right  accrues  under  the  act  of  1790 
from  the  time  a  copy  of  the  title  of  the  book  is  deposited  in  the 
clerk's  office.  But  the  act  of  1802  adds  another  requisite  to  tlie 
accruing  of  the  right,  and  that  is,  that  the  record  made  by 
the  clerk  shall  be  published  in  the  page  next  to  the  title-page  of 
the  book. 

And  it  is  argued  with  great  earnestness  and  ability,  that  these 
are  the  only  requisites  to  the  perfection  of  the  complainants'  title. 
That  the  requisition  of  the  third  section  to  give  public  notice  in  the 
newspapers,  and  that  contained  in  the  fourth  to  deposit  a  copy  in 
the  Department  of  State,  are  acts  subsequent  to  the  accruing  of 
the  right,  and  whether  they  are  performed  or  not,  cannot  materially 
affect  the  title. 

The  case  is  compared  to  a  grant  with  conditions  subsequent,  which 
can  never  operate  as  a  forfeiture  of  the  title.  It  is  said  also  that 
the  object  of  the  publication  in  the  newspapers,  and  the  deposit  of 
the  copy  in  the  Department  of  State,  was  merely  to  give  notice 
to  the  public;  and  that  such  acts,  not  being  essential  to  the  title, 
after  so  great  a  lapse  of  time,  may  well  be  presumed.  That  if 
neither  act  had  been  done,  the  right  of  the  party  having  accrued 
before  either  was  required  to  be  done,  it  must  remain  unshaken. 

This  right,  as  has  been  shown,  does  not  exist  at  common  law  ;  it 
originated,  if  at  all,  under  the  acts  of  Congress.     No  one  can  deny 

1  Publication  of  notice  in  a  newspaper  is  no  longer  required.  See  Rev.  Stat 
§  4956.  — [Ed.] 


SECT.  X.]  WHEATON   V.   PETERS.  487 

that  when  the  legislature  are  about  to  vest  an  exclusive  right  in  an 
author  or  an  inventor,  they  have  the  power  to  prescribe  the  condi- 
tions on  which  such  right  shall  be  enjoyed;  and  that  no  one  can 
avail  himself  of  such  right  who  does  not  substantially  comply  with 
the  requisitions  of  the  law. 

This  principle  is  familiar  as  it  regards  patent  rights;  and  it  is 
the  same  in  relation  to  the  copyright  of  a  book.  If  any  difference 
shall  be  made,  as  it  respects  a  strict  conformity  to  the  law,  it  would 
seem  to  be  more  reasonable  to  make  the  requirement  of  the  author 
rather  than  the  inventor. 

The  papers  of  the  latter  are  examined  in  the  department  of  State, 
and  require  the  sanction  of  the  Attorney-General;  but  the  author 
takes  every  step  on  his  own  responsibility,  unchecked  by  the  scru- 
•tiny  or  sanction  of  any  public  functionary. 

The  acts  required  to  be  done  by  an  author,  to  secure  his  right, 
are  in  the  order  in  which  they  must  naturally  transpire.  First,  the 
title  of  the  book  is  to  be  deposited  witli  the  clerk,  and  the  record 
he  makes  must  be  inserted  in  the  first  or  second  page;  then  the 
public  notice  in  the  newspapers  is  to  be  given;  and  within  six 
months  after  the  publication  of  the  book,  a  copy  must  be  deposited 
in  the  Department  of  State. 

A  right  undoubtedly  accrues  on  the  record  being  made  with  the 
clerk,  and  the  printing  of  it  as  required;  but  what  is  the  nature  of 
that  right  ?  Is  it  perfect  ?  If  so,  the  other  two  requisites  are 
wholly  useless. 

How  can  the  author  be  compelled  either  to  give  notice  in  the 
newspapers,  or  deposit  a  copy  in  the  State  Department  ?  The 
statute  affixes  no  penalty  for  a  failure  to  perform  either  of  these 
acts;  and  it  provides  no  means  by  which  it  may  be  enforced. 

But  we  are  told  they  are  unimportant  acts.  If  they  are  indeed 
wholly  unimportant,  Congress  acted  unwisely  in  requiring  them  to 
be  done.  But  whether  they  are  important  or  not,  is  not  for  the 
court  to  determine,  but  the  legislature;  and  in  what  light  they  were 
considered  by  the  legislature  we  can  learn  only  by  their  official  acts. 

Judging  then  of  these  acts  by  this  rule,  we  are  not  at  liberty  to 
say  that  they  are  unimportant,  and  may  be  dispensed  with.  They 
are  acts  which  the  law  requires  to  be  done,  and  may  this  court  dis- 
pense with  their  performance? 

But  the  inquiry  is  made,  shall  the  non-performance  of  these 
subsequent  conditions  operate  as  a  forfeiture  of  the  right  ? 

The  answer  is,  that  this  is  not  a  technical  grant  of  precedent  and 
subseqv.ent  conditions.  All  the  conditions  are  important;  the  law 
requires  them  to  be  performed;  and,  consequently,  their  perform- 
ance is  essential  to  a  perfect  title.  On  the  performance  of  a  part 
of  them  the  right  vests;  and  this  was  essential  to  its  protection 
under  the  statute;  but  other  acts  are  to  be  done,  unless  Congress 
have  legislated  in  vain,  to  render  the  right  perfect. 


488  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

The  notice  could  not  be  published  until  after  the  entry  with  the 
clerk,  nor  could  the  book  be  deposited  with  the  Secretary  of  State 
until  it  was  published.  But  these  are  acts  not  less  important  than 
those  which  are  required  to  be  done  previously.  They  form  a  part 
of  the  title,  and  until  they  are  performed  the  title  is  not  perfect. 

The  deposit  of  the  book  in  the  Department  of  State,  may  be 
important  to  identify  it  at  any  future  period,  should  tlie  copyright 
be  contested,  or  an  unfounded  claim  of  authorship  asserted; 

But,  if  doubts  could  be  entertained  whether  the  notice  and  deposit 
of  the  book  in  the  State  Department  were  essential  to  the  title, 
under  the  act  of  1790,  on  which  act  my  opinion  is  principally 
founded,  though  I  consider  it  in  connection  with  the  other  act; 
there  is,  in  the  opinion  of  three  of  the  judges,  no  ground  for  doubt 
under  the  act  of  1802.  The  latter  act  declares  that  every  author, 
&c.,  before  he  shall  be  entitled  to  the  benefit  of  the  former  act, 
shall,  "in  addition  to  the  requisitions  enjoined  in  the  third  and 
fourth  sections  of  said  act,  if  a  book,  publish,"  &c. 

Is  not  this  a  clear  exposition  of  the  first  act  ?  Can  an  author 
claim  the  benefit  of  the  act  of  1790,  without  performing  "the  requi- 
sites enjoined  in  the  third  and  fourth  sections  of  it."  If  there  be 
any  meaning  in  language,  the  act  of  1802,  the  three  judges  think, 
requires  these  requisites  to  be  performed  "  in  addition  "  to  the  one 
required  by  that  act,  before  an  author,  &c.,  "shall  be  entitled  to  the 
benefit  of  the  first  act." 

The  rule  by  which  conditions  precedent  and  subsequent  are  con- 
strued in  a  grant,  can  have  no  application  to  the  case  under  consid- 
eration; as  every  requisite,  in  both  acts,  is  essential  to  the  title. 

The  act  of  Congress  under  which  Mr.  Wheaton,  one  of  the  com- 
plainants, in  his  capacity  of  reporter,  was  required  to  deliver  eighty 
copies  of  each  volume  of  his  reports  to  the  Department  of  State, 
and  which  were,  probably,  faithfully  delivered,  does  not  exonerate 
him  from  the  deposit  of  a  copy  under  the  act  of  1790.  The  eighty 
volumes  were  delivered  for  a  different  purpose;  and  cannot  excuse 
the  deposit  of  the  one  volume  as  specially  required. 

The  construction  of  the  acts  of  Congress  being  settled,  in  the 
further  investigation  of  the  case  it  would  become  necessary  to  look 
into  the  evidence  and  ascertain  whether  the  complainants  have  not 
shown  a  substantial  compliance  with  every  legal  requisite.  But  on 
reading  the  evidence  we  entertain  dovibts,  which  induce  us  to 
remand  the  cause  to  the  Circuit  Court,  where  the  facts  can  be  ascer- 
tained by  a  jury. 

And  the  cause  is  accordingly  remanded  to  the  Circuit  Court,  with 
directions  to  that  court  to  order  an  issue  of  facts  to  be  examined 
and  tried  by  a  jury,  at  the  bar  of  said  court,  upon  this  point,  viz., 
whether  the  said  Wheaton,  as  author,  or  any  other  person  as  pro- 
prietor, had  complied  with  the  requisites  prescribed  by  the  third 


SECT.  X.]  PATTERSON    V.    KENTUCKY.  489 

and  fourth  sections  of  the  said  act  of  Congress,  passed  the  31st  day 
of  May,  1790,  iu  regard  to  the  vohimes  of  Wheaton's  Reports  in  the 
said  bill  mentioned,  or  in  regard  to  one  or  more  of  them  in  the  fol- 
lowing particulars,  viz.,  whether  the  said  Wheaton  or  proprietor 
did,  within  two  months  from  the  date  of  the  recording  thereof  in 
the  clerk's  office  of  the  District  Court,  cause  a  copy  of  the  said  record 
to  be  published  in  one  or  more  of  the  newspapers  printed  in  the 
resident  States,  for  the  si:»ace  of  four  weeks;  and  whether  the  said 
Wheaton  or  proprietor,  after  the  publishing  thereof,  did  deliver  or 
cause  to  be  delivered  to  the  Secretary  of  State  of  the  United  States 
a  copy  of  the  same  to  be  preserved  in  his  office,  according  to  the 
provisions  of  the  said  third  and  fourth  sections  of  the  said  act. 

And  if  the  said  requisites  have  not  been  complied  with  in  regard 
to  all  the  said  volumes,  then  the  jury  to  find  in  particular  in  regard 
to  what  volumes  they  or  either  of  them  have  been  so  complied  with. 

It  may  be  proper  to  remark  that  the  court  are  unanimously  of 
opinion  that  no  reporter  has  or  can  have  any  copyright  in  the 
written  opinions  delivered  by  this  court;  and  that  the  judges  thereof 
cannot  confer  on  any  reporter  any  such  right.'' 


PATTERSON   v.   KENTUCKY. 

97  United  States,  501.     1878. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

Whether  the  final  judgment  of  the  Court  of  Appeals  of  Kentucky 
denies  to  plaintiff  in  error  any  right  secured  to  her  by  the  Constitu- 
tion and  laws  of  the  United  States,  is  the  sole  question  presented  in 
this  case  for  our  determination. 

That  court  affirmed  the  judgment  of  an  inferior  State  court  in 
which,  upon  indictment  and  trial,  a  fine  of  $2.50  was  imposed  upon 
plaintiff  in  error  for  a  violation  of  certain  provisions  of  a  Kentucky 
statute,  approved  Feb.  21,  1874,  regulating  the  inspection  and  gang- 
ing of  oils  and  fluids,  the  product  of  coal,  petroleum,  or  other  bitu- 
minous substances.  The  statute  provides  that  such  oils  and  fluids, 
by  whatever  name  called  and  wherever  manufactured,  which  may  or 
can  be  used  for  illuminating  purposes,  shall  be  inspected  by  an  au- 
thorized State  officer,  before  being  used,  sold,  or  offered  for  sale. 
Such  as  ignite  or  permanently  burn  at  a  temperature  of  130°  Fahren- 
heit and  upwards  are  recognized  by  the  statute  as  standard  oils,  while 
those  which  ignite  or  permanently  burn  at  a  less  temperature  are 
condemned  as  unsafe  for  illuminating  purposes.  Inspectors  are  re- 
quired to  brand  casks  and  barrels  with  the  words  "standard  oil,"  or 

1  Mr.  Justice  Thompson  rendered  a  dissenting  opinion. 


490  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

with  the  words  "  unsafe  for  illuminating  purposes,"  as  inspectiou  may 
show  to  be  proper.  The  statute  imposes  a  penalty  upon  all  who  sell 
or  offer  for  sale,  within  the  State,  such  oils  and  fluids  as  have  been 
condemned,  the  casks  or  barrels  containing  which  have  been  branded 
with  the  words  indicating  such  condemnation. 

The  speciflc  offence  charged  in  the  indictment  was  that  the  plaintiff 
in  error  had  sold,  within  the  State,  to  one  Davis  an  oil  known  as  the 
Aurora  oil,  the  casks  containing  which  had  been  previously  branded 
by  an  authorized  inspector  with  the  words  "  unsafe  for  illuminating' 
purposes."  That  particular  oil  is  the  same  for  which,  in  1867,  let- 
ters-patent were  granted  to  Henry  C.  Dewitt,  of  whom  the  plaintiff 
in  error  is  the  assignee,  by  assignment  duly  recorded  as  required  by 
the  laws  of  the  United  States.  Upon  the  trial  of  the  case  it  was 
agreed  that  the  Aurora  oil  could  not,  by  any  chemical  combination 
described  in  the  patent,  be  made  to  conform  to  the  standard  or  test 
required  by  the  Kentucky  statute  as  a  prerequisite  to  the  right, 
within  that  State,  to  sell,  or  to  offer  for  sale,  illuminating  oils  of  the 
kind  designated. 

The  plaintiff  in  error,  as  assignee  of  the  patentee,  in  asserting  the 
right  to  sell  the  Aurora  oil  in  any  part  of  the  United  States,  claims 
that  no  State  could,  consistently  with  the  Federal  Constitution  and 
the  laws  of  Congress,  prevent  or  obstruct  the  exercise  of  that  right, 
either  by  express  words  of  prohibition,  or  by  regulations  which  pre- 
scribed tests  to  which  the  patented  article  could  not  be  made  to 
conform. 

The  Court  of  Appeals  of  Kentucky  held  this  construction  of  the 
Constitution  and  the  laws  of  the  United  States  to  be  inadmissible, 
and  in  that  opinion  we  concur. 

Congress  is  given  power  to  promote  the  progress  of  science  and  the 
useful  arts.  To  that  end  it  may,  by  all  necessary  and  proper  laws, 
secure  to  inventors,  for  limited  times,  the  exclusive  right  to  their  in- 
ventions. That  power  has  been  exerted  in  the  various  statutes  pre- 
scribing the  terms  and  conditions  upon  which  letters-patent  may  be 
obtained.  It  is  true  that  letters-patent,  pursuing  the  words  of  the 
statute,  do,  in  terms,  grant  to  the  inventor,  his  heirs  and  assigns,  the 
exclusive  right  to  make,  use,  and  vend  to  others  his  invention  or  dis- 
covery, throughout  the  United  States  and  the  Territories  thereof.  But, 
obviously,  this  right  is  not  granted  or  secured,  without  reference  to 
the  general  powers  which  the  several  States  of  the  Union  unquestion- 
ably possess  over  their  purely  domestic  affairs,  whether  of  internal 
commerce  or  of  police.  "In  the  American  constitutional  system," 
says  ]\[r.  Cooley,  "  the  power  to  establish  the  ordinary  regulations  of 
police  has  been  left  with  the  individual  States,  and  cannot  be  assumed 
by  the  national  government."  Cooley,  Const.  Lim.  574.  While  it  is 
confessedly  difficult  to  mark  the  precise  boundaries  of  that  power,  or 
to  indicate,  by  any  general  rule,  the  exact  limitations  which  the 
States  must  observe  in  its  exercise,  the  existence  of  such  a  power  in 


SECT.  X.]  PATTERSON    V.    KENTUCKY.  491 

the  States  lias  been  uniformly  recognized  in  this  court.  Gibbons  v. 
Ogden,  9  Wheat.  1 ;  License  Cases,  5  How.  504 ;  Oilman  v.  Philadel- 
phia, 3  Wall.  713;  Henderson  et  al.  v.  Mayor  of  the  City  of  New 
York  et  al.,  92  U.  S.  259 ;  Kailroad  Company  v.  Husen,  95  id.  4(35  ; 
Beer  Company  v.  Massachusetts,  [97  U.  S.]  25.  It  is  embraced  in 
what  Mr.  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,  calls  that 
"immense  mass  of  legislation"  which  can  be  most  advantageously 
exercised  by  the  States,  and  over  which  the  national  authorities  can- 
not assume  supervision  or  control.  "  If  the  power  only  extends  to  a 
just  regulation  of  rights,  with  a  view  to  the  due  protection  and  enjoy- 
ment of  all,  and  does  not  deprive  any  one  of  that  which  is  justly  and 
properly  his  own,  it  is  obvious  that  its  possession  by  the  State,  and 
its  exe  else  for  the  regulation  of  the  property  and  actions  of  its  citi- 
zens, cannot  well  constitute  an  invasion  of  national  jurisdiction  or 
afford  a  basis  for  an  appeal  to  the  protection  of  the  national  author- 
ities." Cooley,  Const.  Lim.  574.  By  the  settled  doctrines  of  this 
court  the  police  power  extends,  at  least,  to  the  protection  of  the  lives, 
the  health,  and  the  property  of  the  community  against  the  injurious 
exercise  by  any  citizen  of  his  own  rights.  State  legislation,  strictly 
and  legitimately  for  police  purposes,  does  not,  in  the  sense  of  the 
Constitution,  necessarily  intrench  upon  any  authority  which  has 
been  confided,  expressly  or  by  implication,  to  the  national  government. 
The  Kentucky  statute  under  examination  manifestly  belongs  to  that 
class  of  legislation.  It  is,  in  the  best  sense,  a  mere  police  regulation, 
deemed  essential  for  the  protection  of  the  lives  and  property  of  citi- 
zens. It  expresses  in  the  most  solemn  form  the  deliberate  judgment  of 
the  State  that  burning  fluids  which  ignite  or  permanently  burn  at  less 
than  a  prescribed  temperature  are  unsafe  for  illuminating  purposes. 
Whether  the  policy  thus  pursued  by  the  State  is  wise  or  unwise,  it  is 
not  the  province  of  the  national  authorities  to  determine.  That  be- 
longs to  each  State,  under  its  own  sense  of  duty,  and  in  view  of  the 
provisions  of  its  own  Constitution.  Its  action,  in  those  respects,  is 
beyond  the  corrective  power  of  this  court.  That  the  statute  of  1874  is 
a  police  regulation  within  the  meaning  of  the  authorities  is  clear  from 
our  decision  in  United  States  v.  Dewitt,  9  Wall.  41.  By  the  internal 
revenue  act  of  March  2,  1867,  a  penalty  was  imposed  upon  any  per- 
son who  should  mix  for  sale  naphtha  and  illuminating  oils,  or  who 
should  knowingly  sell,  or  keep  for  sale,  or  offer  for  sale,  such  mix- 
ture, or  who  should  sell  or  offer  for  sale  oil  made  from  petroleum  for 
illuminating  purposes,  inflammable  at  less  temperature  or  Hre-test  than 
110°  Fahrenheit.  We  held  that  to  be  simply  a  police  regulation,  re- 
lating exclusively  to  the  internal  trade  of  the  States ;  that,  although 
emanating  from  Congress,  it  could  have  by  its  own  force  no  constitu- 
tional operation  within  State  limits,  and  was  without  effect,  except 
where  the  legislative  authority  of  Congress  excluded,  territorially,  all 
State  legislation,  as,  for  example,  in  the  District  of  Columbia. 

The  Kentucky  statute  being,  then,  an  ordinary  police  regulation 


492  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

for  the  government  of  those  engaged  in  the  internal  commerce  of 
that  State,  the  only  remaining  question  is,  whether,  under  the  opera- 
tion of  the  Federal  Constitution  and  the  laws  of  Congress,  it  is  with- 
out effect  in  cases  where  the  oil,  although  condemned  by  the  State  as 
unsafe  for  illuminating  purposes,  has  been  made  and  prepared  for 
sale  m  accordance  with  a  discovery  for  which  letters-patent  had  been 
granted.  We  are  of  opinion  that  the  right  conferred  upon  the  paten- 
tee and  his  assigns  to  use  and  vend  the  corporeal  thing  or  article, 
brought  into  existence  by  the  application  of  the  patented  discovery, 
must  be  exercised  in  subordination  to  the  police  regulations  which 
the  State  established  by  the  statute  of  1874.  It  is  not  to  be  supposed 
that  Congress  intended  to  authorize  or  regulate  the  sale,  within  a 
State,  of  tangible  personal  property  which  that  State  declares  to  be 
unfit  and  unsafe  for  use,  and  by  statute  has  prohibited  from  being 
sold  or  offered  for  sale  within  her  limits.  It  was  held  by  Chief  Jus- 
tice Shaw  to  be  a  settled  principle,  "  growing  out  of  the  nature  of 
well-ordered  society,  that  every  holder  of  property,  however  absolute 
and  unqualified  may  be  his  title,  holds  it  under  the  implied  liability 
that  his  use  of  it  shall  not  be  injurious  to  the  equal  enjoyment 
of  others  having  an  equal  right  to  the  enjoyment  of  their  prop- 
erty, nor  injurious  to  the  rights  of  the  community."  Common- 
wealth V.  Alger,  7  Cush.  (Mass.)  53.  In  recognition  of  this  fun- 
damental principle,  we  have  frequently  decided  that  the  police 
power  of  the  States  was  not  surrendered  when  the  Constitution  con- 
ferred upon  Congress  the  general  power  to  regulate  commerce  with 
foreign  nations  and  between  the  several  States.  Hence  the  States 
may,  by  police  regulations,  jjrotect  their  people  against  the  introduc- 
tion within  their  respective  limits  of  infected  merchandise.  "  A  bale 
of  goods  upon  which  the  duties  have  or  have  not  been  paid,  laden 
with  infection,  may  be  seized  under  health  laws,  and  if  it  cannot  be 
jjurged  of  its  poison,  may  be  committed  to  the  flames."  Gil  man  v. 
Philadelphia,  supra.  So  may  the  State,  by  like  regulations,  exclude 
from  their  midst  not  only  convicts,  paupers,  idiots,  lunatics,  and  per- 
sons likely  to  become  a  public  charge,  but  animals  having  contagious 
diseases.  Railroad  Company  v.  Husen,  supra.  This  court  has  never 
hesitated,  by  the  most  rigid  rules  of  construction,  to  guard  the  com- 
mercial power  of  Congress  against  encroachment  in  the  form  or  under 
the  guise  of  State  regulation,  established  for  the  purpose  and  with 
the  effect  of  destroying  or  impairing  rights  secured  by  the  Constitu- 
tion. It  has,  nevertheless,  with  marked  distinctness  and  uniformity, 
recognized  the  necessity,  growing  out  of  the  fundamental  conditions 
of  civil  society,  of  upholding  State  police  regulations  which  were  en- 
acted in  good  faith,  and  had  appropriate  and  direct  connection  with 
that  protection  to  life,  health,  and  property,  which  each  State  owes  to 
her  citizens.  These  considerations,  gathered  from  the  former  deci- 
sions of  this  court,  would  seem  to  justify  the  conclusion  that  the  right 
which  the  patentee  or  his  assignee  possesses  in  the  property  created 


SECT.  X.]  PATTERSON    V.    KENTUCKY.  493 

by  the  application  of  a  patented  discovery  must  be  enjoyed  subject  to 
the  complete  and  salutary  power  with  which  the  States  have  never 
parted,  of  so  defining  and  regulating  the  sale  and  use  of  property 
within  their  respective  limits  as  to  afford  protection  to  the  many 
against  the  injurious  conduct  of  the  few.  The  right  of  property  in 
the  physical  substance,  which  is  the  fruit  of  the  discovery,  is  alto- 
gether distinct  from  the  right  in  the  discovery  itself,  just  as  the 
property  in  the  instruments  or  plate  by  which  copies  of  a  map  are 
multiplied  is  distinct  from  the  copyright  of  the  map  itself.  Stephens 
V.  Cady,  14  How.  528 ;  Stevens  v.  Gladding  et  al.,  17  id.  447.  The 
right  to  sell  the  Aurora  oil  was  not  derived  from  the  letters-patent, 
but  it  existed  and  ccmld  have  been  exercised  before  they  were  issued, 
unless  it  was  prohibited  by  valid  local  legislation.  All  which  they 
primarily  secure  is  the  exclusive  right  in  the  discovery.  That  is  an 
incorporeal  right,  or,  in  the  language  of  Lord  Mansfield  in  Millar  v. 
Taylor,  4  Burr.  2396,  "a  property  in  notion,"  having  "no  corporeal 
tangible  substance."  Its  enjoyment  may  be  secured  and  protected  by 
national  authority  against  all  interference;  but  the  use  of  the  tangi- 
ble property  which  comes  into  existence  by  the  application  of  the 
discovery  is  not  beyond  the  control  of  State  legislation,  simply  be- 
cause the  patentee  acquires  a  monopoly  in  his  discovery. 

An  instructive  case  upon  the  precise  point  under  consideration  is 
Jordan  v.  The  Overseers  of  Dayton,  4  Ohio,  295.  Jordan  was  sued 
in  debt,  to  recover  certain  penalties  for  practising  medicine  in  viola- 
tion of  an  Ohio  statute  regulating  the  practice  of  physic  and  surgery. 
His  defence  rested,  in  part,  upon  the  ground  that  the  medicine  admin- 
istered by  him  was  that  for  which  letters-patent  had  issued  to  his 
assignor,  granting  to  the  latter  the  exclusive  right  of  making,  con- 
structing, using,  and  vending  to  others  to  be  used,  the  medicine  in 
question,  which  was  described  in  the  letters-patent  as  a  new  and  use- 
ful improvement,  and  as  being  a  mode  of  preparing,  mixing,  com- 
pounding, administering,  and  using  that  medicine.  The  contention 
of  Jordan  was  that  the  State  government  could  not  restrict  or  control 
the  beneficial  or  lucrative  use  of  the  invention,  and  that,  as  assignee 
of  the  patentee,  he  was  entitled  to  administer  the  patented  medicine 
without  obtaining  a  license  to  practise  physic  or  surgery  as  required 
by  the  State  statute.  The  Supreme  Court  of  Ohio  said  :  "  This  leads 
us  to  consider  the  nature  and  extent  of  such  rights  as  accrue  from 
letters-patent  for  useful  discoveries.  Although  the  inventor  had  at 
all  times  the  right  to  enjoy  the  fruits  of  his  own  ingenuity,  in  every 
lawful  form  of  which  its  use  was  susceptible,  yet,  before  the  enact- 
ment  of  the  statute,  he  had  not  the  power  of  preventing  others  from 
participating  in  that  enjoyment  to  the  same  extent  with  himself;  so 
that,  however  the  world  might  derive  benefit  from  his  labors,  no 
profit  ensued  to  himself.  The  ingenious  man  was  therefore  led  either 
to  abandon  pursuits  of  this  nature,  or  to  conceal  his  results  from  the 
world.     The  end  of  the  statute  was  to  encourage  useful  inventions. 


494  THE   LEGISLATIVE   DEPARTMENT.  [CHAP,  IV. 

and  to  hold  forth,  as  inducements  to  the  inventor,  the  exclusive  use 
of  his  inventions  for  a  limited  period.     The  sole  operation  of  the 
statute  is  to  enable  him  to  prevent  otliers  from  using  the  products  of 
his  labors  except  with  his  consent.     But  his  own  right  of  using  is 
not  enlarged  or  aifected.     There  remains  in  him,  as  in  every  other 
citizen,  the  power  to  manage  his  property,  or  give  direction  to  his 
labors,   at   his  pleasure,  subject  only  to   the  paramount  claims   of 
society,  which  requires  that  his  enjoyment  may  be  modified  by  the 
exigencies  of  the  community  to  which  he  belongs,  and  regulated  by 
laws  which  render  it  subservient  to  the  general  welfare,  if  held  sub- 
ject  to  State  control.     If  the  State  should  pass  a  law  for  the  purpose 
of  destroying  a  right  created  by  the  Constitution,  this  court  will  do 
its  duty ;  but  an  attempt  by  the  legislature,  in  good  faith,  to  regulate 
the  conduct  of  a  portion  of  its  citizens,  in  a  matter  strictly  pertaining 
to  its  internal  economy,  we  cannot  but  regard  as  a  legitimate  exercise 
of  power,  although  such  law  may  sometimes  indirectly  affect  the  en- 
joyment of  rights  flowing  from  the  Federal  government."    Some  light 
is  thrown  upon  the  question  by  Vanini  et  al.  v.  Paine  et  al.,  1  Harr. 
(Del.)  65.     In  that  case  it  appears  that  Yates  and  Mclntyre  were 
assignees  of  Vanini,  the  inventor  and  patentee  of  a  mode  of  drawing 
lotteries,  and  making  schemes  for  lotteries  on  the  combination  and 
permutation  principle.     Other  brokers  issued  a  scheme  for  drawing  a 
lottery  under  a  certain  act  for  the  benefit  of  a  school,  adojiting  the 
plan  of  Vanini's  patent.     Yates  and  Mclntyre  filed  their  bill  for  in- 
junction upon  the  ground,  partly,  that  the  defendants  were  proceed- 
ing in  violation  of  the  patent-rights  secured  to  Vanini.     The  Court  of 
Errors  and  Appeals  of  Delaware  said:  "At  the  times  Yates  &  Mcln- 
tyre made  contracts  for  the  lottery  privileges  set  forth  in  the  bill,  we 
had,  in  force,  an  act  of  assembly  prohibiting  lotteries,  the  preamble 
of  which  declares  that  they  are  pernicious  and  destructive  to  frugal- 
ity and  industry,  and  introductive  of  idleness  and  immorality,  and 
against  the  common  good  and  general  Avelfare.     It  therefore  cannot 
be  admitted  that  tlie  plaintiffs  have  a  right  to  use  an  invention  for 
drawing  lotteries  in  this  State,  merely  because  they  have  a  patent  for 
it  under  the  United  States.     A  person  might  with  as  much  propriety 
claim  a  right  to  commit  murder  with  an  instrument,  because  he  held 
a  patent  for  it  as  a  new  and  useful  invention." 

In  Livingston  v.  Van  Ingen,  9  Johns.  507,  582,  Chancellor  Kent 
said  that  "  the  national  power  will  be  fully  satisfied  if  the  property 
created  by  patent  be,  for  the  given  time,  enjoyed  and  used  exclusively, 
so  far  as,  under  the  laws  of  the  several  States,  the  property  shall  be 
deemed  for  toleration.  There  is  no  need  of  giving  this  power  any 
broader  construction  in  order  to  attain  the  end  for  which  it  was  granted, 
which  was  to  reward  the  beneficent  efforts  of  genius,  and  to  encourage 
the  useful  arts."  That  case,  so  far  as  it  related  to  the  validity,  under 
the  commercial  clause  of  the  Constitution,  of  certain  statutes  of  New 
York,  is  not  now  recognized  as  authority.     It  is,  perhaps,  also  true 


SECT.  X.]  HERDIC   V.    ROESSLER.  495 

that  the  language  just  quoted  was  not  absolutely  necessary  to  the 
decision  of  that  case.  But  as  an  expression  of  opinion  by  an  eminent 
jurist  as  to  the  nature  and  extent  of  the  rights  secured  by  the  Federal 
Constitution  to  inventors,  it  is  entitled  to  great  weight. 

Without  further  elaboration,  we  deem  it  only  necessary  to  say  tliat 
the  Kentucky  statute  does  not,  in  our  judgment,  contravene  the  pro- 
visions of  the  Federal  Constitution,  or  of  any  statute  passed  in  pur- 
suance thereof.  Its  execution  creates  no  necessary  conflict  with 
national  authority,  and  interferes  with  no  right  secured  by  Federal 
legislation,  to  the  patentee  or  his  assigns. 

We  perceive  no  error  in  the  judgment,  and  it  is 

Affirmed. 


HERDIC   V.   EOESSLER. 
109  New  York,  127.     1888. 

[This  was  an  action  upon  a  promissory  note  in  which  failure  of 
consideration  was  pleaded  as  a  defence.  Judgment  was  entered  in 
the  trial  court  upon  a  verdict  in  favor  of  defendant,  which  judgment 
was  affirmed  on  appeal  to  the  General  Term  of  the  Supreme  Court 
(39  Hun,  198),  and  the  judgment  was  then  brought  to  the  Court  of 
Appeals  for  review.] 

The  verdict  of  the  jury  sustained  the  defence.  The  consideration 
was  the  sale  by  the  payee  to  the  defendant  of  the  right  to  make, 
use,  and  vend  a  patented  article,  under  an  invention  patented  by  the 
payee,  and  of  a  collateral  agreement  on  his  part  to  promote,  by 
means  of  orders  and  in  other  specified  ways,  the  business  of  the 
defendant.  The  words  "  given  for  a  patent-right  "  were  not  written 
or  printed  in  the  note,  as  required  by  the  act,  chapter  Qb  of  the  Laws 
of  1877.  The  note  was  in  the  ordinary  form  of  commercial  paper, 
and  was  given,  dated,  and  payable  at  Buffalo,  in  this  State,  where  the 
defendant  resides  and  where  the  agreement  was  made  in  pursuance 
of  which  the  note  was  given.  It  was  subsequently,  before  maturity, 
transferred  by  the  payee  to  the  plaintiff  in  the  State  of  Pennsylvania, 
where  the  parties  to  the  transfer  resided.  It  was  claimed,  and  there 
was  evidence  tending  to  show,  that  the  plaintiff  paid  value  for  the 
note,  without  notice  of  any  defence,  but  it  was  proved  and  found  by 
the  jury  that  he  had  notice  when  he  purchased  it  of  the  consideration 
for  which  it  was  given.  The  defendant  was  permitted,  against  the 
objection  and  exception  of  the  plaintiff,  to  read  in  evidence  a  statute 
of  Pennsylvania,  similar  to  the  statute  of  New  York  above  referred 
to.  The  plaintiff  requested  the  court  to  charge  tlie  jury  that  the 
statute,  chapter  65  of  the  Laws  of  1877,  was  unconstitutional  and 


496  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

void.  The  court  refused  to  charge  as  requested,  to  which  refusal 
the  plaintiff  excepted. 

AxDKKWS,  J.  The  validity  of  the  statute,  chapter  65  of  the  Laws 
of  1877,  is  tlie  principal  question  in  this  case.  It  is  entitled  "An 
Act  to  reguhite  the  execution  and  transfer  of  negotiable  instruments 
given  for  patent-rights."  The  first  section  declares  that  "  whenever 
any  promissory  note  or  other  negotiable  instrument  shall  be  given, 
the  consideration  of  which  shall  consist,  in  whole  or  in  part,  of  the 
right  to  make,  use,  or  vend  any  patent  invention  or  inventions  claimed 
or  represented  by  the  vendor  at  the  time  of  the  sale  to  be  patented, 
the  words  *  given  for  a  patent-right '  shall  be  pi'ominently  and 
legibly  written  or  printed  on  the  face  of  such  note  or  instrument 
above  the  signature  thereto  ;  and  such  note  or  instrument  in  the 
hands  of  any  purchaser  or  holder  shall  be  subject  to  the  same  de- 
fences as  in  the  hands  of  the  original  owner."  Then  follows  a 
provision  in  the  second  section  to  the  effect  that  if  any  person  shall 
take,  sell,  or  transfer  any  promissory  note  or  other  negotiable  instru- 
ment, not  having  such  words  therein,  knowing  the  consideration  of 
such  note  or  instrument  to  consist,  in  whole  or  in  part,  of  the  right 
to  make,  use,  and  vend  any  patent  invention,  [he]  shall  be  guilty  of  a 
misdemeanor. 

The  constitutionality  of  the  act  is  assailed  on  the  ground  that  it  is 
in  contravention  of  article  1,  section  8,  of  the  Constitution  of  the 
United  States,  and  the  acts  of  Congress  enacted  in  pursuance  thereof, 
which  secure  to  a  patentee,  for  a  limited  time,  "  the  full  and  exclu- 
sive right  and  liberty  of  making,  using,  and  vending  to  others  to  be 
used,"  his  invention  or  discovery.  5  U.  S.  Stat,  at  Large,  117.  It  is 
insisted  that  the  statute  of  the  State  operates  as  an  unlawful  re- 
straint upon  the  right  of  sale  conferred  upon  tlie  patentee  by  the 
acts  of  Congress.  This  question  has  been  considered  by  the  highest 
courts  in  the  States  of  Pennsylvania  and  Ohio,  under  statutes  sub- 
stantially like  the  statute  in  this  State,  and,  in  the  opinions  delivered, 
the  constitutionality  of  the  legislation  was  maintained.  Tod  v. 
Wick,  36  Ohio  St.  370;  Haskell  v.  Jones,  86  Pa.  St.  173.  The  plain- 
tiff, however,  in  opposition  to  this  view,  cites  several  cases.  Ex 
pf/rte  Robinson,  2  Biss.  309;  Woolen  v.  Banker,  U.  S.  Ct.  Court, 
S.  D.  Ohio,  2  Flipp.  33;  In  re  Lake,  U.  S.  Ct.  Court,  N.  D.  Ohio, 
Matthews,  J. ;  Cranson  v.  Smith,  37  Mich.  309 ;  Wilch  v.  Phelps, 
14  Neb.  134;  State  v.  Lockwood,  43  Wis.  403.  The  leading  case 
cited  by  the  plaintiff,  Ex  parte  Robinson,  arose  under  a  statute  of 
Indiana,  making  it  unlawful  for  a  person  to  sell,  or  offer  to  sell,  any 
patent-right  within  that  State  without  first  filing  an  authenticated 
copy  of  the  letters-patent  with  the  clerk  of  the  court,  and  at  the 
same  time  making  an  affidavit  before  the  clerk  that  the  letters-patent 
were  genuine  and  had  not  been  i-evoked  or  annulled,  and  that  he  had 
full  authority  to  sell,  &c.  It  was  held  by  Mr.  Justice  Davis,  sitting 
at  circuit,  that  the  law  then  in  question  was  unconstitutional  and 


SECT.  X.]  HERDIC    V.   ROESSLER.  497 

void,  as  an  infringement  upon  the  right  of  sale  secured  to  a  patentee 
by  the  letters-patent.  The  other  cases  mentioned  are  founded  mainly 
upon  the  authority  of  £Jx  parte  Robinson.  It  will  be  observed  that 
even  if  that  case  was  well  decided,  it  would  not  necessarily  determine 
a  case  arising  under  our  statute,  which  does  not  undertake  to  impose 
conditions  upon  the  right  to  sell  a  patented  invention,  but  simply 
prescribes  that  if  a  negotiable  instrument  is  taken  upon  such  sale, 
the  words  "  given  for  a  patent-right"  shall  be  inserted,  and  subjects 
the  note  to  defences  existing  against  its  original  holder,  notwith- 
standing its  transfer.  The  Supreme  Court  of  the  United  States  in  a 
recent  case  (Patterson  v.  State  of  Kentucky,  97  U.  S.  501)  had 
occasion  to  pass  upon  the  validity  of  a  statute  of  Kentucky,  which 
prohibited  the  sale  in  that  State  of  illuminating  oils  not  bearing  a 
prescribed  test.  The  plaintiff  was  the  patentee  of  an  oil  which,  if 
the  statute  was  valid,  could  not  be  sold  at  all  in  Kentucky,  as  it 
could  not  be  made  so  as  to  conform  it  to  the  statute  standard.  It 
was  claimed  that  the  law  was  an  invasion  of  the  right  secured  to  the 
patentee  by  his  patent,  to  sell  his  invention.  The  opinion  of  Mr. 
Justice  Harlan  in  the  case,  upholding  the  statute,  in  which  the 
court -concurred,  is  an  able  and  satisfactory  exposition  of  the  doctrine 
that  the  patent  laws  do  not  interfere  with  the  power  of  a  State  to 
pass  laws  for  the  protection  and  security  of  its  citizens  in  their 
persons  and  property,  or  in  respect  to  matters  of  internal  polity, 
although  such  laws  may  incidentally  affect  the  profitable  use  or  sale 
by  a  patentee  of  his  invention.  The  Supreme  Court  of  Indiana, 
after  the  decision  in  Patterson  v.  Kentucky,  affirmed  the  constitu- 
tionality of  the  Indiana  statute,  reversing  its  previous  decisions  to 
the  contrary  founded  upon  Ex  jmrte  Robinson.  Brechbill  v.  Ran- 
dall, 102  Ind.  528 ;  New  v.  Walker,  108  id.  365.  Under  this  state 
of  the  authorities  we  feel  at  liberty  to  declare  our  concurrence  in  the 
views  expressed  by  the  courts  of  Ohio  and  Pennsylvania  upon  the 
general  question.  The  right  of  a  discoverer  to  sell  his  invention  is 
not  derived  from  his  patent.  This  riglit  would  exist  although  no 
patent  laws  had  been  enacted.  What  he  obtains  by  his  patent  is  the 
right  to  exclude  others  from  selling  or  using  his  invention  for  the 
period  specified,  the  right  to  sell  or  use  which  would,  except  for 
the  protection  of  the  patent  laws,  be  open  to  all  the  world.  The 
statute  of  New  York,  now  in  question,  in  no  way  interferes  with  this 
exclusive  right.  A  State  law  directly  infringing  this  right  would 
unquestionably  be  void.  The  law  of  Congress  and  the  State  law  are 
not  in  conflict.  The  object  of  one  is  to  secure  to  the  inventor  an 
exclusive  right  to  use  or  sell  his  invention,  and  the  object  of  the 
other  is  to  protect  against  fraud  in  sales.  The  State  law  operates 
upon  the  thing  taken  for  the  right  sold,  when  that  is  a  negotiable 
instrument,  by  requiring  the  consideration  to  be  plainly  expressed, 
and  thus  subjecting  the  instrument,  wlien  transferred,  to  the  same 
defences  iu  the  hands  of  the  transferee  as  in  the  hands  of  the  original 

32 


498  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

holder.  The  statute  does  not  make  the  note  illegal,  although  the 
statutory  words  are  omitted,  nor  does  it  take  from  a  bona  fide 
transferee  for  value  before  maturity,  without  notice  of  the  con- 
sideration, the  protection  accorded  to  commercial  paper  by  the  law 
merchant.  This  is  the  view  taken  in  the  case  first  cited,  and  is, 
we  think,  the  true  construction  of  the  statute.  It  is  impossible  to 
say  even  that  the  statute  operates  to  the  disadvantage  of  the  patentee. 
It  may  restrict  the  currency  of  the  paper  taken  on  sales  of  patent- 
rights,  but,  on  the  other  hand,  it  may  facilitate  sales  by  inducing 
confidence  on  the  part  of  purchasers,  that  they  will  be  protected  in 
case  of  fraud  or  other  defence.  We  refer,  for  a  fuller  discussion  on 
the  general  question,  to  the  cases  cited.  The  admission  of  the  Penn- 
sylvania statute  in  evidence,  if  erroneous,  was  harmless.  The  right 
of  the  defendant  to  interpose  his  defence  against  the  plaintiff,  the 
indorsee  of  the  note,  although  he  was  a  purchaser  for  value,  provided 
he  had  notice  of  the  consideration,  was  secured  to  him  by  the  lex 
loci,  and  the  plaintiff  took  the  paper  subject  to  all  the  infirmities 
which  attached  to  it  by  the  law  of  the  place  where  the  contract  was 
made  and  was  to  be  performed.  Story's  Prom.  Notes,  §  168  et  seq. ; 
2  Kent's  Com.  459.  There  is  no  other  question  which  requires 
special  notice. 

The  judgment  should  be  affirmed. 


DALE  TILE   MANUFACTUKING   COMPANY  v.  HYATT. 

125  United  States,  46.     1888. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  defendant  contended  in  the  courts  of  New  York  that  those 
courts  had  no  jurisdiction,  because  the  plaintiff's  right  to  main- 
tain her  action  depended  upon  the  question  whether  the  second 
reissue  of  her  patent  was  valid  or  invalid  under  the  patent  laws  of 
the  United  States,  and  that  of  that  question  the  courts  of  the 
United  States  had  exclusive  jurisdiction.  The  judgments  of  each 
court  of  the  State,  holding  that  the  question  of  the  validity  of  that 
reissue  could  not  be  contested  in  this  action,  and  assuming  jurisdic- 
tion to  render  judgment  against  the  defendant,  necessarily  involved 
a  decision  against  the  immunity  claimed  by  the  defendant  under  the 
Constitution  and  laws  of  the  United  States,  which  this  court  has 
jurisdiction  to  review. 

The  motion  to  dismiss  must  therefore  be  denied.  But  the  decision 
was  so  clearly  right,  that  the  motion  to  affirm  is  granted. 

The  action  was  upon  an  agreement  in  writing,  by  which  the  plain- 
tiff, as  owner  of  letters-patent,  already  once  reissued,  granted  to  the 


SECT.  X.]  DALE   TILE   MANUFACTURING    CO,    V.    HYATT.  499 

defendant  an  exclusive  license  to  make  and  sell  the  patented  articles 
within  a  certain  territory,  during  the  term  of  the  patent  and  of  any 
extension  or  renewal  thereof  ;  and  the  defendant  expressly  ac- 
knowledged the  validity  of  the  letters-patent,  and  stipulated  that 
the  plaintitf  might,  without  prejudice  to  this  agreement,  obtain 
further  reissues,  and  promised  to  pay  to  the  plaintitf  certain 
royalties  so  long  as  no  decision  adverse  to  the  validity  of  the  patent 
should  have  been  rendered. 

The  defendant  contended  that  this  was  a  case  arising  under  the 
patent  laws,  of  which  the  courts  of  the  United  States  have  exclusive 
jurisdiction.  Rev.  Stat.  §  629,  cl.  9;  §  711,  cl.  5.  But  it  is  clearly 
established  by  a  series  of  decisions  of  this  court,  that  an  action  upon 
sucli  an  agreement  as  that  here  sued  on  is  not  a  case  arising  under 
the  patent  laws. 

It  has  been  decided  that  a  bill  in  equity  in  the  Circuit  Court  of  the 
United  States  by  the  owner  of  letters-patent,  to  enforce  a  contract 
for  the  use  of  the  patent-right,  or  to  set  aside  such  a  contract  because 
the  defendant  has  not  complied  with  its  terms,  is  not  within  the  acts 
of  Congress,  by  which  an  appeal  to  this  court  is  allowable  in  cases 
arising  under  the  patent  laws,  without  regard  to  the  value  of  the 
matter  in  controversy.  Act  of  July  4, 183G,  c.  357,  §  17,  5  Stat.  124; 
Rev.  Stat.  §  699;  Wilson  v.  Sandford,  10  How.  99;  Brown  v.  Shan- 
non, 20  How.  55. 

Following  those  decisions,  it  was  directly  adjudged  in  Kartell  v. 
Tilghman,  99  U.  S.  547,  that  a  bill  in  equity  by  a  patentee,  alleging 
that  the  defendants  had  broken  a  contract  by  which  they  had  agreed 
to  pay  him  a  certain  royalty  for  the  use  of  his  invention  and  to  take 
a  license  from  him,  and  thereupon  he  forbade  them  to  use  it,  and 
they  disregarded  the  prohibition,  and  he  filed  this  bill  charging  them 
as  infringers,  and  praying  for  an  injunction,  an  account  of  profits  and 
damages,  was  not  a  case  arising  under  the  patent  laws,  and  therefore, 
the  parties  being  citizens  of  the  same  State,  not  within  the  jurisdic- 
tion of  the  Circuit  Court  of  the  United  States.  And  the  judges  who 
dissented  from  that  conclusion  admitted  it  to  be  perfectly  well 
settled  "  that  where  a  suit  is  brought  on  a  contract  of  which  a 
patent  is  the  subject-matter,  either  to  enforce  such  contract,  or  to 
annul  it,  the  case  arises  on  the  contract,  or  out  of  the  contract,  and 
not  under  the  patent  laws."     99  U.  S.  558. 

In  the  still  later  case  of  Albright  v.  Teas,  106  U.  S.  613,  a  patentee 
filed  a  bill  in  equity  in  a  State  court,  setting  up  a  contract  by  which 
he  agreed  to  assign  his  patent  to  the  defendants  and  they  agreed  to 
pay  him  certain  royalties,  and  alleging  that  the  defendants  had 
refused  to  account  for  or  pay  such  royalties  to  him,  and  had  fraudu- 
lently excluded  him  from  inspecting  their  books  of  account.  The 
defendants  answered  that  the  plaintiff  had  been  paid  all  the 
royalties  to  which  he  was  entitled,  and  that,  if  he  claimed  more, 
it  was  because   he   insisted  that  goods  made  under  another  patent 


500  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

were  an  infringement  of  his.  This  court  held  that  it  was  not  a 
case  arising  under  the  Constitution  or  laws  of  the  United  States, 
removable  as  such  into  the  Circuit  Court  under  the  act  of  March 
3,  1875,  c.  137,  §  2.     18  Stat.  470. 

It  was  said  by  Chief  Justice  Taney  in  Wilson  v.  Sandford,  and 
repeated  by  the  court  in  Kartell  v.  Tilghman,  and  in  Albright  v. 
Teas,  "The  dispute  in  this  case  does  not  arise  under  any  act  of 
Congress  ;  nor  does  the  decision  depend  upon  the  construction  of 
any  law  in  relation  to  patents.  It  arises  out  of  the  contract  stated 
in  the  bill ;  and  there  is  no  act  of  Congress  providing  for  or  regulat- 
ing contracts  of  this  kind.  The  rights  of  the  parties  depend  alto- 
gether upon  common-law  and  equity  principles."  10  How.  101, 
102;  99  U.  S.  552;  106  U.  S.  619. 

Those  words  are  equally  applicable  to  the  present  case,  except 
that,  as  it  is  an  action  at  law,  the  principles  of  equity  have  no 
bearing.  This  action,  therefore,  was  within  the  jurisdiction,  and, 
the  parties  being  citizens  of  the  same  State,  within  the  exclusive 
jurisdiction,  of  the  State  courts ;  and  the  only  Federal  question  in 
the  case  was  rightly  decided. 

Upon  the  merits  of  the  case,  it  follows  from  what  has  been  already 
said,  that  no  question  is  presented,  of  which  this  court,  upon  this 
writ  of  error,  has  jurisdiction.  Murdock  v.  Memphis,  20  Wall.  590. 
The  grounds  of  the  judgment  below  appear  in  the  opinion  of  the 
Court  of  Appeals,  to  which,  under  the  existing  acts  of  Congress, 
this  court  is  at  liberty  to  refer.  Philadelphia  Fire  Association  v.  New 
York,  119  U.  S.  110  ;  Kreiger  v.  Shelby  County  Railroad,  [125  U.  S.] 
43.  Whether  that  court  was  right  in  its  suggestion  that  it  would 
have  no  jurisdiction  to  determine  the  validity  of  the  second  reissue 
if  incidentally  drawn  in  question  in  an  action  upon  an  agreement 
between  the  parties,  we  need  not  consider ;  inasmuch  as  it  expressly 
declined  to  pass  upon  any  such  question,  because  it  held  that,  in  this 
action  to  recover  royalties  due  under  the  agreement,  the  defendant, 
while  continuing  to  enjoy  the  privileges  of  the  license,  was  esto])ped 
to  deny  the  validity  of  the  patent,  or  of  any  reissue  thereof.  The 
decision  was  based  upon  the  contract  between  the  parties ;  and  the 
court  did  not  decide,  nor  was  it  necessary  for  the  determination  of 
the  case  that  it  should  decide  any  question  depending  on  the  con- 
struction or  effect  of  the  patent  laws  of  the  United  States.  Kins- 
man V.  Parkhurst,  18  How.  289  ;  Brown  v.  Atwell,  92  U.  S.  327. 

Judgment  affirmed. 


SECT.  XI.]  UNITED    STATES   V.    SMITH.  501 


Section  XI.  —  Piracies,  Felonies  on   the  High 
Seas,  <fec. 


UNITED   STATES   v.   SMITH. 
5  Wheaton,  153 ;  4  Curtis,  597.     1820. 

This  was  an  indictment  for  piracy  against  the  prisoner,  Thomas 
Smith,  before  the  Circuit  Court  of  Virginia,  on  the  act  of  Congress  of 
the  3d  of  March,  1819  (3  Stats,  at  Large,  513). 

The  jury  found  a  special  verdict,  as  follows  :  "  We,  of  the  jury, 
find,  that  the  prisoner,  Thomas  Smith,  in  the  month  of  March,  1819, 
and  others,  were  part  of  the  crew  of  a  private  armed  vessel,  called 
The  Creollo  (commissioned  by  the  government  of  Buenos  Ayres,  a 
colony  then  at  war  with  Spain),  and  lying  in  the  port  of  Margaritta; 
that -in  the  month  of  March,  1819,  the  said  prisoner  and  others  of 
the  crew  mutinied,  confined  their  officer,  left  the  vessel,  and  in  the 
said  port  of  Margaritta,  seized,  by  violence,  a  vessel  called  The  Irre- 
sistible, a  private  armed  vessel,  lying  in  that  port,  commissioned  by 
the  government  of  Artigas,  who  was  also  at  war  with  Spain  ;  that 
the  said  prisoner  and  others,  having  so  possessed  themselves  of  the 
said  vessel,  The  Irresistible,  appointed  their  officers,  proceeded  to  sea 
on  a  cruise,  without  any  documents  or  commission  whatever;  and 
while  on  that  cruise,  in  the  month  of  April,  1819,  on  the  high  seas, 
committed  the  offence  charged  in  the  indictment,  by  the  plunder  and 
robbery  of  the  Spanish  vessel  therein  mentioned.  If  the  plunder 
and  robbery  aforesaid  be  piracy  under  the  act  of  the  Congress  of 
the  United  States,  entitled  '  An  Act  to  protect  the  commerce  of  the 
United  States,  and  punish  the  crime  of  piracy,'  then  we  find  the 
said  prisoner  guilty;  if  the  plunder  and  robbery,  above  stated,  be 
not  piracy  under  the  said  act  of  Congress,  then  we  find  him  not 
guilty."  _ 

The  Circuit  Court  divided  on  the  question,  whether  this  be  piracy  as 
defined  by  the  law  of  nations  so  as  to  be  punishable  under  the  act  of 
Congress  of  the  3d  of  March,  1819,  and  thereupon  the  question  was 
certified  to  this  court  for  its  decision. 

Story,  J.,  delivered  the  opinion  of  the  court. 

The  act  of  Congress  upon  which  this  indictment  is  founded  pro- 
■vides,  "that  if  any  person  or  persons  whatsoever,  shall,  upon  the 
high  seas,  commit  the  crime  of  piracy,  as  defined  by  the  law  of 
nations,  and  such  offender  or  offenders  shall  be  brought  into,  or 
found  in  the  United  States,  every  such  oflfender  or  offenders  shall, 
upon  conviction  thereof,  &c.,  be  punished  with  death." 


502  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

The  first  point  made  at  the  bar  is,  whether  this  enactment  be  a 
constitutional  exercise  of  the  authority  delegated  to  Congress  upon 
the  subject  of  piracies.  The  Constitution  declares  that  Congress 
shall  have  power  "  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations." 
The  argument  which  has  been  urged  in  behalf  of  the  prisoner  is,  that 
Congress  is  bound  to  define,  in  terms,  the  offence  of  piracy,  and  is  not 
at  liberty  to  leave  it  to  be  ascertained  by  judicial  interpretation.  If 
the  argument  be  well  founded,  it  seems  admitted  by  the  counsel  that 
It  equally  applies  to  the  eighth  section  of  the  act  of  Congress  of  1790 
(1  Stats,  at  Large,  113),  c.  9,  which  declares  that  robbery  and  murder 
committed  on  the  high  seas  shall  be  deemed  piracy ;  and  yet, 
notwithstanding  a  series  of  contested  adjudications  on  this  sec- 
tion, no  doubt  has  hitherto  been  breathed  of  its  conformity  to  the 
Constitution. 

In  our  judgment,  the  construction  contended  for  proceeds  upon  too 
narrow  a  view  of  the  language  of  the  Constitution.  The  power  given 
to  Congress  is  not  merely  "to  define  and  punish  piracies  ;  "  if  it  were, 
the  words  "to  define"  would  seem  almost  superfluous,  since  the 
power  to  punish  piracies  would  be  held  to  include  the  power  of  ascer- 
taining and  fixing  the  definition  of  the  crime.  And  it  has  been  very 
justly  observed,  in  a  celebrated  commentary,  that  the  definition  of 
piracies  might  have  been  left,  without  inconvenience,  to  the  law 
of  nations,  though  a  legislative  definition  of  them  is  to  be  found  in 
most  municipal  codes.  The  Federalist,  No.  42,  p.  276.  But  the 
power  is  also  given  "to  define  and  punish  felonies  on  the  high 
seas,  and  offences  against  the  law  of  nations."  The  term  "  felonies  " 
has  been  supposed,  in  the  same  work,  not  to  have  a  very  exact  and 
determinate  meaning  in  relation  to  offences  at  the  common  law 
committed  within  the  body  of  a  county.  However  this  may  be.  in 
relation  to  offences  on  the  high  seas,  it  is  necessarily  somewhat  inde- 
terminate, since  the  term  is  not  used  in  the  criminal  jurisprudence  of 
the  admiralty  in  the  technical  sense  of  the  common  law.  See  3  Inst. 
112  ;  Hawk.  P.  C.  c.  37 ;  Moore,  576.  Offences,  too,  against  the  law 
of  nations,  cannot,  with  any  accuracy,  be  said  to  be  completely 
ascei'tained  and  defined  in  any  public  code  recognized  by  the  com- 
mon consent  of  nations.  In  respect,  therefore,  as  well  to  felonies  on 
the  high  seas  as  to  offences  against  the  law  of  nations,  there  is  a 
peculiar  fitness  in  giving  the  power  to  define  as  well  as  to  punisli ; 
and  there  is  not  the  slightest  reason  to  doubt  that  this  consideration 
had  very  great  weight  in  producing  the  phraseology  in  question. 

But  supposing  Congress  were  bound,  in  all  the  cases  included  in 
the  clause  under  consideration,  to  define  the  offence,  still,  there  is 
nothing  which  restricts  it  to  a  mere  logical  enumeration,  in  detail,  of 
all  the  facts  constituting  the  offence.  Congress  may  as  well  define 
by  using  a  term  of  a  known  and  determinate  meaning,  as  by  an 
express  enumeration  of  all  the  particulars  included  in  that  term. 


SECT.  XI.]  UNITED    STATES   V.    SMITH.  503 

That  is  certain  which  is  by  necessary  reference  made  certain.  When 
the  act  of  1790  declares  that  any  person  who  shall  commit  the  crime 
of  robbery,  or  murder,  on  the  high  seas  shall  be  deemed  a  pirate,  the 
crime  is  not  less  clearly  ascertained  than  it  would  be  by  using 
the  definitions  of  these  terms  as  they  are  found  in  our  treatises  of 
the  common  law.  In  fact,  by  such  a  reference,  the  definitions  are 
necessarily  included,  as  much  as  if  they  stood  in  the  text  of  the  act. 
In  respect  to  murder,  where  "  malice  aforethought "  is  of  the  essence 
of  the  offence  even  if  the  common-law  definition  were  quoted  in  ex- 
press terms,  we  should  still  be  driven  to  deny  that  the  definition  was 
perfect,  since  the  meaning  of  "  malice  aforethought "  would  remain 
to  be  gathered  from  the  common  law.  There  would  then  be  no  end 
to  our  difficulties,  or  our  definitions,  for  each  would  involve  some 
terms  which  might  still  require  some  new  explanation.  Such  a  con- 
struction of  the  Constitution  is,  therefore,  wholly  inadmissible.  To 
define  piracies,  in  the  sense  of  the  Constitution,  is  merely  to  enumer- 
ate the  crimes  which  shall  constitute  piracy;  and  this  may  be  done 
either  by  a  reference  to  crimes  having  a  technical  name,  and  deter- 
minate extent,  or  by  enumerating  the  acts  in  detail,  upon  which  the 
punishment  is  inflicted. 

It  is  next  to  be  considered  whether  the  crime  of  piracy  is  defined 
by  the  law  of  nations  with  reasonable  certainty.     What  the  law  of 
nations  on  this  subject  is,   may   be  ascertained   by  consulting   the 
works    of   jurists    writing    professedly    on    public   law  ;    or   by   the 
general  usage  and  practice  of  nations  ;  or  by  judicial  decisions  recog- 
nizing and  enforcing  that  law.     There  is  scarcely  a  writer  on  the  law 
of  nations  who  does  not  allude  to  piracy  as  a  crime  of  a  settled  and 
determinate  nature  ;  and  whatever  may  be  the  diversity  of  definitions, 
in  other    respects,    all  writers  concur  in  holding   that  robbery,  or 
forcible  depredations  upon    the  sea,  animo  furandi,  is  piracy.     The 
same  doctrine  is  held  by  all  the  great  writers  on   maritime  law,  in 
terms  that  admit  of   no  reasonable  doubt.     The  common  law,  too, 
recognizes  and  punishes  piracy  as  an  offence,  not  against  its  own 
municipal  code,  but  as  an  offence  against  the  law  of  nations  (which 
is  part  of  the  common  law),  as  an  offence  against  the  universal  law 
of   society,   a  pirate  being    deemed  an   enemy  of   the  human   race. 
Indeed,  until  the  statute  of  28th  of  Henry  VIII.,  c.  15,  piracy  was 
punishable  in  England  only  in  the  admiralty,  as  a  civil-law  offence  ; 
and  that  statute,  in  changing  the  jurisdiction,  has  been  universally 
admitted  not  to  have  changed   the  nature  of  the  offence.     Hawk. 
P.  C.  c.  37,  s.  2;  3  Inst.  112.     Sir  Charles  Hedges,  in  his  charge  at 
the  admiralty  sessions,  in  the  case  of  Eex  v.  Dawson,  5  State  Trials, 
declared,  in  emphatic  terms,  that  "piracy  is  only  a  sea  term   for 
robbery,  piracy  being  a  robbery  committed  within  the  jurisdiction 
of  the  admiralty."     Sir  Leoline  Jenkins,  too,  on  a  like  occasion, 
declared   that  "a  robbery,  when  committed   upon  the  sea,  is  what 
we  call  piracy ; "  and  he  cited  the  civil-law  writers  in  proof.     And 


604  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

it  is  manifest  from  the  language  of  Sir  William  Blackstone,  4  Bl. 
Coram.  73,  in  his  comments  on  piracy,  that  he  considered  the 
common-law  definition  as  distinguishable  in  no  essential  respect  from 
that  of  the  law  of  nations.  So  that,  whether  we  advert  to  writers 
on  the  common  law,  or  the  maritime  law,  or  the  law  of  nations,  we 
shall  find  that  they  universally  treat  of  piracy  as  an  offence  against 
the  law  of  nations,  and  that  its  true  definition,  by  that  law,  is  rob- 
bery upon  the  sea.  And  the  general  practice  of  all  nations  in  punish- 
ing all  persons,  whether  natives  or  foreigners,  who  have  committed 
this  offence  against  any  persons  whatsoever,  with  whom  they  are  in 
amity,  is  a  conclusive  proof  that  the  offence  is  supposed  to  depend, 
not  upon  the  particular  provisions  of  any  municipal  code,  but  upon 
the  law  of  nations,  both  for  its  definition  and  punishment.  We  have, 
therefore,  no  hesitation  in  declaring  that  piracy,  by  the  law  of 
nations,  is  robbery  upon  the  sea,  and  that  it  is  sufficiently  and  con- 
stitutionally defined  by  the  fifth  section  of  the  act  of  1819. 

Another  point  has  been  made  in  this  case,  which  is,  that  the 
special  verdict  does  not  contain  sufficient  facts  upon  which  the  court 
can  pronounce  that  the  prisoner  is  guilty  of  piracy.  We  are  of  a 
different  opinion.  The  special  verdict  finds  that  the  prisoner  is 
guilty  of  the  plunder  and  robbery  charged  in  the  indictment ;  and 
finds  certain  additional  facts  from  which  it  is  most  manifest  that  he 
and  his  associates  were,  at  the  time  of  committing  the  offence,  free- 
booters upon  the  sea,  not  under  the  acknowledged  authority  or 
deriving  protection  from  the  flag  or  commission  of  any  government. 
If,  under  such  circumstances,  the  offence  be  not  piracy,  it  is  difficult 
to  conceive  any  which  would  more  completely  fit  the  definition. 

It  is  to  be  certified  to  the  Circuit  Court  that  upon  the  facts  stated 
the  case  is  piracy,  as  defined  by  the  law  of  nations,  so  as  to  be  puu- 
ishable  under  the  act  of  Congress  of  the  3d  of  March,  1819.^ 


UNITED  STATES   v.    EODGERS. 

150  United  States,  249.     1893. 

In  February,  1888,  the  defendants,  Eobert  S.  Eodgers  and  others, 
were  indicted  in  the  District  Court  of  the  United  States  for  the 
Eastern  District  of  Michigan  for  assaulting,  in  August,  1887,  with 
a  dangerous  weapon,  one  James  Downs,  on  board  of  the  steamer 
Alaska,  a  vessel  belonging  to  citizens  of  the  United  States,  and  then 
being  within  the  admiralty  jurisdiction  of  the  United  States,  and 
not  within  the  jurisdiction  of  any  particular  State  of  the  United 

1  Mr.  Justice  Livixgstox  delivered  a  dissenting  opinion. 


SECT.  XI.]  UNITED    STATES   V.    RODGERS.  605 

States,  viz.,  within  the  territorial  limits  of  the  Dominion  of 
Canada. 

The  indictment  contained  six  counts,  charging  the  offence  to  have 
been  committed  in  different  ways,  or  with  ditferent  intent,  and  was 
remitted  to  the  Circuit  Court  for  the  Sixth  Circuit  of  the  Eastern 
District  of  Michigan.  There  the  defendant  Rodgers  filed  a  plea  to 
the  jurisdiction  of  the  court,  alleging  that  it  had  no  jurisdiction  of 
the  matters  cliarged,  as  appeared  on  the  face  of  the  indictment, 
and  to  the  plea  a  demurrer  was  filed.  Upon  this  demurrer  the 
judges  of  the  Circuit  Court  were  divided  in  opinion,  [and  certified 
to  this  court  the  question  "whether  the  courts  of  the  United  States 
have  jurisdiction,  under  section  5346  of  the  Revised  Statutes  of  the 
United  States,  to  try  a  person  for  an  assault  with  a  dangerous 
weapon,  committed  on  a  vessel  belonging  to  a  citizen  of  the  United 
States,  when  such  vessel  is  in  the  Detroit  River,  out  of  the  juris- 
diction of  any  particular  State  and  within  the  territorial  limits  of 
the  Dominion  of  Canada".] 

Section  5346  of  the  Revised  Statutes,  upon  which  the  indictment 
was  found,  is  as  follows:  — 

"Sec.  5346.  Every  person  who,  upon  the  high  seas,  or  in  any 
arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin,  or  bay,  within 
the  admiralty  jurisdiction  of  the  United  States,  and  out  of  the  juris- 
diction of  any  particular  State,  on  board  any  vessel  belonging  in 
whole  or  part  to  the  United  States,  or  any  citizen  thereof,  with  a 
dangerous  weapon,  or  with  intent  to  perpetrate  any  felony,  commits 
an  assault  on  another  shall  be  punished  by  a  fine  of  not  more  than 
three  thousand  dollars  and  by  imprisonment  at  hard  labor  not 
more  than  three  years." 

The  statute  relating  to  the  place  of  trial  in  this  case  is  contained 
in  section  730  of  the  Revised  Statutes,  which  is  as  follows:  — 

"Sec.  730.  The  trial  of  all  offences  committed  upon  the  high  seas 
or  elsewhere,  out  of  the  jurisdiction  of  any  particular  State  or  dis- 
trict, shall  be  in  the  district,  where  the  offender  is  found  or  into 
which  he  is  first  brought." 

Mk.  Justice  Field  delivered  the  opinion  of  the  court.  Several 
questions  of  interest  arise  upon  the  construction  of  section  5346  of 
the  Revised  Statutes,  upon  which  the  indictment  in  this  case  was 
found.  The  principal  one  is  whether  the  term  "high  seas,"  as 
there  used,  is  applicable  to  the  open,  unenclosed  waters  of  the  Great 
Lakes,  between  which  the  Detroit  River  is  a  connecting  stream. 
The  term  was  formerly  used,  particularly  by  writers  on  public  law, 
and  generally  in  official  communications  between  different  govern- 
ments, to  designate  the  open,  unenclosed  waters  of  the  ocean,  or  of 
the  British  seas,  outside  of  their  ports  and  havens.  At  one  time  it 
was  claimed  that  the  ocean,  or  portions  of  it,  were  subject  to  the 
exclusive  use  of  particular  nations.  The  Spaniards,  in  the  16th 
century,  asserted  the  right  to  exolude  all  others  from  the  Pacific 


506  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV.  i 

Ocean.     The   Portuguese  claimed,    with  the   Spaniards,  under  the  i 

grant  of  Pope  Alexander  VI.,    the  exclusive   use  of   the  Atlantic  I 

Ocean  west  and  south  of  a  designated  line.     And  the  English,  in  i 

the  17th  century,  claimed  the  exclusive  right  to  navigate  the  seas  i 

surrounding  Great  Britain.     Woolsey  on  International  Law,  §  55, 

In   the  discussions  which  took  place  in  support  of  and  against  ! 

these  extravagant  pretensions  the  terra  "high  seas"  was  applied,  in  i 

the  sense  stated.     It  was  also  used  in  that  sense  by  English  courts  1: 

and  law  writers.     There  was  no  discussion  with  them   as  to  the  i 

waters  of  other  seas.     The  public  discussions  were  generally  limited  i 

to  the  consideration  of  the  question  whether  the  high  seas,  that  is, 
the  open,  unenclosed  seas,  as  above  defined,  or  any  portion  thereof, 
could   be   the   property  or   under  the  exclusive  jurisdiction  of  any  i 

nation,  or  whether  they  were  open  and  free  to  the  navigation  of  all  | 

nations.  The  inquiry  in  the  English  courts  was  generally  limited 
to  the  question  whether  the  jurisdiction  of  the  admiralty  extended 
to  the  waters  of  bays  and  harbors,  such  extension  depending  upon 
the  fact  whether  they  constituted  a  part  of  the  high  seas. 

In  his  treatise  on  the  rights  of  the  sea,  Sir  Matthew  Hale  says: 
"The  sea  is  either  that  which  lies  within  the  body  of  a  county,  or 
without.  That  arm  or  branch  of  the  sea  which  lies  within  the 
fauces  terrcp.,  where  a  man  may  reasonably  discern  between  shore 
and  shore,  is,  or  at  least  may  be,  within  the  body  of  a  county,  and, 
therefore,  within  the  jurisdiction  of  the  sheriff  or  coroner.  That 
part  of  the  sea  which  lies  not  within  the  body  of  a  county  is  called 
the  main  sea  or  ocean."  De  Jure  Maris,  c.  iv.  By  the  "main  sea" 
Hale  here  means  the  same  thing  expressed  by  the  term  "high  sea," 
—  '^ mare  altum,"  or  "Ze  haut  vieer.^^ 

In  Waring  v.  Clarke,  5  How.  441,  452,  this  court  said  that  it  had 
been  frequently  adjudicated  in  the  English  common-law  courts  since 
the  restraining  statutes  of  Richard  II.  and  Henry  IV.,  "that  high 
seas  mean  that  portion  of  the  sea  which  washes  the  open  coast."  In 
United  States  v.  Grush,  5  Mason,  290,  it  was  held  by  Mr.  Justice 
Story,  in  the  United  States  Circuit  Court,  that  the  term  "  high 
seas,"  in  its  usual  sense,  expresses  the  unenclosed  ocean  or  that 
portion  of  the  sea  which  is  without  Vae  fa^l(■es  terrce  on  the  sea  coast, 
in  contradistinction  to  that  which  is  surrounded  or  enclosed  between 
narrow  headlands  or  promontories.  It  was  the  open,  unenclosed 
waters  of  the  ocean,  or  the  open,  unenclosed  waters  of  the  sea, 
which  constituted  the  "high  seas"  in  his  judgment.  There  was  no 
distinction  made  by  him  between  the  ocean  and  the  sea,  and  there 
was  no  occasion  for  any  such  distinction.  The  question  in  issue 
was  whether  the  alleged  offences  were  committed  within  a  county  of 
Massachusetts  on  the  sea  coast,  or  without  it,  for  in  the  latter  case 
they  were  committed  upon  the  high  seas  and  within  the  statute.  It 
was  held  that  they  were  committed  in  the  county  of  Suffolk,  and 
thus  were  not  covered  by  the  statute. 


SECT.  XI.]  UNITED    STATES   V.   RODGERS.  507 

If  there  were  no  seas  other  than  the  ocean,  the  term  "high  seas" 
would  be  limited  to  the  open,  unenclosed  waters  of  the  ocean.  But 
as  there  are  other  seas  besides  the  ocean,  there  must  be  high  seas 
other  than  those  of  the  ocean.  A  large  commerce  is  conducted  on 
seas  other  than  the  ocean  and  the  English  seas,  and  it  is  equally 
necessary  to  distinguish  between  their  open  waters  and  their  ports 
and  havens,  and  to  provide  for  offences  on  vessels  navigating  those 
waters  and  for  collisions  between  them.  The  term  "high  seas" 
does  not,  in  either  case,  indicate  any  separate  and  distinct  body 
of  water;  but  only  the  open  waters  of  the  sea  or  ocean,  as  dis- 
tinguished from  ports  and  havens  and  waters  within  narrow  head- 
lands on  the  coast.  This  distinction  was  observed  by  Latin  writers 
between  the  ports  and  havens  of  the  Mediterranean  and  its  open 
waters  —  the  latter  being  termed  the  high  seas.^  In  that  sense  the 
terra  may  also  be  properly  used  in  reference  to  the  open  waters  of 
the  Baltic  and  the  Black  Sea,  both  of  which  are  inland  seas,  finding 
their  way  to  the  ocean  by  a  narrow  and  distant  channel.  Indeed, 
wherever  there  are  seas  in  fact,  free  to  the  navigation  of  all  nations 
and  people  on  their  borders,  their  open  waters  outside  of  the  portion 
"surrounded  or  enclosed  between  narrow  headlands  or  promon- 
tories,"'on  the  coast,  as  stated  by  j\Ir.  Justice  Stor}-,  or  "without 
the  body  of  a  county,"  as  declared  by  Sir  Matthew  Hale,  are 
properly  characterized  as  high  seas,  by  whatever  name  the  bodies 
of  water  of  which  they  are  a  part  may  be  designated.  Their  names 
do  not  determine  their  character.  There  are,  as  said  above,  high 
seas  on  the  Mediterranean  (meaning  outside  of  the  enclosed  waters 
along  its  coast),  upon  which  the  principal  commerce  of  the  ancient 
world  was  conducted  and  its  great  naval  battles  fought.  To  hold 
that  on  such  seas  there  are  no  high  seas,  within  the  true  meaning  of 
that  term,  that  is,  no  open,  unenclosed  waters,  free  to  the  naviga- 
tion of  all  nations  and  people  on  their  borders,  would  be  to  place 
upon  that  term  a  narrow  and  contracted  meaning.  We  prefer  to 
use  it  in  its  true  sense,  as  applicable  to  the  open,  unenclosed  waters 
of  all  seas,  than  to  adhere  to  the  common  meaning  of  the  term  two 
centuries  ago,  when  it  was  generally  limited  to  the  open  waters  of 
the  ocean  and  of  seas  surrounding  Great  Britain,  the  freedom  of 
which  was  then  the  principal  subject  of  discussion.  If  it  be  con- 
ceded, as  we  think  it  must  be,  that  the  open,  unenclosed  waters  of 
the  Mediterranean  are  high  seas,  that  concession  is  a  sufficient 
answer  to  the  claim  that  the  high  seas  always  denote  the  open 
waters  of  the  ocean. 

Whether  the  term  is  applied  to  the  open  waters  of  the  ocean  or 
of  a  particular  sea,  in  any  case,  will  depend  upon  the  context  or  cir* 

1  "  Insula  port>im 
EfiBcit  ohjectn  laterum,  quihus  omnis  ah  alto 
Ftangitur,  jnque  sinus  scindit  spse  nnda  reductos." 

The  ^Encid,  Lib.  I,  v.  159-161. 


508  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

cumstances  attending  its  use,  which  in  all  cases  affect,  more  or  less, 
the  meaning  of  language.  It  may  be  conceded  that  if  a  statement  is 
made  that  a  vessel  is  on  the  high  seas,  without  any  qualification  by 
language  or  circumstance,  it  will  be  generally  understood  as  mean- 
ing that  the  vessel  is  upon  the  open  waters  of  one  of  the  oceans  of 
the  world.  It  is  true,  also,  that  the  ocean  is  often  spoken  of  by 
writers  on  public  law  as  the  sea,  and  characteristics  are  then 
ascribed  to  the  sea  generally  which  are  properly  applicable  to  the 
ocean  alone;  as,  for  instance,  that  its  open  waters  are  the  highway 
of  all  nations.  Still  the  fact  remains  that  there  are  other  seas  than 
the  ocean  whose  open  waters  constitute  a  free  highway  for  navigation 
to  the  nations  and  people  residing  on  their  borders,  and  are  not  a 
free  highway  to  other  nations  and  people,  except  there  be  free 
access  to  those  seas  by  open  waters  or  by  conventional  arrange- 
ments. 

As  thus  defined,  the  term  would  seem  to  be  as  applicable  to  the 
open  Avaters  of  the  great  Northern  lakes  as  it  is  to  the  open  waters 
of  those  bodies  usually  designated  as  seas.  The  Great  Lakes  possess 
every  essential  characteristic  of  seas.  They  are  of  large  extent  in 
length  and  breadth;  they  are  navigable  the  whole  distance  in  either 
direction  by  the  largest  vessels  known  to  commerce;  objects  are  not 
distinguishable  from  the  opposite  shores;  they  separate,  in  many 
instances,  States,  and  in  some  instances  constitute  the  boundary 
between  independent  nations;  and  their  waters,  after  passing  long 
distances,  debouch  into  the  ocean.  The  fact  that  their  waters  are 
fresh  and  not  subject  to  the  tides,  does  not  affect  their  essential 
character  as  seas.  Many  seas  are  tideless,  and  the  waters  of  some 
are  saline  only  in  a  very  slight  degree. 

The  waters  of  Lake  Superior,  the  most  northern  of  these  lakes, 
after  traversing  nearly  400  miles,  with  an  average  breadth  of  over 
100  miles,  and  those  of  Lake  Michigan,  which  extend  over  350 
miles,  with  an  average  breadth  of  65  miles,  join  Lake  Huron,  and, 
after  flowing  about  250  miles,  with  an  average  breadth  of  70  miles, 
pass  into  the  river  St.  Clair;  thence  through  the  small  lake  of  St. 
Clair  into  the  Detroit  River;  thence  into  Lake  Erie  and,  by  the 
Niagara  River,  into  Lake  Ontario;  whence  they  pass,  by  the  river 
St.  Lawrence,  to  the  ocean,  making  a  total  distance  of  over  2,000 
miles.  Ency.  Britannica,  vol.  21,  p.  178.  The  area  of  the  Great 
Lakes,  in  round  numbers,  is  100,000  square  miles.  Ibid.  vol.  14, 
p.  217.  They  are  of  larger  dimensions  than  many  inland  seas  which 
are  at  an  equal  or  greater  distance  from  the  ocean.  The  waters  of 
the  Black  Sea  travel  a  like  distance  before  they  come  into  contact 
with  the  ocean.  Their  first  outlet  is  through  the  Bosphorus,  which 
is  about  20  miles  long  and  for  the  greater  part  of  its  way  less  than  a 
mile  in  width,  into  the  sea  of  Marmora,  and  through  that  to  the 
Dardanelles,  which  is  about  40  miles  in  length  and  less  than  four 
miles  in  width,  and  then  they  find  their  way  through  the  islands  of 


1 


SECT.  XI.]  UNITED    STATES   V.    RODGERS.  609 

the  Greek  Archipelago,  up  the  Mediterranean  Sea,  past  the  Straits 
of  Gibraltar  to  the  ocean,  a  distance,  also,  of  over  2,000  miles. 

In  the  Genesee  Chief  case,  12  How.  443,  this  court,  in  consider- 
ing whether  the  admiralty  jurisdiction  of  the  United  States  extended 
to  the  Great  Lakes,  and  speaking,  tlirough  Chief  Justice  Taney,  of 
the  general  character  of  those  lakes,  said:  "These  lakes  are,  in 
truth,  inland  seas.  Different  States  border  on  them  on  one  side, 
and  a  foreign  nation  on  the  other.  A  great  and  growing  commerce 
is  carried  on  upon  them  between  different  States  and  a  foreign 
nation,  which  is  subject  to  all  the  incidents  and  hazards  that  attend 
commerce  on  the  ocean.  Hostile  fleets  have  encountered  on  them, 
and  prizes  been  made;  and  every  reason  which  existed  for  the  grant 
of  admiralty  jurisdiction  to  the  general  government  on  the  Atlantic 
seas  applies  with  equal  force  to  the  lakes.  There  is  an  equal  neces- 
sity for  the  instance  and  for  the  prize  power  of  the  admiralty  court 
to  administer  international  law,  and  if  the  one  cannot  be  estab- 
lished, neither  can  the  other"  (12  How.  4.53). 

After  using  this  language,  the  Chief  Justice  commented  upon  the 
inequality  which  would  exist,  in  the  administration  of  justice, 
between  the  citizens  of  the  States  on  the  lakes,  if,  on  account  of  the 
absence  of  tide  water  in  those  lakes,  they  were  not  entitled  to  the 
remedies  afforded  by  the  grant  of  admiralty  jurisdiction  of  the  Con- 
stitution, and  the  citizens  of  the  States  bordering  on  the  ocean  or 
upon  navigable  waters  affected  by  the  tides.  The  court,  perceiving 
that  the  reason  for  the  exercise  of  the  jurisdiction  did  not  in  fact 
depend  upon  the  tidal  character  of  the  waters,  but  upon  their  prac- 
tical navigability  for  the  purposes  of  commerce,  disregarded  the 
test  of  tide  water  prevailing  in  England  as  inapplicable  to  our 
country  with  its  vast  extent  of  inland  waters.  Acting  upon  like 
considerations  in  the  application  of  the  term  "high  seas"  to  the 
waters  of  the  Great  Lakes,  which  are  equally  navigable,  for  the 
purposes  of  commerce,  in  all  respects,  with  the  bodies  of  water 
usually  designated  as  seas,  and  are  in  no  respect  affected  by  the 
tidal  or  saline  character  of  their  waters,  we  disregard  the  distinc- 
tions made  between  salt  and  fresh  water  seas,  which  are  not  essen- 
tial, and  hold  that  the  reason  of  the  statute,  in  providing  for 
protection  against  violent  assaults  on  vessels  in  tidal  waters,  is  no 
greater  but  identical  with  the  reason  for  providing  against  similar 
assaults  on  vessels  in  navigable  waters  that  are  neither  tidal  nor 
saline.  The  statute  was  intended  to  extend  protection  .to  persons 
on  vessels  belonging  to  citizens  of  the  United  States,  not  only  upon 
the  high  seas,  but  in-all  navigable  waters  of  every  kind  out  of  the 
jurisdiction  of  any  particular  State,  whether  moved  by  the  tides  or 
free  from  their  influence. 

The  character  of  these  lakes  as  seas  was  recognized  by  this  court 
in  the  recent  Chicago  Lake  Front  Case,  where  we  said:  "These 
lakes  possess  all  the  general  characteristics  of  open  seas,  except  in 


510  THE   LEGISLATIVE   DEPARTMENT.  [CHAP,  IV; 

the  freshness  of  their  waters,  and  in  the  absence  of  the  ebb  and  flow 
of  the  tide,"  "In  other  respects,"  we  added,  "they  are  inland  seas, 
and  there  is  no  reason  or  principle  for  the  assertion  of  dominion  and 
sovereignty  over  and  ownership  by  the  State  of  lands  covered  by 
tide  waters  that  is  not  equally  applicable  to  its  ownership  of  and 
dominion  and  sovereignty  over  lands  covered  by  the  fresh  waters 
of  these  lakes."  Illinois  Central  K.  K.  Co.  v.  Illinois,  146  U.  S. 
387,  435. 

It  is  to  be. observed  also  that  the  term  "high"  in  one  of  its  sig- 
nifications is  used  to  denote  that  which  is  common,  open,  and  public. 
Thus  every  road  or  way  or  navigable  river  which  is  used  freely  by 
the  public  is  a  "high"  way.  So  a  large  body  of  navigable  water 
other  than  a  river,  which  is  of  an  extent  beyond  the  measurement 
of  one's  unaided  vision,  and  is  open  and  unconfined,  and  not  under 
the  exclusive  control  of  any  one  nation  or  people,  but  is  the  free 
highway  of  adjoining  nations  or  people,  must  fall  under  the  defini- 
tion of  "high  seas"  within  the  meaning  of  the  statute.  We  may 
as  appropriately  designate  the  open,  unenclosed  waters  of  the  lakes 
as  the  high  seas  of  the  lakes,  as  to  designate  similar  waters  of  the 
ocean  as  the  high  seas  of  the  ocean,  or  similar  waters  of  the  IMedi- 
terranean  as  the  high  seas  of  the  Mediterranean, 

The  language  of  section  5346,  immediately  following  the  term 
"high  seas,"  declaring  the  penalty  for  violent  assaults  when  com- 
mitted on  board  of  a  vessel  in  any  arm  of  the  sea  or  in  any  river, 
haven,  creek,  basin,  or  bay,  within  the  admiralty  jurisdiction  of 
the  United  States,  and  out  of  the  jurisdiction  of  any  particular 
State,  equally  as  when  committed  on  board  of  a  vessel  on  the  high 
seas,  lends  force  to  the  construction  given  to  that  term.  The  lan- 
guage used  must  be  read  in  conjunction  with  that  term,  and  as  refer- 
ring to  navigable  w^aters  out  of  tJie  jurisdiction  of  any  particular 
State,  but  connecting  with  the  high  seas  mentioned.  The  Detroit 
River,  upon  which  was  the  steamer  Alaska  at  the  time  the  assault 
was  committed,  connects  the  waters  of  Lake  Huron  (with  which,  as 
stated  above,  the  waters  of  Lake  Superior  and  Lake  Michigan  join) 
with  the  waters  of  Lake  Erie,  and  separates  the  Dominion  of  Canada 
from  the  United  States,  constituting  the  boundary  between  them, 
the  dividing  line  running  nearly  midway  between  its  banks,  as 
established  by  commissioners,  pursuant  to  the  treaty  between  the 
two  countries,  8  Stat.  274,  276.  The  river  is  about  22  miles  in 
length  and- from  one  to  three  miles  in  width,  and  is  navigable  at  all 
seasons  of  the  year  by  vessels  of  the  largest  size.  The  number  of 
vessels  passing  through  it  each  year  is  immense.  Between  the  years 
1880  and  1892,  inclusive,  they  averaged  from  thirty-one  to  forty 
thousand  a  year,  having  a  tonnage  varying  from  sixteen  to  twenty- 
four  millions.  In  traversing  the  river  they  are  constantly  passing 
from  the  territorial  jurisdiction  of  the  one  nation  to  that  of  the 
other.     All  of  them,  however,  so  far  as  transactions  had  on  board 


SECT.  Xr.]  UNITED    STATES    V.   RODGERS.  611 

are  concerned,  are  deemed  to  be  within  the  country  of  their  owners- 
Constructively  they  constitute  a  part  of  the  territory  of  the  nation 
to  which  the  owners  belong.  Whilst  they  are  on  the  navigable 
waters  of  the  river  they  are  within  the  admiralty  jurisdiction  of 
that  country.  This  jurisdiction  is  not  changed  by  the  fact  that  each 
of  the  neighboring  nations  may  in  some  oases  assert  its  own  author- 
ity over  persons  on  such  vessels  in  relation  to  acts  committed  by 
them  within  its  territorial  limits.  In  what  cases  jurisdiction  by 
each  country  will  be  thus  asserted  and  to  what  extent,  it  is  not 
necessary  to  inquire,  for  no  question  on  that  point  is  presented  for 
our  consideration.  The  general  rule  is  that  the  country  to  which 
the  vessel  belongs  will  exercise  jurisdiction  over  all  matters  affect- 
ing the  vessel  or  those  belonging  to  her,  without  interference  of  the 
local  government,  unless  they  involve  its  peace,  dignity,  or  tran- 
quillity, in  which  case  it  may  assert  its  authority.  Wildenhus's 
Case,  120  U.  S.  1,  12;  Halleck  on  International  Law,  c.  vii.  §  26, 
p.  172.  The  admiralty  jurisdiction  of  the  country  of  the  owners  of 
the  steamer  upon  which  the  offence  charged  was  committed  is  not 
denied.  They  being  citizens  of  the  United  States,  and  the  steamer 
being  upon  navigable  waters,  it  is  deemed  to  be  within  the  admiralty 
jurisdiction  of  the  United  States.  It  was,  therefore,  perfectly  com- 
petent for  Congress  to  enact  that  parties  on  board  committing  an 
assault  with  a  dangerous  weapon  should  be  punished  when  brought 
within  the  jurisdiction  of  the  District  Court  of  the  United  States. 
But  it  will  hardly  be  claimed  that  Congress  by  the  legislation  in 
question  intended  that  violent  assaults  committed  upon  persons  on 
vessels  owned  by  citizens  of  the  United  States  in  the  Detroit  River, 
without  the  jurisdiction  of  any  particular  State,  should  be  punished, 
and  that  similar  offences  upon  persons  on  vessels  of  like  owners 
upon  the  adjoining  lakes  should  be  unprovided  for.  If  the  law  can 
be  deemed  applicable  to  offences  committed  on  vessels  in  any  navi- 
gable river,  haven,  creek,  basin,  or  bay,  connecting  with  the  lakes, 
out  of  the  jurisdiction  of  any  particular  State,  it  would  not  be  rea- 
sonable to  suppose  that  Congress  intended  that  no  remedy  should  be 
afforded  for  similar  offences  committed  on  vessels  upon  the  lakes, 
to  which  the  vessels  on  the  river,  in  almost  all  instances,  are 
directed,  and  upon  whose  waters  they  are  to  be  chiefly  engaged. 
The  more  reasonable  inference  is  that  Congress  intended  to  include 
the  open,  unenclosed  waters  of  the  lakes  under  the  designation  of 
high  seas.  The  term,  in  the  eye  of  reason,  is  applicable  to  the 
open,  unenclosed  portion  of  all  large  bodies  of  navigable  waters, 
whose  extent  cannot  be  measured  by  one's  vision,  and  the  naviga- 
tion of  which  is  free  to  all  nations  and  people  on  their  borders,  by 
whatever  names  those  bodies  may  be  locally  designated.  In  some 
countries  small  lakes  are  called  seas,  as  in  the  case  of  the  Sea  of 
Galilee,  in  Palestine.  In  other  countries  large  bodies  of  water, 
greater  than  many  bodies  denominated  seas,  are  called  lakes,  gulfs, 


512  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

or  basins.  The  nomenclature,  however,  does  not  change  the  real 
character  of  either,  nor  should  it  affect  our  construction  of  terms 
properly  applicable  to  the  waters  of  either.  By  giving  to  the  term 
"high  seas"  the  construction  indicated,  there  is  consistency  and 
sense  in  the  whole  statute,  but  there  is  neither  if  it  be  disregarded. 
If  the  teriu  applies  to  the  open,  unenclosed  waters  of  the  lakes,  the 
application  of  the  legislation  to  the  case  under  indictment  cannot  be 
questioned,  for  the  Detroit  Kiver  is  a  water  connecting  such  high 
seas,  and  all  that  portion  which  is  north  of  the  boundary  line 
between  the  United  States  and  Canada  is  without  the  jurisdiction 
of  any  State  of  the  Union.  Bat  if  they  be  considered  as  not  tlius 
applying,  it  is  difficult  to  give  any  force  to  the  rest  of  the  statute 
without  supposing  that  Congress  intended  to  provide  against  vio- 
lence on  board  of  vessels  in  navigable  rivers,  havens,  creeks,  basins, 
and  bays,  without  the  jurisdiction  of  any  particular  State,  and 
intentionally  omitted  the  much  more  important  provision  for  like 
violence  and  disturbances  on  vessels  upon  the  Great  Lakes.  All 
vessels  in  any  navigable  river,  haven,  creek,  basin,  or  bay  of  the 
lakes,  whether  within  or  without  the  jurisdiction  of  any  particular 
State,  would  some  time  find  their  way  upon  the  waters  of  the  lakes; 
and  it  is  not  a  reasonable  inference  that  Congress  intended  that  the 
law  should  apply  to  offences  only  on  a  limited  portion  of  the  route 
over  which  the  vessels  were  expected  to  pass,  and  that  no  provision 
should  be  made  for  such  offences  over  a  much  greater  distance  on 
the  lakes. 

Congress  in  thus  designating  the  open,  unenclosed  portion  of 
large  bodies  of  water,  extending  beyond  one's  vision,  naturally 
used  the  same  term  to  indicate  it  as  was  used  with  reference  to 
similar  portions  of  the  ocean  or  of  bodies  which  had  been  designated 
as  seas.  When  Congress,  in  1790,  first  used  that  term  the  existence 
of  the  Great  Lakes  was  known ;  they  had  been  visited  by  great 
numbers  of  persons  in  trading  with  the  neighboring  Indians,  and 
their  immense  extent  and  character  were  generally  understood. 
Much  more  accurate  was  this  knowledge  when  the  act  of  March  3, 
1825,  was  passed,  4  Stat.  115,  c.  65,  and  when  the  provisions  of 
section  5346  were  re-enacted  in  the  Revised  Statutes  in  1874.  In  all 
these  cases,  when  Congress  provided  for  the  punishment  of  violence 
on  board  of  vessels,  it  must  have  intended  that  the  provision  should 
extend  to  vessels  on  those  waters  the  same  as  to  vessels  on  seas, 
technically  so  called.  There  were  no  bodies  of  water  in  the  United 
States  to  any  portion  of  Avhich  the  term  "high  seas  "  was  applicable 
if  not  to  the  open,  unenclosed  waters  of  the  Great  Lakes.  It  does 
not  seem  reasonable  to  suppose  that  Congress  intended  to  confine 
its  legislation  to  the  high  seas  of  the  ocean,  and  to  its  navigable 
rivers,  havens,  creeks,  basins,  and  bays,  without  the  jurisdiction  of 
any  State,  and  to  make  no  provision  for  offences  on  those  vast 
bodies  of  inland  waters  of  the  United  States.     There  are  vessels  of 


SECT.  XI.]  UNITED   STATES   V.   RODGERS.  513 

every  description  on  those  inland  seas  now  carrying  on  a  commerce 
greater  than  the  commerce  on  any  other  inland  seas  of  tlie  world. 
And  we  cannot  believe  that  the  Congress  of  the  United  States  pur- 
posely left  for  a  century  those  who  navigated  and  those  who  were 
conveyed  in  vessels  upon  those  seas  without  any  protection. 

The  statute  under  consideration  provides  that  every  person  who, 
upon  the  high  seas  or  in  any  river  connecting  with  them,  as  we  con- 
strue its  language,  within  the  admiralty  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  State,  commits, 
on  board  of  any  vessel  belonging  in  whole  or  in  part  to  the  United 
States,  or  any  citizen  thereof,  an  assault  on  another  with  a  dan- 
gerous weapon  or  with  intent  to  perpetrate  a  felony,  shall  be  pun- 
ished, etc.  The  Detroit  River,  from  shore  to  shore,  is  within  the 
admiralty  jurisdiction  of  the  United  States,  and  connects  with  the 
open  waters  of  the  lakes  —  high  seas,  as  we  hold  them  to  be,  within 
the  meaning  of  the  statute.  From  the  boundary  line,  near  its 
centre,  to  the  Canadian  shore  it  is  out  of  the  jurisdiction  of  the 
State  of  Michigan.  The  case  presented  is  therefore  directly  within 
its  provisions.  The  act  of  Congress  of  September  4,  1890,  26  Stat. 
424,  c.  874  (1  Sup.  to  the  Rev,  Stat.  chap.  874,  p.  799),  providing 
for  the  punishment  of  crimes  subsequently  committed  on  the  Great 
Lakes,  does  not,  of  course,  affect  the  construction  of  the  law  pre- 
viously existing. 

We  are  not  unmindful  of  the  fact  that  it  was  held  by  the 
Supreme  Court  of  Michigan  in  People  v.  Tyler,  7  Mich.  161,  that 
the  criminal  jurisdiction  of  the  Federal  courts  did  not  extend  to 
offences  committed  upon  vessels  on  the  lakes.  The  judges  who 
rendered  that  decision  were  able  and  distinguished;  but  that  fact, 
whilst  it  justly  calls  for  a  careful  consideration  of  their  reasoning, 
does  not  render  their  conclusion  binding  or  authoritative  upon  this 
court.  Their  opinions  show  that  they  did  not  accept  the  doctrine 
extending  the  admiralty  jurisdiction  to  cases  on  the  lakes  and  navi- 
gable rivers,  which  is  now  generally,  we  might  say  almost  univer- 
sally, received  as  sound  by  the  judicial  tribunals  of  the  country.  It 
is  true,  as  there  stated,  that,  as  a  general  principle,  the  criminal 
laws  of  a  nation  do  not  operate  beyond  its  territorial  limits,  and 
that  to  give  any  government,  or  its  judicial  tribunals,  the  right  to 
punish  any  act  or  transaction  as  a  crime,  it  must  have  occurred 
within  those  limits.  We  accept  this  doctrine  as  a  general  rule,  but 
there  are  exceptions  to  it  as  fully  recognized  as  the  doctrine  itself. 
One  of  those  exceptions  is  that  offences  committed  upon  vessels 
belonging  to  citizens  of  the  United  States,  within  their  admiralty 
jurisdiction  (that  is,  within  navigable  waters),  though  out  of  the 
territorial  limits  of  the  United  States,  may  be  judicially  considered 
when  the  vessel  and  parties  are  brought  within  their  territorial 
j  irisdiction.  As  we  have  before  stated,  a  vessel  is  deemed  part  of 
the  territory  of  the  country  to  which  she  belongs.     Upon  that  sub- 

33 


514  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV, 

ject  we  quote  the  language  of  jMr.  Webster,  while  Secretary  of 
State,  in  his  letter  to  Lord  Ashburton  of  August,  1842,  Speaking 
for  the  government  of  the  United  States,  he  stated  with  great  clear- 
ness and  force  the  doctrine  which  is  now  recognized  by  all  countries. 
He  said :  "  It  is  natural  to  consider  the  vessels  of  a  nation  as  parts 
of  its  territory,  though  at  sea,  as  the  State  retains  its  jurisdiction 
over  them;  and  according  to  the  commonly  received  custom,  this 
jurisdiction  is  preserved  over  the  vessels  even  in  parts  of  the  sea 
subject  to  a  foreign  dominion.  This  is  the  doctrine  of  the  law  of 
nations,  clearly  laid  down  by  writers  of  received  authority,  and 
entirely  conformable,  as  it  is  supposed,  with  the  practice  of 
modern  nations.  If  a  murder  be  committed  on  board  of  an  Ameri- 
can vessel  by  one  of  the  crew  upon  another  or  upon  a  passenger,  or 
by  a  passenger  on  one  of  the  crew  or  another  passenger,  Avhile  such 
vessel  is  lying  in  a  port  within  the  jurisdiction  of  a  foreign  State  or 
sovereignty,  the  offence  is  cognizable  and  punishable  by  the  proper 
court  of  the  United  States  in  the  same  manner  as  if  such  offence 
had  been  committed  on  board  the  vessel  on  the  high  seas.  The  law 
of  England  is  supposed  to  be  the  same.  It  is  true  that  the  jurisdic- 
tion of  a  nation  over  a  vessel  belonging  to  it,  while  lying  in  the 
port  of  another,  is  not  necessarily  wholly  exclusive.  We  do  not  so 
consider  or  so  assert  it.  For  any  unlawful  acts  done  by  her  while 
thus  lying  in  port,  and  for  all  contracts  entered  into  while  there, 
by  her  master  or  owners,  she  and  they  must,  doubtless,  be  answer- 
able to  the  laws  of  the  place.  Nor,  if  her  master  or  crew,  while 
on  board  in  such  port,  break  the  peace  of  the  community  by  the 
commission  of  crimes,  can  exemption  be  claimed  for  them.  But, 
nevertheless,  the  law  of  nations,  as  I  have  stated  it,  and  the  statutes 
of  governments  founded  on  that  law,  as  I  have  referred  to  them, 
show  that  enlightened  nations,  in  modern  times,  do  clearly  hold 
that  the  jurisdiction  and  laws  of  a  nation  accompany  her  ships  not 
only  over  the  high  sea,  but  into  ports  and  harbors,  or  wheresoever 
else  they  may  be  water-borne,  for  the  general  purpose  of  governing 
and  regulating  the  rights,  duties,  and  obligations  of  those  on  board 
thereof,  and  that,  to  the  extent  of  the  exercise  of  this  jurisdiction, 
they  are  considered  as  parts  of  the  territory  of  the  nation  herself." 
6  Webster's  Works,  306,  307. 

We  do  not  accept  the  doctrine  that,  because  by  the  treaty  between 
the  United  States  and  Great  Britain  the  boundary  line  between  the 
two  countries  is  run  through  the  centre  of  the  lakes,  their  character 
as  seas  is  changed,  or  that  the  jurisdiction  of  the  United  States  to 
regulate  vessels  belonging  to  their  citizens  navigating  those  waters 
and  to  punish  offences  committed  upon  such  vessels,  is  in  any 
respect  impaired.  Whatever  effect  may  be  given  to  the  boundary 
line  between  the  two  countries,  the  jurisdiction  of  the  United  States 
over  the  vessels  of  their  citizens  navigating  those  waters  and  the 
persons  on  board  remains  unaffected.     The  limitation  to  the  juris- 


I 


SECT.  XII.]  THE   PRIZE    CASES.  515 

diction  by  the  qualification  that  the  offences  punishable  are  com- 
mitted on  vessels  in  any  arm  of  the  sea,  or  in  any  river,  haven, 
creek,  basin,  or  bay  "  without  the  jurisdiction  of  any  particular 
State,"  which  means  without  the  jurisdiction  of  any  State  of  the 
Union,  does  not  apply  to  vessels  on  the  "  high  seas  "  of  the  lakes, 
but  only  to  vessels  on  the  waters  designated  as  connecting  with 
them.  So  far  as  vessels  on  those  seas  are  concerned,  there  is  no 
limitation  named  to  the  authority  of  the  United  States.  It  is  true 
that  lakes,  properly  so  called,  that  is,  bodies  of  water  whose 
dimensions  are  capable  of  measurement  by  the  unaided  vision, 
within  the  limits  of  a  State,  are  part  of  its  territory  and  subject  to 
its  jurisdiction,  but  bodies  of  water  of  an  extent  which  cannot  be 
measured  by  the  unaided  vision,  and  which  are  navigable  at  all 
times  in  all  directions,  and  border  on  different  nations  or  States  or 
people,  and  find  their  outlet  in  the  ocean  as  in  the  present  case,  are 
seas  in  fact,  however  they  may  be  designated.  And  seas  in  fact  do 
not  cease  to  be  such,  and  become  lakes,  because  by  local  custom 
they  may  be  so  called. 

In  our  judgment  the  District  Court  of  the  Eastern  District  of 
Michigan  had  jurisdiction  to  try  the  defendant  upon  the  indictment 
found,  and  it  having  been  transferred  to  the  Circuit  Court,  that 
court  had  jurisdiction  to  proceed  with  the  trial,  and  the  demurrer  to 
its  jurisdiction  should  have  been  overruled.^ 


Section  XII.  —  War. 


THE   PRIZE   CASES. 
2  Black,  635.     1862. 

[The  cases  which  were  considered  together  under  this  title  in- 
volved the  lawfulness  of  seizures  and  condemnations  as  prizes  of 
vessels  violating  the  blockade  of  Southern  ports  under  proclamation 
of  the  President  of  the  United  States  in  1861.] 

Mr.  Justice  Gkier  delivered  the  opinion  of  the  court. 

By  the  Constitution,  Congress  alone  has  the  power  to  declare  a 
national  or  foreign  war.  It  cannot  declare  war  against  a  State,  or 
any  number  of  States,  by  virtue  of  any  clause  in  the  Constitution. 
The  Constitution  confers  on  the  President  the  whole  executive  power. 

1  Mr.  Jcstice  Gray  and  Mr.  Justice  Brown  delivered  dissenting  opinions. 


516  THE   LEGISLATIVE   DEPARTMExNT.  [CHAP.  IV. 

He  is  bound  to  take  care  that  the  laws  be  faithfully  executed.  He  is 
Commander-in-chief  of  the  Army  and  Navy  of  the  United  States,  and 
of  the  militia  of  the  several  States  when  called  into  the  actual  ser- 
vice of  the  United  States.  He  has  no  power  to  initiate  or  declare  a 
war  either  against  a  foreign  nation  or  a  domestic  State.  But  by  the 
acts  of  Congress  of  February  28th,  1795,  and  3d  of  March,  1807,  he 
is  authorized  to  call  out  tlie  militia  and  use  the  military  and  naval 
forces  of  the  United  States  in  case  of  invasion  by  foreign  nations, 
and  to  suppress  insurrection  against  the  government  of  a  State  or  of 
the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is 
not  only  authorized  but  bound  to  resist  force  by  force.  He  does  not 
initiate  the  war,  but  is  bound  to  accept  the  challenge  without  waiting 
for  any  special  legislative  authority.  And  whether  the  hostile  party 
be  a  foreign  invader,  or  States  organized  in  rebellion,  it  is  none  the 
less  a  war,  although  the  declaration  of  it  be  "  unilateral^  Lord 
Stowell  (1  Dodson,  247)  observes  :  "  It  is  not  the  less  a  war  on  that 
account,  for  war  may  exist  without  a  declaration  on  either  side.  It  is 
so  laid  down  by  the  best  writers  on  the  law  of  nations.  A  dec- 
laration of  war  by  one  country  only,  is  not  a  mere  challenge  to  be 
accepted  or  refused  at  pleasure  by  the  other." 

The  battles  of  Palo  Alto  and  Resaca  de  la  Palma  had  been  fought 
before  the  passage  of  the  act  of  Congress  of  May  13th,  1846,  which 
recognized  "  a  state  of  war  as  existbifj  by  the  act  of  the  Repuhl'ic  of 
Mexico."  This  act  not  only  provided  for  the  future  prosecution  of 
the  war,  but  was  itself  a  vindication  and  ratification  of  the  act  of  the 
President  in  accepting  the  challenge  without  a  previous  formal  dec- 
laration of  war  by  Congress. 

This  greatest  of  civil  wars  w^as  not  gradually  developed  by  popular 
commotion,  tumultuous  assemblies,  or  local  unorganized  insurrections. 
However  long  may  have  been  its  previous  conception,  it  nevertheless 
sprung  forth  suddenly  from  the  parent  brain,  a  jMinerva  in  the  full 
panoply  of  war.  The  President  was  bound  to  meet  it  in  the  shape  it 
presented  itself,  without  waiting  for  Congress  to  baptize  it  with  a 
name  ;  and  no  name  given  to  it  by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  "  insurrection  "  by  one  side,  and 
the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not  necessary 
that  the  independence  of  the  revolted  province  or  State  be  acknowl- 
edged in  order  to  constitute  it  a  party  belligerent  in  a  war  according 
to  the  law  of  nations.  Foreign  nations  acknowledge  it  as  war  by  a 
declaration  of  neutrality.  The  condition  of  neutrality  cannot  exist 
unless  there  be  two  belligerent  parties.  In  the  case  of  the  Santissima 
Trinidad,  7  Wheat.  337,  this  Court  say :  "  The  government  of  the 
United  States  has  recognized  the  existence  of  a  civil  war  between 
Spain  and  her  colonies,  and  has  avowed  her  determination  to  remain 
neutral  between  the  parties.     Each  party  is  therefore  deemed  by  us 


SECT.  XII.]  THE   PRIZE    CASES.  517 

a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  rights 
of  war."     See  also  3  Binn.  252. 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the  organ- 
ization of  a  government  by  the  seceding  States,  assuming  to  act  as 
belligerents,  could  become  known  in  Europe,  to  wit,  on  the  13th  of 
May,  1861,  the  Queen  of  England  issued  her  proclamation  of  neutral- 
ity, "  recognizing  hostilities  as  existing  between  the  government  of 
the  United  States  of  America  and  certain  States  styling  themselves 
the  Confederate  States  of  America."  This  was  immediately  followed 
by  similar  declarations  or  silent  acquiescence  by  other  nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a 
foreign  State  is  estopped  to  deny  the  existence  of  a  war  with  all  its 
consequences  as  regards  neutrals.  They  cannot  ask  a  Court  to  affect 
a  technical  ignorance  of  tlie  existence  of  a  war,  which  all  the  world 
acknowledges  to  be  the  greatest  civil  war  known  in  the  history  of 
the  human  race,  and  thus  cripple  the  arm  of  the  government  and 
paralyze  its  power  by  subtle  definitions  and  ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature ;  it  is  founded 
on  the  common  consent  as  well  as  the  common  sense  of  the  world. 
It  contains  no  such  anomalous  doctrine  as  that  which  this  court  are 
now  for  the  first  time  desired  to  pronounce,  to  wit:  That  insurgents 
who  have  risen  in  rebellion  against  their  sovereign,  expelled  her 
courts,  established  a  revolutionary  government,  organized  armies, 
and  commenced  hostilities,  are  not  enemies  because  they  are  traitors  ; 
and  a  war  levied  on  the  government  by  traitors,  in  order  to  dismem- 
ber and  destroy  it,  is  not  a  war  because  it  is  an  "  insurrection." 

Whether  the  President  in  fulfilling  his  duties,  as  Commander-in- 
chief,  in  suppressing  an  insurrection,  has  met  with  such  armed  hostile 
resistance,  and  a  civil  war  of  such  alarming  proportions  as  will  com- 
pel him  to  accord  to  them  the  character  of  belligerents,  is  a  question 
to  be  decided  by  him,  and  this  court  must  be  governed  by  the  de- 
cisions and  acts  of  the  political  department  of  the  government  to 
which  this  power  was  intrusted.  "  He  must  determine  what  degree 
of  force  the  crisis  demands."  The  proclamation  of  blockade  is  itself 
official  and  conclusive  evidence  to  the  court  that  a  state  of  war  ex- 
isted which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  legislature  of  1861,  which 
was  wholly  employed  in  enacting  laws  to  enable  the  government  to 
prosecute  the  war  with  vigor  and  efficiency.  And  finally,  in  1861, 
we  find  Congress  "  e.T  majore  caufela "  a,nd  in  anticipation  of  such 
astute  objections,  passing  an  act  "  ai)proving,  legalizing,  and  making 
valid  all  the  acts,  proclamations,  and  orders  of  the  President,  &c.,  as 


518  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

if  they  had  been  issued  and  done  under  the  previous  express  authoritij 

and  direction  of  the  Congress  of  the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the  cir 
cunistances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority 
or  sanction  of  Congress,  that  on  the  well-known  principle  of  law, 
"  omiiis  ratihabitio  retrotraliitur  et  mandato  equipar'atur,''^  this  ratifi- 
cation has  operated  to  perfectly  cure  the  defect.  In  the  case  of 
Brown  v.  United  States,  8  Cr.  131,  132,  133,  INIr.  Justice  Story 
treats  of  this  subject,  and  cites  numerous  authorities  to  which  we 
may  refer  to  prove  this  position,  and  concludes,  "  I  am  perfectly 
satisfied  that  no  subject  can  commence  hostilities  or  capture  property 
of  an  enemy,  when  the  sovereign  has  prohibited  it.  But  suppose  he 
did,  I  would  ask  if  the  sovereign  may  not  ratify  his  proceedings,  and 
thus  by  a  retroactive  operation  give  validity  to  them  ?  " 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the 
court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point  is 
correct  and  fully  substantiated  by  authority. 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post  facto, 
and  therefore  unconstitutional  and  void,  might  possibly  have  some 
weight  on  the  trial  of  an  indictment  in  a  criminal  court.  But  pre- 
cedents from  that  source  cannot  be  received  as  authoritative  in  a 
tribunal  administering  public  and  international  law.^ 


MAETIN  V.   MOTT. 
12  Wheaton,  19;  7  Curtis,  10.     1827. 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  judgment  of  the  court  for  the  trial  of 
impeachments  and  the  correction  of  errors  of  the  State  of  New  York, 
being  the  highest  court  of  that  State,  and  is  brought  here  in  virtue  of 
the  2oth  section  of  the  Judiciary  Act  of  1789,  c.  20  (1  Stats,  at 
Large,  85).  The  original  action  was  a  replevin  for  certain  goods 
and  chattels,  to  which  the  original  defendant  put  in  an  avowry,  and 
to  that  avowry  there  was  a  demurrer,  assigning  nineteen  distinct 
and  special  causes  of  demurrer.  Upon  a  joinder  in  demurrer,  the 
Supreme  Court  of  the  State  gave  judgment  against  the  avowant ; 
and  that  judgment  was  affirmed  by  the  high  court  to  which  the 
present  writ  of  error  is  addressed. 

The  avowry,  in  substance,  asserts  a  justification  of  the  taking  of 

1  Mr.  Justice  Nelson  delivered  a  dissenting  opinion,  in  which  Mr.  Chief  Jcstice 
Taxey,  Mr.  Justice  Catron,  and  Mr.  Justice  Clifford  concurred. 


SECT.  Xir]  MARTIN    V.    MOTT.  519 

the  goods  and  chattels  to  satisfy  a  fine  and  forfeiture  imposed  upon 
the  original  plaintiff  by  a  court-martial,  for  a  failure  to  enter  the 
service  of  the  United  States  as  a  militia-man,  when  thereto  required 
by  the  President  of  the  United  States,  in  pursuance  of  the  act  of  the 
28th  of  February,  1795.  It  is  argued  that  this  avowry  is  defective, 
both  in  substance  and  form ;  and  it  will  be  our  business  to  discuss 
the  most  material  of  these  objections ;  and  as  to  others,  of  which  no 
particular  notice  is  taken,  it  is  to  be  understood  that  the  court  are  of 
opinion  that  they  are  either  unfounded  in  fact  or  iu  law,  and  do  not 
require  any  separate  examination. 

For  the  more  clear  and  exact  consideration  of  the  subject,  it  may 
be  necessary  to  refer  to  the  Constitution  of  the  United  States,  and 
some  of  the  provisions  of  the  act  of  1795.  The  Constitution  declares 
that  Congress  shall  have  power  "  to  provide  for  calling  forth  the 
militia,  to  execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions;"  and  also  "to  provide  for  organizing,  arming, 
and  disciplining  the  militia,  and  for  governing  such  part  of  them 
as  may  be  employed  in  the  service  of  the  United  States."  In 
pursuance  of  this  authority,  the  act  of  1795  has  provided,  "that 
whenever  the  United  States  shall  be  invaded,  or  be  in  imminent 
danger  of  invasion  from  any  foreign  nation  or  Indian  tribe,  it  shall 
be  lawful  for  the  President  of  the  United  States  to  call  forth  such 
number  of  the  militia  of  the  State  or  States  most  convenient  to  the 
place  of  danger,  or  scene  of  action,  as  he  may  judge  necessar}'  to 
repel  such  invasion,  and  to  issue  his  order  for  that  purpose  to  such 
officer  or  officers  of  the  militia  as  he  shall  think  proper."  And  like 
provisions  are  made  for  the  other  cases  stated  in  the  Constitution. 
It  has  not  been  denied  here  that  the  act  of  1795  is  within  the 
constitutional  authority  of  Congress,  or  that  Congress  may  not 
lawfully  provide  for  cases  of  imminent  danger  of  invasion,  as  well 
as  for  cases  where  an  invasion  has  actually  taken  place.  In  our 
opinion  there  is  no  ground  for  a  doubt  on  this  point,  even  if  it  had 
been  relied  on,  for  the  power  to  provide  for  repelling  invasions  in- 
cludes the  power  to  provide  against  the  attempt  and  danger  of  inva- 
sion, as  the  necessary  and  proper  means  to  effectuate  the  object. 
One  of  the  best  means  to  repel  invasion  is  to  provide  the  requisite 
force  for  action  before  the  invader  himself  has   reached  the  soil. 

The  power  thus  confided  by  Congress  to  the  President  is,  doubt- 
less, of  a  very  high  and  delicate  nature.  A  free  people  are  naturally 
jealous  of  the  exercise  of  military  power;  and  the  power  to  call  the 
militia  into  actual  service  is  certainly  felt  to  be  one  of  no  ordinary 
magnitude.  But  it  is  not  a  power  which  can  be  executed  without 
a  correspondent  responsibility.  It  is,  in  its  terms,  a  limited  power 
confined  to  cases  of  actual  invasion,  or  of  imminent  danger  of  inva- 
sion. If  it  be  a  limited  power,  the  question  arises,  by  whom  is  the 
exigency  to  be  judged  of  and  decided  ?  Is  the  President  tlie  sole 
and  exclusive  judge  whether  the  exigency  has  arisen,  or  is  it  to  be 


520  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

considered  as  an  open  question,  upon  wliicli  every  officer  to  whom 
the  orders  of  the  President  are  addressed  may  decide  for  himself, 
and  equally  open  to  be  contested  by  every  militia-man  who  shall 
refuse  to  obey  the  orders  of  the  President  ?  We  are  all  of  opinion 
that  the  authority  to  decide  whether  the  exigency  has  arisen  belongs 
exclusively  to  the  President,  and  that  his  decision  is  conclusive  upon 
all  other  persons.  We  think  that  this  construction  necessarily  results 
from  the  nature  of  the  power  itself,  and  from  the  manifest  object 
contemplated  by  the  act  of  Congress.  The  power  itself  is  to  be 
exercised  upon  sudden  emergencies,  upon  great  occasions  of  state, 
and  under  circumstances  which  may  be  vital  to  the  existence  of 
the  Union.  A  prompt  and  unhesitating  obedience  to  orders  is 
indispensable  to  the  complete  attainment  of  the  object.  The  service 
is  a  military  service,  and  the  command  of  a  military  nature  ;  and  in 
such  cases  every  delay,  and  every  obstacle  to  an  efficient  and  imme- 
diate compliance,  necessarily  tend  to  jeopard  the  public  interests. 
While  subordinate  officers  or  soldiers  are  pausing  to  consider 
whether  they  ought  to  obey,  or  are  scrupulously  weighing  the 
evidence  of  the  facts  upon  which  the  Commander-in-chief  exercises 
the  right  to  demand  their  services,  the  hostile  enterprise  may  be 
accomplished  without  the  means  of  resistance.  If  "  the  power  of 
regulating  the  militia,  and  of  commanding  its  services  in  times 
of  insurrection  and  invasion,  are  (as  it  has  been  emphatically  said 
they  are)  natural  incidents  to  the  duties  of  superintending  the 
common  defence,  and  of  watching  over  the  internal  peace  of  the 
confederacy"  (The  Federalist,  No.  29),  these  powers  must  be  so  con- 
strued as  to  the  modes  of  their  exercise  as  not  to  defeat  the  great 
end  in  view.  If  a  superior  officer  has  a  right  to  contest  the  orders 
of  the  President  upon  his  own  doubts  as  to  the  exigency  having 
arisen,  it  must  be  equally  the  right  of  every  inferior  officer  and 
soldier;  and  any  act  done  by  any  person  in  furtherance  of  such 
orders  would  subject  him  to  responsibility  in  a  civil  suit,  in  which 
his  defence  must  finally  rest  upon  his  ability  to  establish  the  facts 
by  competent  proofs.  Such  a  course  would  be  subversive  of  all 
discipline,  and  expose  the  best-disposed  officers  to  the  chances  of 
ruinous  litigation.  Besides,  in  many  instances  the  evidence  upon 
which  the  President  might  decide  that  there  is  imminent  danger  of 
invasion  might  be  of  a  nature  not  constituting  strict  technical  proof, 
or  the  disclosure  of  the  evidence  might  reveal  important  secrets  of 
state,  which  the  public  interest,  and  even  safety,  might  imperiously 
demand  to  be  kept  in  concealment. 

If  we  look  at  the  language  of  the  act  of  1795,  every  conclusion 
drawn  from  the  nature  of  the  power  itself  is  strongly  fortified. 
The  words  are,  "whenever  the  United  States  shall  be  invaded,  or 
be  in  imminent  danger  of  invasion,  &c.,  it  shall  be  lawful  for  the 
President,  &c.,  to  call  forth  such  number  of  the  militia,  «&c.,  as  he 
may  judge  necessary  to  repel  such  invasion."'     The  power  itself  is 


SECT.  XII.]  MARTIN   V.   MOTT.  521 

confided  to  the   Executive   of  the  Union,   to   him    who  is,  by  the 
Constitution,  "the  commander-in-chief   of   the   militia,  when   called 
into  the  actual  service  of  the  United  States,"  whose  duty  it  is  to 
"  take  care  that  the  laws  be  faithfully  executed,"  and  whose  respon- 
sibility for  an  honest  discharge  of  his  official  obligations  is  secured 
by  the  highest  sanctions.     He  is  necessarily  constituted  the  judge  of 
the  existence  of  the  exigency  in  the  first  instance,  and  is  bound  to 
act   according   to   his  belief  of  the  facts.     If   he  does   so  act,  and 
decides  to  call  forth  the  militia,  his  orders  for  this  purpose  are  in 
strict   conformity   with  the   provisions   of   the    law ;    and    it   would 
seem   to   follow,  as  a  necessary  consequence,  that   every  act   done 
by  a   subordinate   ofiicer,    in   obedience   to   such   orders,  is   equally 
justifiable.     The  law  contemplates  that,  under  such  circumstances, 
orders  shall  be  given  to  carry  the  power  into  effect;  and  it  cannot 
therefore  be  a  correct  inference  that  any  other  person  has  a  just 
right  to  disobey  them.     The  law  does  not  provide  for  any  appeal 
from  the  judgment  of  the  President,  or  for  any  right  in  subordinate 
officers  to  review  his  decision,  and  in  effect  defeat  it.     Whenever  a 
statute  gives  a  discretionary  power  to  any  person,  to  be  exercised  by 
him  upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  con- 
struction  that   the   statute   constitutes   him  the  sole  and  exclusive 
judge  of  the  existence  of  those  facts.     And  in  the  present  case  we 
are  all  of  opinion  that  such  is  the  true  construction  of  the  act  of 
1795.     It  is  no  answer  that  such  a  power  may  be  abused,  for  there 
is   no   power  which   is    not  susceptible  of   abuse.     The  remedy  for 
this,  as  well  as  for  all  other  official  misconduct,  if  it  should  occur, 
is  to  be  found  in  the  Constitution  itself.     In  a  free  government,  the 
danger  must  be  remote,  since  in  addition  to  the  high  qualities  which 
the  Executive  must  be  presumed  to   possess,  of   public  virtue,  and 
honest  devotion  to  the  public  interests,  the  frequency  of  elections, 
and   the  watchfulness   of   the   representatives   of  the   nation,  carry 
with   them   all   the  checks    which  can   be  useful  to   guard   against 
usurpation  or  wanton  tyranny. 

This  doctrine  has  not  been  seriously  contested  upon  the  present 
oc(!asion.  It  was  indeed  maintained  and  approved  by  the  Supremo 
Court  of  New  York,  in  the  case  of  Vanderheyden  v.  Young,  11  Johns. 
Rep .  150,  where  the  reasons  in  support  of  it  Avere  most  ably  ex- 
pounded by  Mr.  Justice  Spencer,  in  delivering  the  opinion  of  the 
court. 


522  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 


Section  XIII.  —  Ceded  Districts. 


METROPOLITAN   RAILKOAD   COMPANY  v.   DISTRICT  OF 

COLUMBIA. 

132  United  States,  1.     1889. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  by  the  District  of  Columbia  in 
November,  1880,  to  recover  from  the  Metropolitan  Railroad  Com- 
pany  the  sum  of  $161,622.52.  The  alleged  cause  of  action  was  work 
done  and  materials  furnished  by  the  plaintiff  in  paving  certain  streets 
and  avenues  in  the  city  of  Washington  at  various  times  in  the  years 
1871,  1872,  1873,  1874,  and  1875,  upon  and  in  consequence  of  the 
neglect  of  the  defendant  to  do  said  work  and  furnish  said  materials 
in  accordance  with  its  duty  as  prescribed  by  its  charter. 

The  defendant  was  chartered  by  an  act  of  Congress  dated  July  1, 
1864,  13  Stat.  326,  c.  190,  and  amended  March  3,  1865,  13  Stat.  536, 
c.  119.  By  these  acts  it  was  authorized  to  construct  and  operate 
lines  or  routes  of  double-track  railways  in  designated  streets  and 
avenues  in  Washington  and  Georgetown. 

The  first  section  of  the  charter  contains  the  following  proviso : 
"Provided,  that  the  use  and  maintenance  of  said  road  shall  be  sub- 
ject to  the  municipal  regulations  of  the  city  of  Washington  within 
its  corporate  limits."  Of  course  this  provision  reserves  police  con- 
trol over  the  road  and  its  operations  on  the  part  of  the  authorities  of 
the  city.  The  fourth  section  of  the  charter  declares,  "  that  the  said 
corporation  liereby  created  shall  be  bound  to  keep  said  tracks,  and 
for  the  space  of  two  feet  beyond  the  outer  rail  thereof,  and  also  the 
space  between  the  tracks,  at  all  times  well  paved  and  in  good  order, 
without  expense  to  the  United  States  or  to  the  city  of  Washington." 
The  fifth  section  declares  "  that  nothing  in  this  act  shall  prevent  the 
government  at  any  time,  at  their  option,  from  altering  the  grade  or 
otherwise  improving  all  avenues  and  streets  occupied  by  said  roads, 
or  the  city  of  Washington  from  so  altering  or  improving  such  streets 
and  avenues,  and  the  sewerage  thereof,  as  may  be  under  their  re- 
spective authority  and  control ;  and  in  such  event  it  shall  be  the  duty 
of  said  company  to  change  their  said  railroad  so  as  to  conform  to  such 
grade  and  pavement." 

It  is  on  these  provisions  that  the  claim  of  the  city  is  based. 

The  amended  declaration  sets  out  in  great  detail  the  grading  and 
paving  which  were  done  in  various  streets  and  avenues  along  and 


SECT.  XIII.]     METROPOLITAN  R.  R.  CO.  V.  DISTRICT  OF  COLUMBIA.      523 

adjoining  the  tracks  of  the  defendant,  and  which  it  is  averred  should 
have  been  done  by  the  defendant  under  the  provisions  of  its  charter; 
but  which  the  defendant  neglected  and  refused  to  do. 

The  defendant  hied  twelve  several  pleas  to  the  action,  the  eleventh 
and  twelfth  being  pleas  of  the  statute  of  limitations.  Issue  was 
taken  upon  all  the  pleas  except  these  two,  and  they  were  demurred 
to.  The  court  sustained  the  demurrer,  and  the  cause  was  tried  on 
the  other  issues,  and  a  verdict  found  for  the  plaiutiff.  4  Mackey, 
214. 

The  case  is  brought  here  by  writ  of  error,  which  brings  up  for  con- 
sideration a  bill  of  exceptions  taken  at  the  trial,  and  the  ruling  upon 
the  demurrer  to  the  pleas  of  the  statute  of  limitations.  It  is  con- 
ceded that  if  the  court  below  erred  in  sustaining  that  demurrer,  the 
judgment  must  be  reversed.  That  question  will,  therefore,  be  first 
considered. 

It  is  contended  by  the  plaintiff  that  it  (the  District  of  Columbia) 
is  not  amenable  to  the  statute  of  limitations,  for  three  reasons :  first, 
because  of  its  dignity  as  partaking  of  the  sovereign  power  of  govern- 
ment; secondly,  because  it  is  not  embraced  in  the  terms  of  tlie  stat- 
ute of  limitations  in  force  in  the  District ;  and,  thirdly,  because  if 
the  general  words  of  the  statute  are  sufficiently  broad  to  include  the 
District,  still,  municipal  corporations,  unless  specially  mentioned,  are 
not  subject  to  the  statute. 

1.  The  first  question,  therefore,  will  be,  whether  the  District  of 
Columbia  is,  or  is  not,  a  municipal  body  merely,  or  whether  it  has 
such  a  sovereign  character,  or  is  so  identified  with  or  representative 
of  the  sovereignty  of  the  United  States  as  to  be  entitled  to  the  pre- 
rogatives and  exemptions  of  sovereignty. 

In  order  to  a  better  understanding  of  the  subject  under  considera- 
tion, it  will  be  proper  to  take  a  brief  survey  of  the  government 
of  the  District  and  the  changes  it  has  undergone  since  its  first 
organization. 

Prior  to  1871,  the  local  government  of  the  District  of  Columbia,  on 
the  east  side  of  the  Potomac,  had  been  divided  between  the  corpora^ 
tions  of  Washington  and  Georgetown  and  the  Levy  Court  of  the 
county  of  Washington.  Georgetown  had  been  incorporated  by  the 
legislature  of  Maryland  as  early  as  1789  (Davis's  Laws,  Dist.  Col. 
478),  as  Alexandria  had  been  by  the  legislature  of  Virginia  as  early 
as  1748  and  1779  (Davis's  Laws,  533,  541) ;  and  those  towns  or  cities 
were  clearly  nothing  more  than  ordinary  municipal  corporations, 
with  the  usual  powers  of  such  corjjorations.  When  the  government 
of  the  United  States  took  possession  of  the  District  in  December, 
1800,  it  was  divided  by  Congress  into  two  counties,  that  of  Alexan- 
dria on  the  west  side  of  the  Potomac,  and  that  of  Washington  on  the 
east  side  ;  and  the  laws  of  Virginia  were  continued  over  the  former, 
and  the  laws  of  Maryland  over  the  latter ;  and  a  court,  called  the 
Circuit  Court  of  the  District  of  Columbia,  was  established  with  gen- 


524  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  lY. 

eral  jurisdiction,  civil  and  criminal,  to  hold  sessions  alternately  in 
each  county ;  but  the  corporate  rights  of  the  cities  of  Alexandria  and 
Georgetown,  and  of  all  other  corporate  bodies,  were  expressly  left 
nnirapaired,  except  as  related  to  judicial  powers.  See  Act  of  Feb. 
27,  1801,  2  Stat.  103,  c.  15.  A  supplementary  act,  passed  a  few  days 
later,  gave  to  the  Circuit  Court  certain  administrative  powers,  the 
same  as  those  vested  in  the  County  and  Levy  Courts  of  Virginia  and 
Maryland  respectively  ;  and  it  was  declared  that  the  magistrates  to 
be  appointed  should  be  a  board  of  commissioners  within  their  re- 
spective counties,  and  have  the  same  powers  and  perform  the  same 
duties  as  the  Levy  Courts  of  Maryland.  These  powers  related  to 
the  construction  and  repair  of  roads,  bridges,  ferries,  the  care  of  the 
poor,  &c.  Act  of  March  3,  1801,  2  Stat.  115,  c.  25.  On  ]\Iay  3,  1802, 
an  act  was  passed  to  incorporate  the  city  of  Washington.  2  Stat. 
195,  c.  53.  It  invested  the  mayor  and  common  council  (the  latter 
being  elected  by  the  white  male  inhabitants)  with  all  the  usual 
powers  of  municipal  bodies,  such  as  the  power  to  pass  by-laws  and 
ordinances ;  powers  of  administration,  regulation  and  taxation ; 
amongst  others  specially  named,  the  power  "  to  erect  and  repair 
bridges  ;  to  keep  in  repair  all  necessary  streets,  avenues,  drains,  and 
sewers,  and  to  pass  regulations  necessary  for  the  preservation  of  the 
same,  agreeably  to  the  plan  of  said  city."  Various  amendments,  from 
time  to  time,  were  made  to  this  charter,  and  additional  powers  were 
conferred.  A  general  revision  of  it  was  made  by  act  of  Congress 
passed  May  15,  1820.  3  Stat.  583,  c.  104.  A  further  revision  was 
made  and  additional  powers  were  given  by  the  act  of  May  17,  1848, 
9  Stat.  223,  c.  42,  but  nothing  to  change  the  essential  character  of  the 
corporation. 

The  powers  of  the  Levy  Court  extended  more  particularly  to  ths 
country,  outside  of  the  cities  ;  but  also  to  some  matters  in  the  cities 
common  to  the  whole  county.  It  was  reorganized,  and  its  powers 
and  duties  more  specifically  defined,  in  the  acts  of  July  1st,  1812, 
2  Stat.  771,  c.  117,  and  of  March  3d,  1863,  12  Stat.  799.  By  tlie  last 
act,  the  members  of  the  court  were  to  be  nine  in  number,  and  to  be 
appointed  by  the  President  and  Senate. 

In  the  first  year  of  the  war,  August  6th,  1861,  12  Stat.  320,  c.  62, 
an  act  was  passed  "  to  create  a  Metropolitan  Police  District  of  the 
District  of  Columbia,  and  to  establish  a  police  therefor."  The  police 
had  previously  been  appointed  and  regulated  by  the  mayor  and  com- 
mon council  of  "Washington  ;  but  it  was  now  deemed  important  that 
it  should  be  under  the  control  of  the  government.  The  act  provided 
for  the  appointment  of  five  commissioners  by  the  President  and  Sen- 
ate, who,  together  with  the  mayors  of  Washington  and  Georgetown, 
were  to  form  the  board  of  police  for  the  District ;  and  this  board  was 
invested  with  extraordinary  powers  of  surveillance  and  guardianship 
of  the  peace. 

This  general  review  of  the  form  of  government  which  prevailed  in 


SECT.  XIII.]       METROPOLITAN  R.  R.  CO.  V.  DISTRICT  OF  COLUMBIA.      525 

the  District  of  Columbia  and  city  of  Washington  prior  to  1871  is 
sufficient  to  show  that  it  was  strictly  municipal  in  its  character  ;  and 
that  the  government  of  the  United  States,  except  so  far  as  the  pro- 
tection of  its  own  public  buildings  and  property  was  concerned,  took 
no  part  in  the  local  government,  any  more  than  any  State  govern- 
ment interferes  with  the  municipal  administration  of  its  cities.  The 
officers  of  the  departments,  even  the  President  himself,  exercised  no 
local  authority  in  city  affairs.  It  is  true,  in  consequence  of  the  large 
property  interests  of  the  United  States  in  Washington,  in  the  public 
parks  and  buildings,  the  government  always  made  some  contribution 
to  the  finances  of  the  city  ;  but  the  residue  was  raised  by  taxing  the 
inhabitants  of  the  city  and  District,  just  as  the  inhabitants  of  all 
municipal  bodies  are  taxed. 

In  1871  an  important  modification  was  made  in  the  form  of  the 
District  government ;  a  legislature  was  established,  with  all  the  ap- 
paratus of  a  distinct  government.  By  the  act  of  February  21st,  of 
that  year,  entitled  ''  An  Act  to  provide  a  government  for  the  District 
of  Columbia,"  16  Stat.  419,  c.  62,  it  was  enacted  (§  1)  that  all  that 
part  of  the  territory  of  the  United  States  included  within  the  limits 
of  the  District  of  Columbia  be  created  into  a  government  by  the 
name  of  the  District  of  Columbia,  by  which  name  it  was  constituted 
"a  bodT/  corporate  for  inunicijml  purposes,'^  with  power  to  make 
contracts,  sue  and  be  sued,  and  "  to  exercise  all  other  powers  of  a 
municipal  corporation  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States."  A  governor  and  legislature  were 
created  ;  also  a  board  of  public  works  ;  the  latter  to  consist  of  the 
governor  as  its  president,  and  four  other  persons,  to  be  appointed  by 
the  President  and  Senate.  To  this  board  was  given  the  control  and 
repair  of  the  streets,  avenues,  alleys,  and  sewers  of  the  city  of  Wash- 
ington, and  all  other  works  which  might  be  intrusted  to  their  charge 
by  the  legislative  assembly  or  Congress.  They  were  empowered  to 
disburse  the  moneys  raised  for  the  improvement  of  streets,  avenues, 
alleys,  and  sewers,  and  roads  and  bridges,  and  to  assess  upon  adjoin- 
ing property,  specially  benefited  thereby,  a  reasonable  proportion  of 
the  cost,  not  exceeding  one  third.  The  acts  of  this  board  were  held 
to  be  binding  on  the  municipality  of  the  District  in  Barnes  v.  District 
of  Columbia,  91  U.  S.  540.  It  was  regarded  as  a  mere  branch  of  the 
District  government,  though  appointed  by  the  President  and  not  sub- 
ject to  the  control  of  the  District  authorities. 

This  constitution  lasted  until  June  20th,  1874,  when  an  act  was 
passed  entitled  •'  An  Act  for  the  government  of  the  District  of 
Columbia,  and  for  other  purposes."  18  Stat.  116,  c.  337.  By  this 
act  the  government  established  by  the  act  of  1871  was  abolished,  and 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate,  was 
authorized  to  appoint  a  commission,  consisting  of  three  persons,  to 
exercise  the  power  and  authority  then  vested  in  the  governor  and 
board  of  public  works,  except  as  afterwards  limited  by  the  act.     By 


526  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

a  subsequent  act,  approved  June  llth,  1878,  20  Stat.  102,  c.  180,  it 
was  enacted  that  the  District  of  Cohunbia  should  "  remain  and  con- 
tinue a  iminicipal  corporation,''^  as  provided  in  §  2  of  the  Revised 
Statutes  relating  to  said  District,  and  the  appointment  of  com- 
missioners was  provided  for,  to  have  and  to  exercise  similar  powers 
given  to  the  commissioners  appointed  under  the  act  of  1874.  All 
rights  of  action  and  suits  for  and  against  the  District  were  expressly- 
preserved  in  statu  quo. 

Under  these  ditferent  changes  the  administration  of  the  affairs  of 
the  District  of  Columbia  and  city  of  Washington  has  gone  on  in 
much  the  same  way,  except  a  change  in  the  depositaries  of  power, 
and  in  the  extent  and  number  of  powers  conferred  upon  them. 
Legislative  powers  have  now  ceased,  and  the  municipal  government 
is  confined  to  mere  administration.  The  identity  of  corporate  exist- 
ence is  continued,  and  all  actions  and  suits  for  and  against  the  Dis- 
trict are  preserved  unaffected  by  the  changes  that  have  occurred. 

In  view  of  these  laws,  the  counsel  of  the  plaintiff  contend  that  the 
government  of  the  District  of  Columbia  is  a  department  of  the 
United  States  government,  and  that  the  corporation  is  a  mere  name, 
and  not  a  person  in  the  sense  of  the  law,  distinct  from  the  govern- 
ment itself.  We  cannot  assent  to  this  view.  It  is  contrary  to  the 
express  language  of  the  statutes.  That  language  is  that  the  District 
shall  "remain  and  continue  a  municipal  corporation,"  with  all  rights 
of  action  and  suits  for  and  against  it.  If  it  were  a  department  of 
the  government,  how  could  it  be  sued  ?  Can  the  Treasury  Depart- 
ment be  sued  ?  or  any  other  department  ?  We  are  of  opinion  that 
the  corporate  capacity  and  corporate  liabilities  of  the  District  of 
Columbia  remain  as  before,  and  that  its  character  as  a  mere  munici- 
pal corporation  has  not  been  changed.  The  mode  of  appointing  its 
officers  does  not  abrogate  its  character  as  a  municipal  body  politic. 
We  do  not  suppose  that  it  is  necessary  to  a  municipal  government, 
or  to  municipal  responsibility,  that  the  officers  should  be  elected  by 
the  people.  Local  self-government  is  undoubtedly  desirable  where 
there  are  not  forcible  reasons  against  its  exercise.  But  it  is  not  re- 
quired by  any  inexorable  principle.  All  municipal  governments  are 
but  agencies  of  the  superior  power  of  the  State  or  government  by 
which  they  are  constituted,  and  are  invested  with  only  such  subordi- 
nate powers  of  local  legislation  and  control  as  the  superior  legisla- 
ture sees  fit  to  confer  upon  them.  The  form  of  those  agencies  and 
the  mode  of  appointing  officials  to  execute  them  are  matters  of 
legislative  discretion.  Commissioners  are  not  unfrequently  ap- 
pointed by  the  legislature  or  executive  of  a  State  for  the  adminis- 
tration of  municipal  affairs,  or  some  portion  thereof,  sometimes 
temporarily,  sometimes  permanently.  It  may  be  demanded  by 
motives  of  expediency  or  the  exigencies  of  the  situation  ;  by  the 
boldness  of  corruption,  the  absence  of  public  order  and  security,  or 
the  necessity  of  high  executive  ability  in  dealing  with  particular 


SECT.  XIII.]       METROPOLITAN  R.  R.  CO.  V.  DISTRICT  OP  COLUMBIA.      527 

populations.  Such  unusual  constitutions  do  not  release  the  people 
from  the  duty  of  obedience  or  from  taxation,  or  the  municipal  body 
from  those  liabilities  to  which  such  bodies  are  ordinarily  subject. 
Protection  of  life  and  property  are  enjoyed,  perhaps  in  greater 
deforce,  than  they  could  be,  in  such  cases,  under  elective  magistral 
cies  ;  and  the  government  of  the  whole  people  is  preserved  in  the 
legislative  representation  of  the  State  or  general  government.  "Nor 
can  it  in  principle,"  said  Mr.  Justice  Hunt  in  the  Barnes  case,  "be 
of  the  slightest  consequence  by  what  means  these  several  officers  are 
placed  in  their  position,  whether  they  are  elected  by  the  people  of 
the  municipality  or  appointed  by  the  President  or  a  governor.  The 
people  are  the  recognized  source  of  all  authority,  State  and  munici- 
pal, and  to  this  authority  it  must  come  at  last,  whether  immediately 
or  by  a  circuitous  process."  Barnes  v.  District  of  Columbia,  91  U.  S. 
540,  545. 

One  argument  of  the  plaintiff's  counsel  in  this  connection  is,  that 
the  District  of  Columbia  is  a  separate  State  or  sovereignty  according 
to  the  definition  of  writers  on  public  law,  being  a  distinct  political 
society.  This  position  is  assented  to  by  Chief  Justice  Marshall, 
speaking  for  this  court,  in  the  case  of  Hepburn  v.  Ellzey,  2  Cranch, 
445,  452,  where  the  question  was  whether  a  citizen  of  the  District 
could  sue  in  the  Circuit  Courts  of  the  United  States  as  a  citizen  of  a 
State.  The  court  did  not  deny  that  the  District  of  Columbia  is  a 
State  in  the  sense  of  being  a  distinct  political  community  ;  but  held 
that  the  word  "  State "  in  the  Constitution,  where  it  extends  the 
judicial  power  to  cases  between  citizens  of  the  several  "  States," 
refers  to  the  States  of  the  Union.  It  is  undoubtedly  true  that  the 
District  of  Columbia  is  a  separate  political  community  in  a  certain 
sense,  and  in  that  sense  may  be  called  a  State  ;  but  the  sovereign 
power  of  this  qualified  State  is  not  lodged  in  the  corporation  of  the 
District  of  Columbia,  but  in  the  government  of  the  United  States. 
Its  supreme  legislative  body  is  Congress.  The  subordinate  legis- 
lative powers  of  a  municipal  character  which  have  been  or  may  be 
lodged  in  the  city  corporations,  or  in  the  District  corporation,  do  not 
make  those  bodies  sovereign.  Crimes  committed  in  the  District  are 
not  crimes  against  the  District,  but  against  the  United  States. 
Therefore,  whilst  the  District  may,  in  a  sense,  be  called  a  State,  it  is 
such  in  a  very  qualified  sense.  No  more  than  this  was  meant  by 
Chief  Justice  Taney,  when,  in  the  Bank  of  Alexandria  v.  Dyer,  14 
Pet.  141,  146,  he  spoke  of  the  District  of  Columbia  as  being  formed, 
by  the  acts  of  Congress,  into  one  separate  political  community,  and 
of  the  two  counties  composing  it  (Washington  and  Alexandria)  as 
resembling  different  counties  in  the  same  State  ;  by  reason  whereof 
it  was  held  that  parties  residing  in  one  county  could  not  be  said  to 
be  "beyond  the  seas,"  or  in  a  different  jurisdiction,  in  reference  to 
the  other  county,  though  the  two  counties  were  subject  to  different 
laws. 


528  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

We  are  clearly  of  opinion  that  the  plaintiff  is  a  municipal  corpora- 
tion, having  a  right  to  sue  and  be  sued,  and  subject  to  the  ordinary- 
rules  that  govern  the  law  of  procedure  between  private  persons.^ 

[The  judgment  of  the  trial  court  is  therefore  reversed.] 


FORT   LEAVENWORTH   RAILROAD   COMPANY  v.   LOWE. 
114  United  States,  525.     1885. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  plaintiff,  a  corporation  organized  under  the  laws  of  Kansas, 
was  in  1880,  and  has  ever  since  been,  the  owner  of  a  railroad  in  the 
reservation  of  the  United  States  in  that  State,  known  as  the  Fort 
Leavenworth  Military  Reservation.  In  that  year  its  track,  right 
of  way,  franchises,  road-bed,  telegraph  line,  and  instruments  con- 
nected therewith  on  the  Reservation,  were  assessed  by  the  board  of 
assessors  of  the  State,  and  a  tax  of  ^394.40  levied  thereon,  which 
was  paid  by  the  railroad  company  under  protest  in  order  to  prevent 
a  sale  of  the  property.  The  present  action  is  brought  [against  the 
sheriff  to  whom  the  money  was  paid]  to  recover  back  the  money  thus 
paid,  on  the  ground  that  the  property,  being  entirely  within  the 
Reservation,  was  exempt  from  assessment  and  taxation  by  the  State. 

The  land  constituting  the  Reservation  was  part  of  the  territory 
acquired  in  1803  by  cession  from  France,  and,  until  the  formation 
of  the  State  of  Kansas,  and  her  admission  into  the  Union,  the 
United  States  possessed  the  rights  of  a  proprietor,  and  had  political 
dominion  and  sovereignty  over  it.  For  many  years  before  that 
admission  it  had  been  reserved  from  sale  by  the  proper  authorities 
of  the  United  States  .for  military  purposes,  and  occupied  by  them 
as  a  military  post.  The  jurisdiction  of  the  United  States  over  it 
during  this  time  was  necessarily  paramount.  But  in  1861  Kansas 
was  admitted  into  the  Union  upon  an  equal  footing  with  the  original 
States,  that  is,  with  the  same  rights  of  political  dominion  and 
sovereignty,  subject  like  them  only  to  the  Constitution  of  the 
United  States.  Congress  might  undoubtedly,  upon  such  admission, 
have  stipulated  for  retention  of  the  political  authority,  dominion 
and  legislative  power  of  the  United  States  over  the  Reservation,  so 
long  as  it  should  be  used  for  military  purposes  by  the  government; 
that  is,  it  could  have  excepted  the  place  from  the  jurisdiction  of 
Kansas,  as  one  needed  for  the  uses  of  the  general  government.     But 

1  In  Geofroy  v.  RtGGs,  133  U.  S.  258  (1890),  it  is  held  that  the  District  of 
Columliia  is  a  "  State  "  within  the  terms  of  a  treaty  with  France  regulating  the  rights 
of  Frenchmen  to  inherit  property  within  the  "  States  of  the  Union." 

The  provisions  of  the  Seventh  Amendment  as  to  trial  by  jury  are  applicable  to  the 
District  of  Columbia.     Capital  Traction  Co.  v.  Hof,  174  U.  S.  1 ;  i'l/ra,  p.  956. 


SECT.  XIII.]       FORT   LEAVENWORTH    EAILROAD    CO.    V.   LOWE.  529 

from  some  cause,  inadvertence  perhaps,  or  over-confidence  that  a 
recession  of  such  jurisdiction  could  be  had  whenever  desired,  no 
such  stipuhition  or  exception  was  made.  The  United  States,  there- 
fore, retained,  after  the  admission  of  the  State,  only  the  rights  of 
an  ordinary  proprietor;  except  as  an  instrument  for  the  execution 
of  the  powers  of  the  general  government,  that  part  of  the  tract, 
which  was  actually  used  for  a  fort  or  military  post,  was  beyond 
such  control  of  the  State,  by  taxation  or  otherwise,  as  would  defeat 
its  use  for  those  purposes.  So  far  as  the  land  constituting  the 
Keservation  was  not  used  for  military  purposes,  the  possession  of 
the  United  States  was  only  that  of  an  individual  proprietor.  The 
State  could  have  exercised,  with  reference  to  it,  the  same  authority 
and  jurisdiction  which  she  could  have  exercised  over  similar  prop- 
erty held  by  private  parties.  This  defect  in  the  jurisdiction  of 
the  United  States  was  called  to  the  attention  of  the  government  in 
1872.  In  April  of  that  year  the  Secretary  of  War  addressed  a 
communication  to  the  Attorney-General,  enclosing  papers  touching 
the  Reservation,  and  submitting  for  his  official  opinion  the  ques- 
tions, whether,  under  the  Constitution,  the  reservation  of  the  land 
for  a  site  as  a  military  post  and  for  public  buildings  took  it  out  of 
the  operation  of  the  law  of  March  3,  1859,  11  Stat.  430,  and,  if  so, 
what  action  would  be  required  on  the  part  of  the  Executive  or  Con- 
gress to  restore  the  land  to  the  exclusive  jurisdiction  of  the  United 
States.  The  Attorney-General  replied  that  the  act  admitting 
Kansas  as  a  State  into  the  Union  had  the  effect  to  withdraw  from 
Federal  jurisdiction  all  the  territory  within  the  boundaries  of  the 
new  State,  excepting  only  that  of  the  Indians  having  treaties  with 
the  United  States,  which  provided  that  without  their  consent  such 
territory  should  not  be  subject  to  State  jurisdiction,  and  the  Reser- 
vation was  not  within  this  exception;  and  that  to  restore  the 
Federal  jurisdiction  over  the  land  included  in  the  Reservation,  it 
would  be  necessary  to  obtain  from  the  State  of  Kansas  a  cession  of 
jurisdiction,  which  he  had  no  doubt  would  upon  application  be 
readily  granted  by  the  State  legislature.  14  Opin.  Attorneys- 
General,  33.  It  does  not  appear  from  the  record  before  us  tliat 
such  application  was  ever  made;  but,  on  the  22d  of  February,  1875, 
the  legislature  of  the  State  passed  an  act  entitled  "  An  Act  to  cede 
jurisdiction  to  the  United  States  over  the  territory  of  the  Fort 
Leavenworth  Military  Reservation,"  the  first  section  of  which  is 
as  t'ollovvs :  — 

"That  exclusive  jurisdiction  be,  and  the  same  is  hereby  ceded  to 
the  United  States  over  and  within  all  the  territory  owned  by  the 
United  States,  and  included  within  the  limits  of  the  United  States 
military  reservation  known  as  the  Fort  Leavenworth  Reservation  in 
said  State,  as  declared  from  time  to  time  by  the  President  of  the 
United  States,  saving,  however,  to  the  said  State  the  right  to  serve 
civil  or  criminal  process  within  said  Reservation,  in  suits  or  prose- 

34 


530  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

cutions  for  or  on  account  of  rights  acquired,  obligations  incurred, 
or  crimes  committed  in  said  State,  but  outside  of  said  cession  and 
Reservation;  and  saving  further  to  said  State  the  right  to  tax  rail- 
road, bridge,  and  other  corporations,  their  franchises  and  property, 
on  said  Reservation."     Laws  of  Kansas,  1875,  p.  95. 

The  question  as  to  the  right  of  the  plaintiff  to  recover  back  the 
taxes  paid  depends  upon  the  validity  and  effect  of  the  last  saving 
clause  in  this  act.  As  we  have  said,  there  is  no  evidence  before  us 
that  any  application  was  made  by  the  United  States  for  this  legisla- 
tion, but,  as  it  conferred  a  benefit,  the  acceptance  of  the  act  is  to 
be  presumed  in  the  absence  of  any  dissent  on  their  part.  The 
contention  of  the  plaintiff  is  that  the  act  of  cession  operated  under 
the  Constitution  to  vest  in  the  United  States  exclusive  jurisdiction 
over  the  Reservation,  and  that  the  last  saving  clause,  being  incon- 
sistent with  that  result,  is  to  be  rejected.  The  Constitution  pro- 
vides that  "Congress  shall  have  ix)wer  to  exercise  exclusive  lerjishition 
in  all  cases  whatsoever  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States  and  the  acceptance 
of  Congress,  become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority  over  all  places  purchased  by  the 
consent  of  the  legislature  of  the  State  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other 
needful  buildings."     Art.  1,  sec.  8. 

The  necessity  of  complete  jurisdiction  over  the  place  which 
should  be  selected  as  the  seat  of  government  was  obvious  to  the 
framers  of  the  Constitution.  Unless  it  were  conferred  the  delibera- 
tions of  Congress  might  in  times  of  excitement  be  exposed  to  inter- 
ruptions without  adequate  means  of  protection;  its  members,  and 
the  officers  of  the  government,  be  subjected  to  insult  and  intimida- 
tion, and  the  public  archives  be  in  danger  of  destruction.  The 
Federalist,  in  support  of  this  clause  in  the  Constitution,  in  addition 
to  these  reasons,  urged  that  "a  dependence  of  the  members  of  the 
general  government  on  the  State  comprehending  the  seat  of  the 
government  for  protection  in  the  exercise  of  their  duty,  might  bring 
on  the  national  councils  an  imputation  of  awe  or  influence,  equally 
dishonorable  to  the  government  and  dissatisfactory  to  the  other 
members  of  the  confederacy."     No.  43. 

The  necessity  of  supreme  legislative  authority  over  the  seat  of 
government  was  forcibly  impressed  upon  the  members  of  the  con- 
stitutional convention  by  occurrences  which  took  place  near  the 
close  of  the  Revolutionary  War.  At  that  time,  while  Congress 
was  in  session  in  Philadelphia,  it  was  surrounded  and  insulted  by 
a  body  of  mutineers  of  the  Continental  Army.  In  giving  an  account 
of  this  proceeding,  Mr.  Rawle,  in  his  Treatise  on  the  Constitution, 
says  of  the  action  of  Congress:  "It  applied  to  the  executive  author- 
ity of  Pennsylvania  for  defence;  but,  under  the  ill-conceived  Con- 
stitution of  the  State  at  that  time,  the  executive  power  was  vested 


SECT.  XIII.]       FORT   LEAVENWORTH    RrAILROAD    CO.    V.   LOWE.  531 

in  a'counoil,  consisting  of  thii-teen  members,  and  they  possessed 
or  exhibited  so  little  energy,  and  such  apparent  intimidation,  that 
the  Congress  indignantly  removed  to  New  Jersey,  whose  inhabitants 
welcomed  it  with  promises  of  defending  it.  It  remained  for  some 
time  at  Princeton  without  being  again  insulted,  till,  for  the  sake  of 
greater  convenience,  it  adjourned  to  Annapolis.  The  general  dis- 
satisfaction with  the  proceedings  of  the  executive  authority  of 
Pennsylvania,  and  the  degrading  spectacle  of  a  fugitive  Congress, 
suggested  the  remedial  provisions  now  under  consideration." 
Kawle,  Constitution  of  the  United  States,  113.  Of  this  proceeding 
Mr.  Justice  Story  remarks :  "  If  such  a  lesson  could  have  been  lost 
upon  the  people,  it  would  have  been  as  humiliating  to  their  intelli- 
gence as  it  would  have  been  offensive  to  their  honor."  2  Story, 
Constitution,    §  1219. 

Upon  the  second  part  of  the  clause  in  question,  giving  power  to 
"exercise  like  authority,"  that  is,  of  exclusive  legislation  "over  all 
places  purchased  by  the  consent  of  the  legislature  of  the  State  in 
which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dock-yards,  and  other  needful  buildings,"  the  Federalist 
observes  that  the  necessity  of  this  authority  is  not  less  evident. 
"The  public  money  expended  on  such  places,"  it  adds,  "and  the 
public  property  deposited  in  them,  require  that  they  should  be 
exempt  from  the  authority  of  the  particular  State.  Nor  would  it 
be  proper  for  the  places  on  which  the  security  of  the  entire  Union 
may  depend  to  be  in  any  degree  dependent  on  a  particular  member 
of  it.  All  objections  and  scruples  are  here  also  obviated  by  requir- 
ing the  concurrence  of  the  States  concerned  in  every  such  estab- 
lishment." "The  power,"  says  Mr.  Justice  Story,  repeating  the 
substance  of  Mr.  Madison's  language,  "is  wholly  unexceptionable, 
since  it  can  only  be  exercised  at  the  will  of  the  State,  and  therefore 
it  is  placed  beyond  all  reasonable  scruple." 

This  power  of  exclusive  legislation  is  to  be  exercised,  as  thus 
seen,  over  places  purchased,  by  consent  of  the  legislatures  of  the 
States  in  which  they  are  situated,  for  the  specific  purposes  enu- 
merated. It  would  seem  to  have  been  the  opinion  of  the  framers 
of  the  Constitution  that,  witliout  the  consent  of  the  States,  the  new 
government  would  not  be  able  to  acquire  lands  within  them;  and 
therefore  it  was  provided  that  when  it  might  require  such  lands  for 
the  erection  of  forts  and  other  buildings  for  the  defence  of  the 
country,  or  the  discharge  of  other  duties  devolving  upon  it,  and  the 
consent  of  the  States  in  which  they  were  situated  was  obtained 
for  their  acquisition,  such  consent  should  carry  with  it  political 
dominion  and  legislative  authority  over  them.  Purchase  with  such 
consent  was  the  only  mode  then  thought  of  for  the  acquisition  by 
the  general  government  of  title  to  lands  in  the  States.  Since  the 
adoption  of  the  Constitution  this  view  has  not  generally  prevailed. 
Such  consent  has  not  always  been  obtained,  nor  supposed  necessary, 


532  THE   LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

for  the  purchase  by  the  general  government  of  lands  wHhin  the 
States.  If  any  doubt  has  ever  existed  as  to  its  power  thus  to 
acquire  lands  within  the  States,  it  has  not  had  sufficient  strength  to 
create  any  effective  dissent  from  the  general  opinion.  The  consent 
of  the  States  to  the  purchase  of  lands  within  them  for  the  special 
purposes  named  is,  however,  essential,  under  the  Constitution,  to 
the  transfer  to  the  general  govei'ument,  with  the  title,  of  political 
jurisdiction  and  dominion.  Where  lands  are  acquired  without  such 
consent,  the  possession  of  the  United  States,  unless  political  juris- 
diction be  ceded  to  them  in  some  other  way,  is  simply  that  of  an 
ordinary  proprietor.  The  property  in  that  case,  unless  used  as  a 
means  to  carry  out  the  purposes  of  the  government,  is  subject  to 
the  legislative  authority  and  control  of  the  States  equally  with  the 
property  of  private  individuals. 

But  not  only  by  direct  purchase  have  the  United  States  been  able 
to  acquire  lands  they  needed  without  the  consent  of  the  States,  but 
it  has   been   held   that  they  possess  the  right  of  eminent  domain 
within  the  States,  using  those  terms,  not  as  expressing  the  ultimate 
dominion  or  title  to  property,  but  as  indicating  the  right  to  take 
private  property  for  public  uses  when  needed  to  execute  the  powers 
conferred  by  the  Constitution;  and  that  the  general  government  is 
not  dependent  upon  the  caprice  of  individuals  or  the  will  of  State 
legislatures  in  the  acquisition  of  such  lands  as  may  be  required  for 
the   full   and   effective  exercise  of  its  powers.     This  doctrine  was 
authoritatively  declared  in  Kohl  v.   United  States,   91  U.  S.  3G7. 
All  the  judges  of  the  court  agreed  in  the  possession  by  the  general 
government  of  this  right,  although  there  was  a  difference  of  opinion 
whether  provision  for  the  exercise  of  the  right  had  been  made  in 
that  case.     The  court,  after  observing  that  lands  in  the  States  are 
needed  for  forts,  armories,  and  arsenals,  for  navy-yards  and  light- 
houses, for  custom-houses   and  court-houses,    and  for  other  public 
uses,  said:  "If  the  right  to  acquire  property  for  such  uses  may  be 
made  a  barren  right  by  the  unwillingness  of  property-holders   to 
sell,  or  by  the  action  of  a  State  prohibiting  a  sale  to  the  Federal 
government,   the   constitutional   grants  of   power  may  be  rendered 
nugatory,  and  the  government  is  dependent  for  its  practical  exist- 
ence  upon   the   will   of  a  State,   or  even  upon   that  of  a  private 
citizen."     The  right  to  acquire  property  in  this  way,  by  condemna- 
tion, may  be  exerted  either  through  tribunals  expressly  designated 
by  Congress,  or  by  resort  to  tribunals   of  the  State  in  which  the 
property  is    situated,    with    her   consent   for   that   purpose.      Such 
consent  will  always  be  presumed  in  the  absence  of  express  prohibi- 
tion.    United  States  v.  Jones,  109  U.  S.  513,  519;  Matter  of  Peti- 
tion of  United  States,  96  N.  Y.  227. 

Besides  these  modes  of  acquisition,  the  United  States  possessed, 
on  the  adoption  of  the  Constitution,  an  immense  domain  lying  north 
and  west  of  the  Ohio  River,  acquired  as  the  result  of  the  Eevolu- 


SECT.  XIII.]       FORT   LEAVENWORTH    RAILROAD    CO.    V.   LOWE.  533 

tionary  War  from  Great  Britain,  or  by  cessions  from  Virginia, 
Massachusetts,  and  Connecticut;  and,  since  the  adoption  of  the  Con- 
stitution, they  have  by  cession  from  foreign  countries,  come  into 
the  ownership  of  a  territory  still  larger,  lying  between  the  Mis- 
sissippi Eiver  and  the  Pacific  Ocean,  and  out  of  these  territories 
several  States  have  been  formed  and  admitted  into  the  Union.  The 
proprietorship  of  the  United  States  in  large  tracts  of  land  within 
these  States  has  remained  after  their  admission.  There  has  been, 
therefore,  no  necessity  for  them  to  purchase  or  to  condemn  lands 
within  those  States,  for  forts,  arsenals,  and  other  public  buildings, 
unless  they  had  disposed  of  what  they  afterwards  needed.  Having 
the  title,  they  have  usually  reserved  certain  portions  of  their  lands 
from  sale  or  other  disposition,  for  the  uses  of  the  government. 

This  brief  statement  as  to  the  different  modes  in  which  the 
United  States  have  acquired  title  to  lands  upon  which  public  build- 
ings have  been  erected  will  serve  to  explain  the  nature  of  their 
jurisdiction  over  such  places,  and  the  consistency  with  each  other 
of  decisions  on  the  subject  by  Federal  and  State  tribunals,  and  of 
opinions  of  the  Attorneys-General. 

When  the  title  is  acquired  by  purchase  by  consent  of  the  legisla- 
tures of  the  States,  the  Federal  jurisdiction  is  exclusive  of  all  State 
authority.  This  follows  from  the  declaration  of  the  Constitution 
that  Congress  shall  have  "like  authority"  over  such  places  as  it  has 
over  the  district  which  is  the  seat  of  government;  that  is,  the  power 
of  "exclusive  legislation  in  all  cases  whatsoever."  Broader  or 
clearer  language  could  not  be  used  to  exclude  all  other  authority 
than  that  of  Congress;  and  that  no  other  authority  can  be  exercised 
over  them  has  been  the  uniform  opinion  of  Federal  and  State 
tribunals,  and  of  the  Attorneys-General. 

The  reservation  which  has  usually  accompanied  the  consent  of 
the  States  that  civil  and  criminal  process  of  the  State  courts  may 
be  served  in  the  places  purchased,  is  not  considered  as  interfering 
in  any  respect  with  the  supremacy  of  the  United  States  over  them; 
but  is  admitted  to  prevent  them  from  becoming  an  asylum  for 
fugitives  from  justice.  And  Congress,  by  statute  passed  in  1795, 
declared  that  cessions  from  the  States  of  the  jurisdiction  of  places 
where  light-houses,  beacons,  buoys,  or  public  piers  were  or  might 
be  erected,  with  such  reservations,  should  be  deemed  sufficient  for 
the  support  and  erection  of  such  structures,  and  if  no  such  reserva- 
tion had  been  made,  or  in  future  cessions  for  those  purposes  should 
be  omitted,  civil  and  criminal  process  issued  under  the  authority  of 
the  State  or  of  the  United  States  might  be  served  and  executed 
within  them.     1  Stat.  426,  ch.  40. 

Thus,  in  United  States  v.  Cornell,  2  Mason,  60,  it  was  held  by 
Mr.  Justice  Story,  that  the  purchase  of  land  by  the  United  States 
for  public  purposes,  within  the  limits  of  a  State,  did  not  of  itself 
oust  the  jurisdiction  or  sovereignty  of  the  State  over  the  lands  pur- 


fi34  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

chased;  but  that  the  purchase  must  be  by  consent  of  the  legislature 
of  the  State,  and  then  the  jurisdiction  of  the  United  States  under 
the  Constitution  became  exclusive.  In  that  case  the  defendant  was 
indicted  for  murder  committed  in  Fort  Adams,  in  Newport  Harbor, 
Khode  Island.  The  place  had  been  purchased  by  the  United  States 
with  the  consent  of  the  State,  to  which  was  added  the  reservation 
mentioned,  as  to  the  service  of  civil  and  criminal  process  within  it. 
The  main  questions  presented  for  decision  were,  whether  the  sole 
and  exclusive  jurisdiction  over  the  place  vested  in  the  United  States 
without  a  formal  act  of  cession,  and  whether  the  reservation  as  to 
service  of  process  made  the  jurisdiction  concurrent  with  that  of  the 
State.  The  first  question  was  answered,  as  above,  that  the  pur- 
chase by  consent  gave  the  exclusive  jurisdiction;  and;  as  to  the 
second  question,  the  court  said:  "In  its  terms,  it  cert? inly  does  not 
contain  any  reservation  of  concurrent  jurisdiction  or  legislation. 
It  provides  only  that  civil  and  criminal  process  issued  under  the 
authority  of  the  State,  which  must,  of  course,  be  for  acts  done 
within  and  cognizable  by  the  State,  may  be  executed  within  the 
ceded  lands,  notwithstanding  the  cession.  Not  a  word  is  said  from 
which  we  can  infer  that  it  was  intended  that  the  State  should  have 
a  right  to  punish  for  acts  done  within  the  ceded  lands.  The  whole 
apparent  object  is  answered  by  considering  the  clause  as  meant  to 
prevent  these  lands  from  becoming  a  sanctuary  for  fugitives  from 
justice  for  acts  done  within  the  acknowledged  jurisdiction  of  the 
State.  Now,  there  is  nothing  incompatible  with  the  exclusive 
sovereignty  or  jurisdiction  of  one  State  that  it  should  permit  another 
State  in  such  cases  to  execute  its  process  within  its  limits.  And  a 
cession  of  exclusive  jurisdiction  may  well  be  made  with  a  reserva- 
tion of  a  right  of  this  nature,  which  then  operates  only  as  a  condi- 
tion annexed,  to  the  cession,  and  as  an  agreement  of  the  new 
sovereign  to  permit  its  free  exercise  as  quoad  hoc  his  own  process. 
This  is  the  light  in  which  clauses  of  this  nature  (which  are  very 
frequent  in  grants  made  by  the  States  to  the  United  States)  have 
been  received  by  this  court  on  various  occasions  on  which  the  sub- 
ject has  been  heretofore  brought  before  it  for  consideration,  and 
it  is  the  same  light  in  which  it  has  also  been  received  by  a  very 
learned  State  court.  In  our  judgment  it  comports  entirely  Avith  the 
apparent  intention  of  the  parties,  and  gives  effect  to  acts  which 
might  otherwise,  perhaps,  be  construed  entirely  nugatory.  For 
it  may  well  be  doubted  whether  Congress  is,  by  the  terms  of  the 
Constitution,  at  liberty  to  purchase  lands  for  forts,  dock-yards, 
&c.,  with  the  consent  of  the  State  legislature,  where  such  consent 
is  so  qualified  that  it  will  not  justify  the  exclusive  legislation  of 
Congress  there.  It  may  well  be  doubted  if  such  consent  be  not 
utterly  void.  Ut  res  magis  vnleat  qunm  pereat,  we  are  bound  to 
give  the  present  act  a  different  construction  if  it  may  reasonably  be 
done;  and  we  have  not  the  least  hesitation  in  declaring  that  the 


SECT.  XIII.]       FORT  LEAVENWORTH   RAILROAD   CO.    V.   LOWE.  535 

true  interpretation  of  the  present  proviso  leaves  the  sole  and  exclu- 
sive jurisdiction  of  Fort  Adams  in  the  United  States." 

The  case  referred  to  in  which  the  subject  was  considered  by  a 
learned  State  court  is  that  of  Commonwealth  v.  Clary,  b  Mass.  72 
There  the  Supreme  Court  of  Massachusetts  held  that  the  courts  of 
the  Commonwealth  could  not  take  cognizance  of  olfences  committed 
upon  lands  in  the  town  of  Springfield  purchased  with  the  consent 
of  the  Commonwealth  by  the  United  States  for  the  purpose  of 
erecting  arsenals  upon  them.  That  was  the  case  of  a  prosecution 
against  the  defendaut  for  selling  spirituous  liquors  on  the  laud 
without  a  license,  contrary  to  a  statute  of  the  State.  But  the 
court  held  that  the  law  had  no  operation  within  the  lands  men- 
tioned. "The  territory,"  it  said,  "on  which  the  offence  charged  is 
agreed  to  have  been  committed  is  the  territory  of  the  United  States, 
over  which  the  Congress  have  exclusive  power  of  legislation."  It 
added,  that  "  the  assent  of  the  Commonwealth  to  the  purchase  of 
this  territory  by  the  United  States  had  this  condition  annexed  to 
it,  that  civil  and  criminal  process  might  be  served  therein  by  the 
officers  of  the  Commonwealth.  This  condition  was  made  with  a 
view  to  prevent  the  territory  from  becoming  a  sanctuary  for  debtors 
and  criminals;  and  from  the  subsequent  assent  of  the  United  States 
to  the  said  condition,  evidenced  by  their  making  the  purchase,  it 
results  that  the  officers  of  the  Commonwealth,  in  executing  such 
process,  act  under  the  authority  of  the  United  States.  No  offences 
committed  within  that  territory  are  committed  against  the  laws  of 
this  Commonwealth,  nor  can  such  offences  be  punishable  by  the 
courts  of  the  Commonwealth  unless  the  Congress  of  the  United 
States  should  give  to  the  said  courts  jurisdiction  thereof."  In 
Mitchell  V.  Tibbetts,  17  Pick.  298,  before  the  same  court,  years 
afterwards,  it  was  held  that  a  vessel  employed  in  transporting  stone 
from  Maine  to  the  navy-yard  in  Charlestown,  Mass. ,  a  place  pur- 
chased by  the  United  States  with  the  consent  of  the  State,  was  not 
employed  in  transporting  stone  within  the  Commonwealth,  and 
therefore  committed  no  offence  in  disregarding  a  statute  making 
certain  requirements  of  vessels  thus  employed.  The  court  said  that 
to  bring  a  vessel  within  the  description  of  the  statute,  she  must  be 
employed  in  landing  stone  at,  or  taking  stone  from,  some  place  in 
the  Commonwealth,  and  that  the  law  of  Massachusetts  did  not 
extend  to  and  operate  within  the  territory  ceded,  adopting  the  prin- 
ciple of  its  previous  decision  in  8  ]\rass. 

In  March,  1841,  the  House  of  Representatives  of  Massachusetts 
requested  of  the  justices  of  the  Supreme  Judicial  Court  of  that 
State  their  opinion  whether  persons  residing  on  lands  in  that  State 
purchased  by  or  ceded  to  the  United  States  for  navy-yards,  arsenals, 
dock-yards,  forts,  light-houses,  hospitals,  and  armories  were  entitled 
to  the  benefits  of  the  State  common  schools  for  their  children  in  the 
towns  where  such  lands  were  located;  and  the  justices  replied  that, 


636  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

"  where  the  general  consent  of  the  Commonwealth  is  given  to  the 
purchase  of  territory  by  the  United  States  for  forts  and  dock -yards, 
and  where  there  is  no  other  condition  or  reservation  in  the  act 
granting  such  consent,  but  that  of  a  concurrent  jurisdiction  of  the 
State  for  the  service  of  civil  process  and  criminal  process  against 
persons  charged  with  crimes  committed  out  of  such  territory,  the 
government  of  the  United  States  has  the  sole  and  exclusive  juris- 
diction over  such  territory  for  all  purposes  of  legislation  and  juris- 
prudence with  the  single  exception  expressed;  and  consequently 
that  no  persons  are  amenable  to  the  laws  of  the  Commonwealth  for 
crimes  and  offences  committed  within  said  territory;  and  that 
persons  residing  within  the  same  do  not  acquire  the  civil  and 
political  privileges,  nor  do  they  become  subject  to  the  civil  duties 
and  obligations,  of  inhabitants  of  the  towns  within  which  such  terri- 
tory is  situated."  And,  accordingly,  they  were  of  opinion  that 
persons  residing  on  such  lands  were  not  entitled  to  the  benefits  of 
the  common  schools  for  tlieir  children  in  the  towns  in  which  such 
lands  were  situated.     1  Met.  580. 

In  Sinks  v.  Reese,  19  Ohio  St.  306,  the  question  came  before  the 
Supreme  Court  of  Ohio,  as  to  the  effect  of  a  proviso  in  the  act  of 
that  State,  ceding  to  the  United  States  its  jurisdiction  over  lands 
within  her  limits  for  the  purposes  of  a  National  Asylum  for  Dis- 
abled Volunteer  Soldiers,  which  was,  that  nothing  in  the  act  should 
be  construed  to  prevent  the  officers,  employees,  and  inmates  of  the 
asylum,  who  were  qualified  voters  of  the  State,  from  exercising  the 
right  of  suffrage  at  all  township,  county,  and  State  elections  in 
the  township  in  which  the  National  Asylum  should  be  located. 
And  it  was  held  that,  upon  the  purchase  of  the  territory  by  the 
United  States,  with  the  consent  of  the  legislature  of  the  State, 
the  general  government  became  invested  with  exclusive  jurisdiction 
over  it  and  its  appurtenances  in  all  cases  whatsoever;  and  that  the 
inmates  of  such  asylum  resident  within  the  territory,  being  within 
such  exclusive  jurisdiction,  were  not  residents  of  the  State  so  as  to 
entitle  them  to  vote,  within  the  meaning  of  the  Constitution,  which 
conferred  the  elective  franchise  upon  its  residents  alone. 

To  the  same  effect  have  been  the  opinions  of  the  Attorneys- 
General,  when  called  for  by  the  head  of  one  of  the  Departments. 
Thus,  in  the  case  of  the  armory  at  Harper's  Ferry,  in  Virginia, 
the  question  arose  whether  officers  of  the  army,  or  other  persons, 
residing  in  the  limits  of  the  armory,  the  lands  composing  which  had 
been  purchased  by  consent  of  the  State,  were  liable  to  taxation  by 
her.  The  consent  had  been  accompanied  by  a  cession  of  jurisdic- 
tion, with  a  declaration  that  the  State  retained  concurrent  jurisdic- 
tion with  the  United  States  over  the  place,  so  far  as  it  could 
consistently  with  the  acts  giving  consent  to  the  purchase  and  ceding 
jurisdiction;  and  that  its  courts,  magistrates,  and  officers  might  take 
such  cognizance,  execute  such  processes,  and  discharge  such  other 


SECT.  XIII.]       FORT   LEAVENWORTH    RAILROAD    CO.    I'.    LOWE.  537 

le<Tal  functions  within  it  as  might  not  be  incompatible  with  the 
true  intent  and  meaning  of  those  acts.  The  question  having  been 
submitted  to  tlie  Attorney-General,  he  replied  that  the  sole  object 
and  effect  of  the  reservation  was  to  prevent  the  place  from  becom- 
ing a  sanctuary  for  fugitives  from  justice,  for  acts  done  within 
the  acknowledged  jurisdiction  of  the  State,  and  that  in  all  other 
respects  the  exterritoriality  of  the  armory  at  Harper's  Ferry  was 
complete,  in  so  far  as  regards  the  State;  that  the  persons  in  the 
employment  of  the  United  States,  actually  residing  in  the  limits  of 
the  armory,  did  not  possess  the  civil  and  political  rights  of  citizens 
of  the  State,  nor  were  they  subject  to  the  tax  and  other  obligations 
of  such  citizens.  6  Opius.  Attorneys-General,  577.  See  also  the 
case  of  The  New  York  Post  Office  Site,  10  Opins.  Attorneys- 
General,  35. 

These  authorities  are  sufficient  to  support  the  proposition  which 
follows  naturally  from  the  language  of  the  Constitution,  that  no 
other  legislative  power  than  that  of  Congress  can  be  exercised  over 
lands  within  a  State  purchased  by  the  United  States  with  her  con- 
sent for  one  of  the  purposes  designated;  and  that  such  consent 
under"  the  Constitution  operates  to  exclude  all  other  legislative 
authority. 

But  with  reference  to  lands  owned  by  the  United  States,  acquired 
by  purchase  without  the  consent  of  the  State,  or  by  cessions  from 
other  governments,  the  case  is  different.  Story,  in  his  Commenta- 
ries on  the  Constitution,  says:  "If  there  has  been  no  cession  by  the 
State  of  the  place,  although  it  has  been  constantly  occupied  and 
used  under  purchase,  or  otherwise,  by  the  United  States  for  a  fort 
or  arsenal,  or  other  constitutional  purpose,  the  State  jurisdiction 
still  remains  complete  and  perfect;  "  and  in  support  of  this  statement 
he  refers  to  People  v.  Godfrey,  17  Johns.  225.  In  that  case  the 
land  on  which  Fort  Niagara  was  erected,  in  New  York,  never  hav- 
ing been  ceded  by  the  State  to  the  United  States,  it  was  adjudged 
that  the  courts  of  the  State  had  jurisdiction  of  crimes  or  offences 
against  the  laws  of  the  State  committed  within  the  fort  or  its  pre- 
cincts, although  it  had  been  garrisoned  by  the  troops  of  the  United 
States  and  held  by  them  since  its  surrender  by  Great  Britain  pur- 
suant to  the  treaties  of  1783  and  1794.  In  deciding  the  case,  the 
court  said  that  the  possession  of  the  post  by  the  United  States  must 
be  considered  as  a  possession  for  the  State,  not  in  derogation  of  her 
rights,  observing  that  it  regarded  it  as  a  fundamental  principle  that 
the  rights  of  sovereignty  were  not  to  be  taken  away  by  implication. 
"If  the  United  States,"  the  court  added,  "had  the  right  of  exclusive 
legislation  over  the  Fortress  of  Niagara  they  would  have  also  exclu- 
sive jurisdiction;  but  we  are  of  opinion  that  the  right  of  exclusive 
legislation  within  the  territorial  limits  of  any  State  can  be  acquired 
by  the  United  States  only  in  the  mode  pointed  out  in  the  Constitu- 
tion, by  purchase,  by  consent  of  the  legislature  of  the  State  in  which 


538  THE  LEGISLATIVE   DEPARTMENT.  [CHAP.  IT. 

the  same  shall  be,  for  the  erection  efforts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings.  The  essence  of  that  provision 
is  that  tiie  State  shall  freely  cede  the  particular  place  to  the  United 
States  for  one  of  the  specific  and  enumerated  objects.  This  juris- 
diction cannot  be  acquired  tortiously  or  by  disseisin  of  the  State- 
much  less  can  it  be  acquired  by  mere  occupancy,  with  the  implied 
or  tacit  consent  of  the  State,  when  such  occupancy  is  for  the  pur- 
pose of  protection." 

Where,  therefore,  lands  are  acquired  in  any  other  way  by  the 
United  States  within  the  limits  of  a  State  than  by  purchase  with 
her  consent,  they  will  hold  the  lands  subject  to  this  qualification: 
that  if  upon  them  forts,  arsenals,  or  other  public  buildings  are 
erected  for  the  uses  of  the  general  government,  such  buildings,  with 
their  appurtenances,  as  instrumentalities  for  the  execution  of  its 
powers,  will  be  free  from  any  such  interference  and  jurisdiction  of 
the  State  as  would  destroy  or  impair  their  effective  use  for  the  pur- 
poses designed.  Such  is  the  law  with  reference  to  all  instrumen- 
talities created  by  the  general  government.  Their  exemption  from 
State  control  is  essential  to  the  independence  and  sovereign  author- 
ity of  the  United  States  within  the  sphere  of  their  delegated 
powers.  But,  when  not  used  as  such  instrumentalities,  the  legis- 
lative power  of  the  State  over  the  places  acquired  will  be  as  full 
and  complete  as  over  any  other  places  within  her  limits. 

As  already  stated,  the  land  constituting  the  Fort  Leavenworth 
Military  Reservation  was  not  purchased,  but  was  owned  by  the 
United  States  by  cession  from  France  many  years  before  Kansas 
became  a  State;  and  whatever  political  sovereignty  and  dominion 
the  United  States  had  over  the  place  comes  from  the  cession  of  the 
State  since  her  admission  into  the  Union.  It  not  being  a  case 
where  exclusive  legislative  authority  is  vested  by  the  Constitution 
of  the  United  States,  that  cession  could  be  accompanied  with  such 
conditions  as  the  State  might  see  fit  to  annex  not  inconsistent  with 
the  free  and  effective  use  of  the  fort  as  a  military  post. 

In  the  recent  case  of  the  Fort  Porter  Military  Reservation,  the 
opinion  of  the  Attorney-General  was  in  conformity  with  this  view  of 
the  law.  On  the  28th  of  February,  1842,  the  legislature  of  New 
York  authorized  the  commissioners  of  its  land  office  to  cede  to  the 
United  States  the  title  to  certain  land  belonging  to  the  State  within 
her  limits,  "for  military  purposes,  reserving  a  free  and  uninter- 
rupted use  and  control  in  the  canal  commissioners  of  all  that  may 
be  necessary  for  canal  and  harbor  purposes."  Under  this  act  the 
title  was  conveyed  to  the  United  States.  The  act  also  ceded  to 
them  jurisdiction  over  the  land.  In  1880,  the  superintendent  of 
public  works  in  New  York,  upon  whom  the  duties  of  canal  com- 
missioner were  devolved,  informed  the  Secretary  of  War  that  the 
interests  of  the  State  required  that  the  land,  or  a  portion  of  it, 
should  be  occupied  by  her  for  canal  purposes,  claiming  the  right  to 


SECT.  XIII.]       FORT   LEAVENWORTH   RAILROAD    CO.    V.    LOWE.  639 

thus  occupy  it  under  the  reservation  in  the  act  of  cession.  The 
opinion  of  the  Attorney-General  was,  therefore,  requested  as  to  the 
authority  of  the  Secretary  of  War  to  permit  the  State,  under  these 
considerations,  to  use  so  much  of  the  land  as  would  not  interfere 
with  its  use  for  military  purposet;.  The  Attorney-General  replied 
that  the  United  States,  under  the  grant,  held  the  land  for  military 
purposes,  and  that  the  reservation  in  favor  of  the  State  could  be 
deemed  valid  only  so  far  as  it  was  not  repugnant  to  the  grant;  that, 
hence,  the  right  of  the  State  to  occupy  and  use  the  premises  for 
canal  or  harbor  purposes  must  be  regarded  as  limited  or  restricted 
by  the  purposes  of  the  grant;  that,  when  such  use  and  occupation 
would  defeat  or  interfere  with  those  purposes,  the  right  of  the  State 
did  not  exist;  but,  when  they  would  not  interfere  with  those  pur- 
poses, the  State  was  entitled  to  use  so  much  of  the  land  as  might 
be  necessary  for  her  canal  and  harbor  purposes.  IG  Upin.  Attorneys- 
General,  592. 

We  are  here  met  with  the  objection  that  the  legislature  of  a 
State  has  no  power  to  cede  away  her  jurisdiction  and  legislative 
power  over  any  portion  of  her  territory,  except  as  such  cession 
follows  under  the  Constitution  from  her  consent  to  a  purchase  by 
the  United  States  for  some  one  of  the  purposes  mentioned.  If  this 
were  so,  it  would  not  aid  the  railroad  company;  the  jurisdiction  of 
the  State  would  then  remain  as  it  previously  existed.  But  aside 
from  this  consideration,  it  is  undoubtedly  true  that  the  State, 
whether  represented  by  her  legislature,  or  through  a  convention 
specially  called  for  that  purpose,  is  incompetent  to  cede  her  political 
jurisdiction  and  legislative  authority  over  any  part  of  her  territory 
to  a  foreign  country,  without  the  concurrence  of  the  general  govern- 
ment. The  jurisdiction  of  the  United  States  extends  over  all  the 
territory  within  the  States,  and,  therefore,  their  authority  must  be 
obtained,  as  well  as  that  of  the  State  within  which  the  territory  is 
situated,  before  any  cession  of  sovereignty  or  political  jurisdiction 
can  be  made  to  a  foreign  country.  And  so  when  questions  arose  as 
to  the  northeastern  boundary,  in  Maine,  between  Great  Britain  and 
the  United  States,  and  negotiations  were  in  progress  for  a  treaty  to 
settle  the  boundary,  it  was  deemed  necessary  on  the  part  of  our 
government  to  secure  the  co-operation  and  concurrence  of  Maine, 
so  far  as  such  settlement  might  involve  a  cession  of  her  sovereignty 
and  jurisdiction  as  well  as  title  to  territory  claimed  by  her,  and  of 
Massachusetts,  so  far  as  it  might  involve  a  cession  of  title  to  lands 
held  by  her.  Both  Maine  and  Massachusetts  appointed  commis- 
sioners to  act  with  the  Secretary  of  State,  and  after  much  negotia- 
tion the  claims  of  the  two  States  were  adjusted,  and  the  disputed 
questions  of  boundary  settled.  The  commissioners  of  Maine  were 
appointed  by  her  legislature;  and  those  of  Mnssnchusetts  by  her 
governor  under  authority  of  an  act  of  her  legislature.  It  was  not 
deemed  necessary  to  call  a  convention  of  the  people  in  either  of 


540  THE    LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

tliein  to  give  to  the  comraissioners  the  requisite  authority  to  act 
etfectively  for  tlieir  respective  States.  5  Webster's  Works,  99; 
6  ib.  273. 

In  their  relation  to  the  general  government,  the  States  of  the 
Union  stand  in  a  very  different  position  from  that  which  they  hold 
to  foreign  governments.  Though  the  jurisdiction  and  authority  of 
the  general  government  are  essentially  different  from  those  of  the 
State,  they  are  not  those  of  a  different  country;  and  the  two,  the 
State  and  general  government,  may  deal  with  each  other  in  any 
way  they  may  deem  best  to  carry  out  the  purposes  of  the  Constitu- 
tion. It  is  for  the  protection  and  interests  of  the  States,  their 
people  and  property,  as  well  as  for  the  protection  and  interests  of 
the  people  generally  of  the  United  States,  that  forts,  arsenals,  and 
other  buildings  for  public  uses  are  constructed  within  the  States. 
As  instrumentalities  for  the  execution  of  the  powers  of  the  general 
government,  they  are,  as  already  said,  exempt  from  such  control  of 
the  States  as  would  defeat  or  impair  their  use  for  those  purposes ; 
and  if,  to  their  more  effective  use,  a  cession  of  legislative  authority 
and  political  jurisdiction  by  the  State  would  be  desirable,  we  do  not 
perceive  any  objection  to  its  grant  by  the  legislature  of  the  State. 
Such  cession  is  really  as  much  for  the  benefit  of  the  State  as  it  is 
for  the  benefit  of  the  United  States.  It  is  necessarily  temporary, 
to  be  exercised  only  so  long  as  the  places  continue  to  be  used  for 
the  public  purposes  for  which  the  property  was  acquired  or  reserved 
from  sale.  When  they  cease  to  be  thus  used,  the  jurisdiction 
reverts  to  the  State. 

The  Military  Eeservation  of  Fort  Leavenworth  was  not,  as 
already  said,  acquired  by  purchase  with  the  consent  of  Kansas. 
And  her  cession  of  jurisdiction  is  not  of  exclusive  legislative  author- 
ity over  the  land,  except  so  far  as  that  may  be  necessary  for  its 
use  as  a  military  post;  and  it  is  not  contended  that  the  saving 
clau?e  in  the  act  of  cession  interferes  with  such  use.  There  is, 
therefore,  no  constitutional  prohibition  against  the  enforcement  of 
that  clause.  The  right  of  the  State  to  subject  the  railroad  property 
to  taxation  exists  as  before  the  cession.  The  invalidity  of  the  tax 
levied  not  being  asserted  on  any  other  ground  than  the  supposed 
exclusive  jurisdiction  of  the  United  States  over  the  reservation 
notwithstanding  the  saving  clause,  the  judgment  of  the  court  below 
must  be  Affirmed. 


SECT.  XIV.]  UNITED   STATES    V.    GREATHOUSE.  641 


Section  XIV.  —  Treason. 


UNITED   STATES   v.  GREATHOUSE  and  Others. 

4  Sawyer,  457.     1863. 

Ox  the  fifteenth  day  of  March,  1863,  the  schooner  J.  31.  Chap- 
mcm  was  seized  in  the  harbor  of  Sau  Francisco,  by  the  United 
States  revenue  officers,  while  sailing,  or  about  to  sail,  on  a  cruise  in 
the  service  of  the  Confederate  States,  against  tlie  commerce  of  the 
United  States;  and  the  leaders  of  the  expedition,  consisting  of  Kidge- 
ley  Greathouse,  Asbury  Harpending,  Alfred  liubery,  William  C. 
Law,  Lorenzo  L,  Libby,  with  several  others,  were  indicted,  under  the 
act  of  Congress  of  July  17,  1862,  for  engaging  in,  and  giving  aid  and 
comfort  to,  the  then  existing  rebellion  against  the  government  of  the 
United  States. 

Field,  Circuit  Justice  (charging  jury). 

The  defendants  are  indicted  for  engaging  in,  and  giving  aid  and 
comfort  to,  the  existing  rebellion  against  the  government  of  the  United 
States.  The  indictment  is  framed  under  the  second  section  of  the 
act  of  Congress  of  July  17,  1862,  entitled  "  An  Act  to  suppress  insur- 
rection, to  punish  treason  and  rebellion,  to  seize  and  confiscate  the 
property  of  rebels,  and  for  other  purposes  ; "  and  it  charges  the 
commission  of  acts,  which,  in  the  judgment  of  the  court,  amount  to 
treason  within  the  meaning  of  the  Constitution.  Treason  is  the 
only  crime  defined  by  the  Constitution.  That  instrument  declares 
that  "  treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort."  The  clause  was  borrowed  from  an  ancient  English 
statute,  enacted  in  the  year  1352,  in  the  reign  of  Edward  III.,  com- 
monly known  as  the  statute  of  treasons.  Previous  to  the  passage 
of  that  statute  there  was  great  uncertainty  as  to  what  constituted 
treason.  Numerous  offences  were  raised^  to  its  grade  by  arbitrary 
constructions  of  the  law.  The  statute  was  passed  to  remove  this 
uncertainty,  and  to  restrain  the  power  of  the  crown  to  oppress  the 
subject  by  constructions  of  this  character.  It  comprehends  all 
treason  under  seven  distinct  branches.  The  framers  of  our  Constitu- 
tion selected  one  of  these  branches,  and  declared  that  treason  against 
the  United  States  should  be  restricted  to  the  acts  which  it  desig- 
nates. "  Treason  against  the  United  States,"  is  the  language 
adopted,  "shall  consist  only  in  levying  war  against  them,  or  adher- 
ing to  their  enemies,  giving  them  aid  and  comfort."     No  other  acts 


542  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV* 

can  be  declared  to  constitute  the  offense.  Congress  can  neither 
extend,  nor  restrict,  nor  define  the  crime.  Its  power  over  the  sub- 
ject is  limited  to  prescribing  the  punishment. 

At  the  time  the  Constitution  was  framed,  the  language  incorporated 
into  it,  from  the  English  statute,  had  received  judicial  construction, 
and  acquired  a  definite  meaning;  and  that  meaning  has  been  gen- 
erally adopted  by  the  courts  of  the  United  States.  Thus  Chief 
Justice  Marshall,  in  commenting  upon  the  term  "levying  war," 
says:  "It  is  a  technical  term.  It  is  used  in  a  very  old  statute  of 
that  country  whose  language  is  our  language,  and  whose  lav/s  form 
the  substratum  of  our  laws.  It  is  scarcely  conceivable  that  the 
term  was  not  employed  by  the  framers  of  our  Constitution  in  the 
sense  which  had  been  affixed  to  it  by  those  from  whom  we  borrowed 
it.  So  far  as  the  meaning  of  any  terms,  particularly  terms  of  art, 
is  completely  ascertained,  those  by  whom  they  are  employed  must  be 
considered  as  employing  them  in  that  ascertained  meaning,  unless  the 
contrary  be  proved  by  the  context.  It  is,  therefore,  reasonable  to 
suppose,  unless  it  be  incompatible  with  other  expressions  of  the 
Constitution,  that  the  term  '  levying  war'  is  used  in  that  instrument 
in  the  same  sense  in  which  it  was  understood,  in  England  and  in  this 
country,  to  have  been  used  in  statute  25  of  Edward  III.,  from  which 
it  is  borrowed." 

The  constitutional  provision,  as  you  perceive,  is  divided  into  two 
clauses,  "levying  war  against  the  United  States,"  and  "adhering  to 
their  enemies,  giving  them  aid  and  comfort."  The  term  "enemies," 
as  used  in  the  second  clause,  according  to  its  settled  meaning,  at  the 
time  the  Constitution  was  adopted,  applies  only  to  the  subjects  of 
a  foreign  power  in  a  state  of  open  hostility  with  us.  It  does  not 
embrace  rebels  in  insurrection  against  their  own  government.  An 
enemy  is  always  the  subject  of  a  foreign  power  Avho  owes  no  alle- 
giance to  our  government  or  country.  We  may,  therefore,  omit  all 
consideration  of  this  second  clause  in  the  constitutional  definition 
of  treason.  To  convict  the  defendants  they  must  be  brought  within 
the  first  clause  of  the  definition.  They  must  be  shown  to  have 
committed  acts  which  amount  to  a  levying  of  war  against  the  United 
States.  To  constitute  a  levying  of  war  there  must  be  an  assemblage 
of  persons  in  force,  to  overthrow  the  government,  or  to  coerce  its 
conduct.  The  words  embrace  not  only  those  acts  by  which  war  is 
brought  into  existence,  but  also  those  acts  by  which  war  is  prose- 
cuted. They  levy  war  who  create  or  carry  on  war.  The  offence  is 
complete,  whether  the  force  be  directed  to  the  entire  overthrow  of 
the  government  throughout  the  country,  or  only  in  certain  portions 
of  the  country,  or  to  defeat  the  execution  and  compel  the  repeal  of 
one  of  its  public  laws. 

It  is  not,  however,  necessary  that  I  should  go  into  any  close  defi- 
nition of  the  words  "  levying  war,"  for  it  is  not  sought  to  apply 
them  to  any  doubtful  case.     War  has  been  levied  against  the  United 


SECT.  XIV.]  UNITED   STATES    V.   GREATHOUSE.  543 

States.  War  of  gigantic  proportions  is  now  waged  against  them,  and 
the  government  is  struggling  with  it  for  its  life.  War  being  levied, 
all  who  aid  in  its  prosecution,  whether  by  open  hostilities  in  the 
field,  or  by  performing  any  part  in  the  furtherance  of  the  common 
object,  "however  minute  or  however  remote  from  tlie  scene  of 
action,"  are  equally  guilty  of  treason  within  the  constitutional 
provision.  In  treason  there  are  no  accessories ;  all  who  engage  in 
the  rebellion  at  any  stage  of  its  existence,  or  who  designedly  give  to 
it  any  species  of  aid  and  comfort,  in  whatever  part  of  the  country 
they  may  be,  stand  on  the  same  platform  ;  they  are  all  principals  in 
the  commission  of  the  crime  ;  they  are  all  levying  war  against  the 
United  States. 

In  Ex  parte  Bollman  and  Ex  parte  Swartwout,  4  Cranch,  127,  Mr. 
Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  Supreme 
Court  of  the  United  States,  said  :  "  It  is  not  the  intention  of  the 
court  to  say  that  no  individual  can  be  guilty  of  this  crime  who  has 
not  appeared  in  arms  against  his  country.  On  the  contrary,  if  war 
be  actually  levied  —  that  is,  if  a  body  of  men  be  actually  assembled 
for  the  purpose  of  effecting  by  force  a  treasonable  purpose,  all  those 
who  perform  any  part,  however  minute,  or  however  remote  from  the 
scene  6f  action,  and  who  are  actually  leagued  in  the  general  con- 
spiracy, are  to  be  considered  as  traitors."  And  in  commenting 
upon  this  language,  on  the  trial  of  Burr,  the  same  distinguished 
judge  said  :  "  According  to  the  opinion,  it  is  not  enough  to  be  leagued 
in  the  conspiracy,  and  that  war  be  levied,  but  it  is  also  necessary  to 
perform  a  part ;  that  part  is  the  act  of  levying  war.  That  part,  it  is 
true,  may  be  minute  ;  it  may  not  be  the  actual  appearance  in  arms, 
and  it  may  be  remote  from  the  scene  of  action,  that  is,  from  the 
place  where  the  army  is  assembled ;  but  it  must  be  a  part,  and  tliat 
part  must  be  performed  by  a  person  who  is  leagued  in  the  conspiracy. 
This  part,  however  minute  or  remote,  constitutes  the  overt  act,  of 
which  alone  the  person  who  performs  it  can  be  convicted."  2  Burr's 
Trial,  438-9.  The  indictment  in  the  present  case,  as  I  have  already 
stated,  is  based  upon  the  second  section  of  the  act  of  July  17,  1863. 
The  Constitution,  although  defining  treason,  leaves  to  Congress  the 
authority  to  prescribe  its  punishment.  In  1790,  Congress  passed 
an  act  fixing  to  the  offence  the  penalty  of  death.  By  the  first  section 
of  the  act  of  July,  1862,  Congress  gave  a  discretionary  power  to  the 
courts  to  inflict  the  penalty  of  death,  or  fine  and  imprisonment, 
providing  that  in  either  case  the  slaves  of  the  party  convicted,  if  any 
he  have,  shall  be  liberated.  The  second  section  of  the  act  declares 
"that  if  any  person  shall  hereafter  incite,  set  on  foot,  assist,  or 
engage  in  any  rebellion  or  insurrection  against  the  authority  of  the 
United  States,  or  the  laws  thereof,  or  shall  give  aid  or  comfort 
thereto,  or  shall  engage  in  or  give  aid  and  comfort  to  any  such 
existing  rebellion  or  insurrection,  and  be  convicted  thereof,  such 
person  shall  be  punished  by  imprisonment  for  a  period  not  exceed- 


544  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

ing  ten  years,  or  by  a  fine  not  exceeding  $10,000,  and  by  the  libera- 
tion of  all  his  slaves,  if  any  he  have,  or  by  both  said  punishments, 
at  the  discretion  of  the  court."  The  fourth  section  provides  that 
the  act  shall  not  be  construed  in  any  way  to  affect  or  alter  the 
prosecution,  conviction,  or  punishment  of  any  person  guilty  of  treason 
before  its  passage,  unless  convicted  under  the  act. 

There  would  seem,  upon  a  first  examination,  to  bean  inconsistency 
between  the  first  and  second  sections  of  this  act  —  the  first  section 
declaring  a  particular  punishment  for  treason,  and  the  second  declar- 
ing, for  acts  which  may  constitute  treason,  a  different  punishment. 
It  appears  from  the  debate  in  the  Senate  of  the  United  States,  when 
the  second  section  was  under  consideration,  that  it  was  the  opinion 
of  several  senators  that  the  commission  of  the  acts  which  it  desig- 
nates might,  under  some  circumstances,  constitute  an  offence  less 
than  treason.  The  Constitution,  as  you  have  seen,  declares  that 
"  treason  against  the  United  States  shall  consist  only  in  levying  war 
or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort." 
Eebels  not  being  enemies  within  its  meaning,  an  indictment  alleging 
the  giving  of  aid  and  comfort  to  them  had  been,  as  was  stated,  held 
defective.  But  if  such  ruling  had  been  made,  it  was  made,  we  may 
presume,  not  because  the  giving  of  aid  and  comfort  to  rebels  was 
not  treason,  but  because  the  parties  giving  such  aid  and  comfort  were 
equally  involved  in  guilt  with  those  in  open  hostilities  and  should 
have  been  indicted  for  levying  war ;  for  every  species  of  aid  and 
comfort  which,  if  given  to  a  foreign  enemy,  would  constitute  treason 
within  the  second  clause  of  the  constitutional  provision — adhering 
to  the  enemies  of  the  United  States  —  would,  if  given  to  the  rebels 
in  insurrection  against  the  government,  constitute  a  levying  of  war 
under  the  first  clause.  The  second  section  of  the  act,  however, 
relieves  the  subject  from  any  difficulty  so  far  as  the  form  of  the 
indictment  is  concerned.  It  is  not  necessary  now  to  use  specifically 
the  term  "  levying  war ; "  it  will  be  sufficient  if  the  indictment 
follows  the  language  of  the  act,  as  the  indictment  does  in  the  present 
case.  But  we  are  unable  to  conceive  of  any  act  designated  in  the 
second  section  which  would  not  constitute  treason,  except  perhaps  as 
suggested  by  my  associate,  that  of  inciting  to  a  rebellion.  If  we  lay 
aside  the  discussion  in  the  Senate,  and  read  the  several  sections  of  the 
act  together,  the  apparent  inconsistency  disappears.  Looking  at 
the  act  alone,  we  conclude  that  Congress  intended  :  1.  To  preserve  the 
act  of  1790,  which  prescribes  the  penalty  of  death,  in  force  for 
the  prosecution  and  punishment  of  offences  committed  previous  to 
July  17,  1862,  unless  the  parties  accused  are  convicted  under  the 
act  of  the  latter  date  for  subsequent  offences  ;  2.  To  punish  treason 
thereafter  committed  with  death,  or  fine  and  imprisonment,  in  the 
discretion  of  the  court,  unless  the  treason  consist  in  engaging  in  or 
assisting  a  rebellion  or  insurrection  against  the  authority  of  the 
United  States,  or  the  laws  thereof,  in  which  event  the  death  penalty 


SECT.  XIV.]  UNITED   STATES   V.   GREATHOUSE.  545 

is  to  be  abandoned,  and  a  less  penalty  inflicted.  By  this  construc- 
tion, the  apparent  inconsistency  in  the  provisions  of  the  different 
sections  is  avoided,  and  effect  given  to  each  clause  of  the  act.  The 
defendants  are  tlierefore  in  fact  on  trial  for  treason,  and  they  have 
had  all  the  protection^ and  privileges  allowed  to  parties  accused  of 
treason,  without  being  liable,  in  case  of  conviction,  to  the  penalty 
which  all  other  civilized  nations  have  awarded  to  this,  the  highest  of 
crimes  known  to  the  law. 

The  indictment  charges  that  on  the  sixteenth  of  March,  1803,  and 
long  before  and  since,  an  open  and  public  rebellion  by  certain  citizens 
of  the  United  States,  under  a  pretended  government  called  the  Con- 
federate States  of  America,  has  existed  against  the  United  States 
and  their  authority  and  laws  ;  that  the  defendants,  in  disregard  of 
their  allegiance  to  the  United  States,  did  on  that  day,  and  divers 
other  times  before  and  since,  at  the  city  of  San  Francisco,  "  mali- 
ciously and  traitorously  "  engage  in,  and  give  aid  and  comfort  to  the 
said  rebellion;  that  in  the  prosecution  and  execution  of  their  "trea- 
sonable and  traitorous  "  purposes,  they  procured,  prepared,  fitted  out, 
and  armed  a  schooner  called  the  J.  M.  Chapman^  then  lying  within 
the  port  of  San  Francisco,  with  the  intent  that  the  same  should  be 
employed  in  the  service  of  the  rebellion,  to  cruise  on  the  high  seas, 
and  commit  hostilities  upon  the  citizens,  property  and  vessels  of  the 
United  States  ;  and  that  they  entered  upon  the  said  schooner  and 
sailed  from  the  port  of  San  Francisco  upon  such  cruise  in  the  service 
of  said  rebellion.  In  otlier  words,  the  indictment  alleges  :  1.  The 
existence  of  a  rebellion  against  the  United  States,  their  authority 
and  laws  ;  2.  That  the  defendants  traitorously  engaged  in  and  gnve 
aid  and  comfort  to  the  same  ;  3.  That  in  the  execution  of  their 
treasonable  and  traitorous  purposes,  they  procured,  fitted  out,  and 
armed  a  vessel  to  cruise  in  the  service  of  the  rebellion  upon  the  high 
seas,  and  commit  hostilities  against  the  citizens,  property,  and  vessels 
of  the  United  States ;  4.  That  they  sailed  in  their  vessel  from  the 
port  of  San  Francisco  upon  such  cruise  in  the  service  of  the 
rebellion. 

The  existence  of  the  rebellion  is  a  matter  of  public  notoriet}^  and 
like  matters  of  general  and  public  concern  to  the  whole  country, 
may  be  taken  notice  of  by  judges  and  juries  without  that  particular 
proof  which  is  required  of  the  other  matters  charged.  The  public 
notoriety,  the  proclamations  of  the  President,  and  the  acts  of  Con- 
gress are  sufficient  proof  of  the  allegation  of  the  indictment  in  this 
respect.  The  same  notoriety  and  public  documents  are  also  sufficient 
proof  that  the  rebellion  is  organized  and  carried  on  under  a  pretended 
government,  called  the  Confederate  States  of  America. 

As  to  the  treasonable  purposes  of  the  defendants  there  is  no  con- 
flict in  the  evidence.  It  is  true  the  principal  witnesses  of  the 
government  are,  according  to  their  own  statements,  co-conspirators 
with  the  defendants  and  equally  involved  in  guilt  with  them,  if  guilt 


546  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

there  be  in  any  of  them.  But  their  testimony,  as  you  have  seen, 
has  been  corroborated  in  many  of  its  essential  details.  You  are, 
however,  the  exclusive  judges  of  its  credibility.  The  court  will  only 
say  to  you  that  there  is  no  rule  of  law  which  excludes  the  testimony 
of  an  accomplice,  or  prevents  you  from  giving  credence  to  it,  when 
it  has  been  corroborated  in  material  particulars.  Indeed,  gentlemen, 
I  have  not  been  able  to  perceive  from  the  argument  of  counsel  tliat 
the  truth  of  the  material  portions  of  their  testimony  has  been 
seriously  controverted. 

It  is  not  necessary  that  I  should  state  in  detail  the  evidence  pro- 
duced. I  do  not  propose  to  do  so.  It  is  suflicient  to  refer  to  its 
general  purport.  It  is  not  denied,  and  will  not  be  denied,  that  the 
evidence  tends  to  establish  that  Harpending  obtained  from  the 
president  of  the  so-called  Confederate  States  a  letter  of  marque  — 
a  commission  to  cruise  in  their  service  on  the  high  seas,  in  a  private 
armed  vessel,  and  commit  hostilities  against  the  citizens,  vessels,  and 
property  of  the  United  States ;  that  his  co-defendants  and  others 
entered  into  a  conspiracy  with  him  to  purchase,  and  fit  out,  and  arm  a 
vessel,  and  cruise  under  the  said  letter  of  marque,  in  the  service  of 
the  rebellion ;  that  in  pursuance  of  the  conspiracy  they  purchased 
the  schooner  J.  M.  Chapman  ;  that  they  purchased  cannon,  shells, 
and  ammunition,  and  the  means  usually  required  in  enterprises  of 
that  kind,  and  placed  them  on  board  the  vessel  ;  that  they  employed 
men  for  the  management  of  the  vessel ;  and  that,  when  everything 
was  in  readiness,  they  started  with  the  vessel  from  the  wharf,  with 
the  intention  to  sail  from  the  port  of  San  Francisco  on  the  arrival 
on  board  of  the  captain,  who  was  momentarily  expected.  Gentlemen, 
I  do  not  propose  to  say  anything  to  you  upon  the  much  disputed 
questions  whether  or  not  the  vessel  ever  did,  in  fact,  sail  from  the 
port  of  San  Francisco,  or  whether,  if  she  did  sail,  she  started  on  the 
hostile  expedition.  In  the  judgment  of  the  court  they  are  imma- 
terial, if  you  find  the  facts  to  be  what  I  have  said  the  evidence  tends 
to  establish. 

When  Harpending  received  the  letter  of  marque,  with  the  intention 
of  using  it,  if  such  be  the  case  (and  it  is  stated  by  one  of  the  wit- 
nesses that  he  represented  that  he  went  on  horseback  over  the  plains 
expressly  to  obtain  it),  he  became  leagued  with  the  insurgents  —  the 
conspiracy  between  him  and  the  chiefs  of  the  rebellion  was  complete ; 
it  was  a  conspiracy  to  commit  hostilities  on  the  high  seas  against 
the  United  States,  their  authority  and  laws.  If  the  other  defendants 
united  with  him  to  carry  out  the  hostile  expedition,  they,  too,  became 
leagued  with  him  and  the  insurgent  chiefs  in  Virginia  in  the  general 
conspiracy.  The  subsequent  purchasing  of  the  vessel,  and  the  guns, 
and  the  ammunition,  and  the  employment  of  the  men  to  manage  the 
vessel,  if  these  acts  were  done  in  furtherance  of  the  common  design, 
were  overt  acts  of  treason.  Together,  these  acts  complete  the  essen- 
tial charge  of  the  indictment.     In  doing  them,  the  defendants  were 


SECT.  XIV.]  UNITED   STATES    V.    GREATHOUSE.  647 

performing  a  part  in  aid  of  the  great  rebellion.     They  were  giving 
it  aid  and  comfort. 

It  is  not  essential  to  constitute  the  giving  of  aid  and  comfort  that 
the  enterprise  commenced  should  be  successful  and  actually  render 
assistance.  If,  for  example,  a  vessel  fully  equipped  and  armed  in 
the  service  of  the  rebellion  should  fail  in  its  attack  upon  one  of  our 
vessels  and  be  itself  captured,  no  assistance  would  in  truth  be 
rendered  to  the  rebellion;  but  yet,  in  judgment  of  law,  in  legal 
intent,  the  aid  and  comfort  would  be  given.  So  if  a  letter  containing 
important  intelligence  for  the  insurgents  be  forwarded,  the  aid  and 
comfort  are  given,  though  the  letter  be  intercepted  on  its  way.  Thus 
Foster,  in  his  treatise  on  Crown  Law,  says:  "  And  the  bare  sending 
money  or  provisions,  or  sending  intelligence  to  rebels  or  enemies, 
which  in  most  cases  is  the  most  effectual  aid  that  can  be  given  them, 
will  make  a  man  a  traitor,  though  the  money  or  intelligence  should 
happen  to  be  intercepted;  for  the  party  in  sending  it  did  all  he 
could ;  the  treason  was  complete  on  his  part,  though  it  had  not  the 
effect  he  intended." 

Wherever  overt  acts  have  been  committed  which,  in  their  natural 
consequence,  if  successful,  would  encourage  and  advance  the  interests 
of  the  rebellion,  in  judgment  of  law  aid  and  comfort  are  given. 
Wlietlier  aid  and  comfort  are  given  —  the  overt  acts  of  treason  being 
established  —  is  not  left  to  the  balancing  of  probabilities  —  it  is  a 
conclusion  of  law. 

If  the  defendants  obtained  a  letter  of  marque  from  the  president 
of  the  so-called  Confederate  States,  the  fact  does  not  exempt  them 
from  prosecution  in  the  tribunals  of  the  country  for  the  acts  charged 
in  the  indictment.  The  existence  of  civil  war,  and  the  application 
of  the  rules  of  law  to  particular  cases,  under  special  circumstances, 
do  not  imply  the  renunciation  or  waiver  by  the  Federal  government 
of  any  of  its  municipal  rights  as  sovereign  toward  the  citizens  of  the 
seceded  States. 

As  matter  of  policy  and  humanity,  the  government  of  the  United 
States  has  treated  the  citizens  of  the  so-called  Confederate  States, 
taken  in  open  hostilities,  as  prisoners  of  war,  and  has  thus  exempted 
them  from  trial  for  violation  of  its  municipal  laws.  But  the  courts 
have  no  such  dispensing  power  ;  they  can  only  enforce  the  laws  as 
they  find  them  upon  the  statute-book.  They  cannot  treat  any  new 
government  as  having  authority  to  issue  commissions  or  letters  of 
marque  which  will  afford  protection  to  its  citizens  until  the  legis- 
lative and  executive  departments  have  recognized  its  existence. 
The  judiciary  follows  the  political  department  of  the  government 
in  these  particulars.  By  that  department  the  rules  of  war  have 
been  applied  only  in  special  cases ;  and  notwithstanding  the  applica- 
tion, Congress  has  legislated  in  numerous  instances  for  the  punish- 
ment of  all  parties  engaged  in  or  rendering  assistance  in  any  way  to 
the  existing  rebellion.     The  law  under  which  the   defendants   are 


548  THE   LEGISLATIVE  DEPARTMENT.  [CHAP.  lY. 

indicted  was   passed   after  captives   in  war  had   been   treated  and 
exchanged  as  prisoners  of  war,  in  numerous  instances. 

But  even  if  full  belligerent  rights  had  been  conceded  to  the  Con- 
federate States,  such  rights  could  not  be  invoked  for  the  protection 
of  persons  entering  within  the  limits  of  States  which  have  never 
seceded,  and  secretly  getting  up  hostile  expeditions  against  our 
government  and  its  authority  and  laws.  The  local  and  temporary 
allegiance,  which  every  one  —  citizen  or  alien  —  owes  to  the  govern- 
ment under  which  he  at  the  time  lives,  is  sufficient  to  subject  him  to 
the  penalties  of  treason.^ 


Section  XV.  —  Non-enumerated  and  Implied  Powers. 


McCULLOCH   V.   MARYLAND. 

4  Wheaton,  316;  4  Curtis,  415.     1819. 

[See  page  1,  supra.1 


GIBBONS    V.   OGDEN. 

9  Wheaton,  1;  6  Curtis,  1.     1824. 

[See  page  235,  supra.'\ 


LEGAL  TENDER   CASE. 

110  United  States,  421.     1884. 

[See  page  442,  supraJ] 


ANDERSON  v.   DUNN. 
6  Wheaton,  204;  5  Curtis,  61.     1821. 

Error  to  the  Circuit  Court  of  the  District  of  Columbia. 

This  was  an  action  of  trespass,  brought  in  the  court  below,  by  the 
plaintiff  in  error  against  the  defendant  in  error,  for  an  assault  and 

1  The  charge  of  Hoffman,  District  Judge,  is  omitted.  The  defendants  were 
found  guilty  and  sentenced. 


SECT.  XV.]  ANDERSON    V.    DUNN.  549 

battery,  and  false  imprisonment;  to  wliicli  the  defendant  pleaded  the 
general  issue,  and  a  special  plea  of  justification.  The  plaintiff 
demurred  generally  to  the  special  plea,  which  was  adjudged  good, 
and  the  demurrer  overruled;  and  judgment  upon  such  demurrer  was 
entered  for  tlie  defendant,  and  a  writ  of  error  brought  by  the 
plaintiff. 

Johnson,  J.,  delivered  the  opinion  of  the  court. 

iS^'otwithstanding  the  range  which  has  been  taken  by  the  plaintiff's 
counsel,  in  the  discussion  of  this  cause,  the  merits  of  it  really  lie  in  a 
very  limited  compass.     The  pleadings  have  narrowed  them  down  toi 
the  simple  inquiry,  whether  the  House  of  Representatives  can  take 
cognizance  of  contempts  committed  against  themselves,  under   anyj 
circumstances?     The  duress  complained  of  was  sustained   under  aj 
warrant  issued  to  compel  the  party's  appearance,  not  for  the  actual! 
infliction  of  punishment  for  an  offence  committed.     Yet  it  cannot  be  | 
denied,  that  the  power  to  institute  a  prosecution  must  be  dependent ' 
upon  the  power  to  punish.    If  the  House  of  Representatives  possessed 
no  authority  to  punish  for  contempt,  the  initiating  process  issued  in 
the  assertion  of  that  authority  must  have  been  illegal ;  there  was  a 
want  of  jurisdiction  to  justify  it. 

It  is  certainly  true,  that  there  is  no  power  given  by  the  Constitu- 
tion to  either  House  to  punish  for  contempts,  except  when  committed 
by  their  own  members.  Nor  does  the  judicial  or  criminal  power 
given  to  the  United  States,  in  any  part,  expressly  extend  to  the 
infliction  of  punishment  for  contempt  of  either  House,  or  any  one 
co-ordinate  branch  of  the  government.  Shall  we,  therefore,  decide 
that  no  such  power  exists  ? 

It  is  true  that  such  a  power,  if  it  exists,  must  be  derived  from  im- 
plication, and  the  genius  and  spirit  of  our  institutions  are  hostile  to 
the  exercise  of  implied  powers.  Had  the  faculties  of  man  been  com- 
petent to  the  framing  of  a  system  of  government  which  would  have  ' 
left  nothing  to  implication,  it  cannot  be  doubted  that  the  effort  wouldi 
have  been  made  by  the  framers  of  the  Constitution.  But  what  is  the 
fact?  There  is  not  in  the  whole  of  that  admirable  instrument  a 
grant  of  powers  which  does  not  draw  after  it  others,  not  expressed, 
but  vital  to  their  exercise ;  not  substantive  and  independent,  indeed, 
but  auxiliary  and  subordinate. 

Tlie  idea  is  Utopian,  that  government  can  exist  without  leaving  the/ 
exercise  of  discretion  somewhere.  Public  security  against  the  abuse 
of  such  discretion  must  rest  on  responsibility,  and  stated  appeals  to 
public  approbation.  Where  all  power  is  derived  from  the  people,-  and 
public  functionaries,  at  short  intervals,  deposit  it  at  the  feet  of  the 
people,  to  be  resumed  again  only  at  their  will,  individual  fears  may 
be  alarmed  by  the  monsters  of  imagination,  but  individual  liberty 
can  be  in  little  danger. 

No  one  is  so  visionary  as  to  dispute  the  assertion,  that  the  sole 
end  and  aim  of  all  our  institutions  is  the  safety  and  happiness  of  the 


c 


550  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  IV. 

citizen.  But  the  relation  between  the  action  and  the  end  is  not 
always  so  direct  and  palpable  as  to  strike  the  eye  of  every  observer. 
The  science  of  government  is  the  most  abstruse  of  all  sciences  ;  if, 
indeed,  that  can  be  called  a  science  which  has  but  few  fixed  prin- 
ciples, and  practically  consists  in  little  more  than  the  exercise  of  a 
sound  discretion,  applied  to  the  exigencies  of  the  State  as  they  arise. 
it  is  tlie  science  of  experiment. 

But  if  there  is  one  maxim  which  necessarily  rides  over  all  others, 
in  the  practical  application  of  government,  it  is,  that  the  public  func- 
1  tionaries  must  be  left  at  liberty  to  exercise  the  powers  which  the 
people  have  intrusted  to  them.     The  interests  and  dignity  of  those 
/who  created  them  require  the  exertion  of  the  powers  indispensable 
I  to  the  attainment  of  the  ends  of  their  creation.     Nor  is  a  casual  con- 
flict with  the  rights  of  particular  individuals  any  reason  to  be  urged 
against   the   exercise    of    such    powers.      The    wretch    beneath   the 
f  gallows  may  repine  at  the  fate  which  awaits  him,  and  yet  it  is  no  less 
I  certain  that  the  laws  under  which  he  suffers  were  made  for  his  secu- 
'  rity.    The  unreasonable  murmurs  of  individuals  against  the  restraints 
of   society   have    a   direct   tendency   to    produce    that  worst   of   all 
despotisms,    which   makes    every   individual    the    tyrant    over  his 
neighbor's  rights. 

That  "  the  safety  of  the  people  is  the  supreme  law,"  not  only  com- 
ports with,  but  is  indispensable  to,  the  exercise  of  those  powers  in 
their  public  functionaries,  without  which  that  safety  cannot  be 
guarded.  On  this  principle  it  is  that  courts  of  justice  are  universally 
acknowledged  to  be  vested,  by  their  very  creation,  with  power  to 
impose  silence,  respect,  and  decorum,  in  their  presence,  and  submis- 
sion to  their  lawful  mandates,  and,  as  a  corollary  to  this  proposition, 
to  preserve  themselves  and  their  officers  from  the  approach  and  in- 
. suits  of  pollution. 

It  is  true  that  the  courts  of  justice  of  the  United  States  are  vested, 
by  express  statute  provision,  with  power  to  fine  and  imprison  for 
contempts;  but  it  does  not  follow,  from  this  circumstanoe,  that  they 
would  not  have  exercised  that  power  without  the  aid  of  the  statute, 
or  not  in  cases,  if  such  should  occur,  to  which  such  statute  provision 
may  not  extend  ;  on  the  contrary,  it  is  a  legislative  assertion  of  this 
right,  as  incidental  to  a  grant  of  judicial  power,  and  can  only  be  con- 
sidered either  as  an  instance  of  abundant  caution,  or  a  legislative 
declaration,  that  the  power  of  punishing  for  contempt  shall  not 
extend  beyond  its  known  and  acknowledged  limits  of  fine  and 
imprisonment. 

But  it  is  contended,  that  if  this  power  in  the  House  of  Representa- 
tives is  to  be  asserted  on  the  plea  of  necessity,  the  ground  is  too 
broad,  and  the  result  too  indefinite ;  that  the  executive,  and  every 
co-ordinate,  and  even  subordinate,  branch  of  the  government,  may 
resort  to  the  same  justification,  and  the  whole  assume  to  themselves, 
in  the  exercise  of  this  power,  the  most  tyrannical  licentiousness. 


SECT.  XV.]  ANDERSON   V.    DUNN.  551 

This  is,  unquestionably,  an  evil  to  be  guarded  against ;  and  if  the 
doctrine  may  be  pushed  to  that  extent,  it  must  be  a  bad  doctrine,  and 
is  justly  denounced. 

But  what  is  the  alternative  ?    The  argument  obviously  leads  to  the  i 
total  annihilation  of  the  power  of  the  House  of  Representatives  to 
guard  itself  from  contempts,  and  leaves  it  exposed  to  every  indignity 
and    interruption    that    rudeness,   caprice,   or   even    conspiracy   may ' 
meditate  against  it.     This  result  is  fraught  with  too  much  absurdity 
not  to  bring  into  doubt  the  soundness  of  any  argument  from  which 
it  is  derived.    That  a  deliberative  assembly,  clothed  with  the  majesty 
of  the  people,  and  charged  with  the  care  of  all  that  is  dear  to  them  ; 
composed  of  the  most  distinguished  citizens,  selected  and  drawn  to- 
gether from  every  quarter  of  a  great  nation  ;  whose  deliberations  are 
required  by  public   opinion  to  be  conducted  under  the  eye   of   the 
public,  and  whose  decisions  must  be  clothed  with  all  that  sanctity 
which  unlimited  confidence  in  their  wisdom  and  purity  can  inspire  ; 
that  such  an  assembly  should  not  possess  the  power  to  suppress  rude-/ 
ness,  or  repel  insult,  is  a  supposition  too  wild  to  be  suggested.     And, 
accordingly,  to  avoid  the  pressure  of  these  considerations,  it  has  been 
argued  that  the  right  of  the  respective  Houses  to  exclude  from  their  ' 
presence,  and  their  absolute  control  within  their  own  walls,  carry  -* 
with  them  the  right  to  punish  contempts  committed  in  their  pres-| 
ence ;  while  the  absolute  legislative  power  given  to  Congress,  within 
this  district,  enables  them  to  provide  by  law  against  all  other  insults 
against  which  there  is  any  necessity  for  providing. 

It  is  to  be  observed,  that  so  far  as  the  issue  of  this  cause  is  impli- 
cated, this  argument  yields  all  right  of  the  plaintiff   in  error  to  a 
decision  in  his  favor ;  for,  non  constat,  from  the  pleadings,  but  that 
this    warrant   issued   for   an   offence   committed   in   the   immediate  j 
presence  of  the  House. 

Nor  is  it  immaterial  to  notice  what  difficulties  the  negation  of  this 
right  in  the  House  of  Representatives  draws  after  it,  when  it  is  con- 
sidered that  the  concession  of  the  power,  if  exercised  within  their 
walls,  relinquishes  the  great  grounds  of  the  argument,  to  wit,  tho 
want  of  an  express  grant,  and  the  unrestricted  and  undefined  nature 
of  the  power  here  set  up.  For  why  should  the  House  be  at  liberty  to 
exercise  an  ungranted,  and  unlimited,  and  undefined  power  within 
their  walls,  any  more  than  without  them  ?  If  the  analogy  with  in- 
dividual right  and  power  be  resorted  to,  it  will  reach  no  further  than 
to  exclusion,  and  it  requires  no  exuberance  of  imagination  to  exhibit 
the  ridiculous  consequences  which  might  result  from  such  a  restric- 
tion, imposed  upon  the  conduct  of  a  deliberative  assembly. 

Kor  would  their  situation  be  materially  relieved  b}'  resorting  to 
their  legislative  power  within  the  district.  That  power  may,  indeed, 
be  applied  to  many  purposes,  and  was  intended  by  the  Constitution 
to  extend  to  many  purposes  indispensable  to  the  security  and  dignity 
of  the  general  government;  but  they  are  purposes  of  a  more  grave 


552  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

and  general  character  than  the  offences  which  may  be  denominated 
contempts,  and  which,  from  their  very  nature,  admit  of  no  precise 
definition.  Judicial  gravity  will  not  admit  of  the  illustrations  which 
this  remark  would  admit  of.  Its  correctness  is  easily  tested  by  pur- 
I  suing,  in  imagination,  a  legislative  attempt  at  defining  the  cases  to 
(  which  the  epithet  "  contempt "  might  be  reasonably  applied. 

But  it  is  argued  that  the  inference,  if  any,  arising  under  the  Con- 
stitution, is  against  the  exercise  of  the  powers  here  asserted  by  the 
^     House  of  Kepresentatives ;  that  the  express  grant  of  power  to  pun- 
^^    ish  their  members  respectively,  and  to  expel  them,  by  the  application 
of  a   familiar   maxim,  raises   an   implication  against  the  power  to 
punish  any  other  than  their  own  members. 

>X  This  argument  proves  too  much ;  for  its  direct  application  would 
/lead   to  the  annihilation  of   almost  every  power  of   Congress.     To 
[  enforce  its  laws  upon  any  subject  without  the  sanction  of  punish- 
l  ment  is   obviously  impossible.     Yet   there   is  an   express  grant  of 
y  power  to  punish  in  one  class  of  cases,  and  one  only  ;  and  all  the  pun- 
1   ishing  power  exercised  by  Congress  in  any  cases,  except  those  which 
/    relate  to  piracy  and  offences  against  the  laws  of  nations,  is  derived 
/    from  implication.    Nor  did  the  idea  ever  occur  to  any  one,  that  the 
I    express  grant  in  one  class  of  cases  repelled  the  assumption  of  the 
*    punishing  power  in  any  other. 
V     The  truth  is,  that  the  exercise  of  the  powers  given  over  their  own 
/members,  was  of  such  a  delicate  nature  that  a  constitutional  pro- 
vision became  necessary  to  assert  or  communicate  it.     Constituted  as 
I  that  body  is,  of  the  delegates  of  confederated  States,  some  such  pro- 
I  vision  was  necessary  to  guard  against  their  mutual  jealousy,  since 
every  proceeding  against  a  representative  would  indirectly  affect  the 
honor  or  interests  of  the  State  which  sent  him. 
^     In  reply  to  the  suggestion  that  on  this  same  foundation  of  neces- 
sity might  be  raised  a  superstructure  of  implied  powers  in  the  execu- 
tive, and  every  other  department,  and  even  ministerial  officer  of  the 
government,  it  would  be  sufficient  to  observe,  that  neither  analogy 
(hot  precedent  would  support  the  assertion   of  such  powers  in  any 
\ other  t,hn.ii_j,  Ipcrislativft  nr  jpdicial  body^.     Even  corruption  anywhere 
else  would  not  contaminate  the  source  of  political  life.    In  the  retire- 
ment of  the  cabinet,  it  is  not  expected  that  the  executive   can  be 
'  approached  by  indignity  or  insult ;  nor  can  it  ever  be  necessary  to 
'  the  executive,  or  any  other  department,  to  hold  a  public  deliberative 
/  assembly.     These  are  not  arguments  ;   they  are  visions  which  mar 
the  enjoyment  of  actual   blessings  with  the  attack  or  feint  of  the 
harpies  of  imagination. 

As  to  the  minor  points  made  in  this  case,  it  is  only  necessary  to 

observe,  that  there  is  nothing  on  the  face  of  this  record  from  which 

"*  it  can  appear  on  what  evidence  this  warrant  was  issued.     And  we 

are  not  to  presume  that  the  House  of  Representatives  would  have 


SECT.  XV.]  KILBOURN   V.   THOMPSON.  653 

issued  it  without  duly  establishing  the  fact  charged  on  the  indi-  / 
vidual.     And,  as  to  the  distance  to  which  the  process  might  reacn,  it. 
is  very  clear  that  there  exists  no  reason  for  confining  its  operation  to 
the  limits  of  the  District  of  Columbia;  after  passing  those  limits,  we 
know  no  bounds  that  can  be  prescribed  to  its  range  but  those  of  the 
United  States.    And  why  should  it  be  restricted  to  other  boundaries  ? 
Such  are  the  limits  of  the  legislating  powers  of  that  body ;  and  the 
inhabitant  of  Louisiana  or  Maine  may  as  probably  charge  them  with 
bribery  and  corruption,  or  attempt,  by  letter,  to  induce  the  commis- 
sion of  either,  as  the  inhabitant  of  any  other  section  of  the  Union. 
If  the  inconvenience  be  urged,  the  reply  is  obvious  ;  there  is  no  difii-' 
culty  in  observing  that  respectful  deportment  which  will  render  all , 
apprehension  chimerical.  Judgment  affirmed} 

1  In  the  case  of  Kilbourn  v.  Thompson,  103  U.  S.  168  (1880),  the  scope  of  the  de- 
cision in  Anderson  v.  Dunn  is  somewhat  limited.  Referring  to  tiiat  case  iVlK.  Justice 
Miller,  delivering  the  opinion  of  the  court,  uses  tliis  language:  — 

"  It  may  be  said  that  since  the  order  of  the  House,  and  the  warrant  of  the  speaker, 
and  the  plea  of  the  sergeant-at-arms,  do  not  disclose  the  ground  on  which  the  plaintiff 
was  held  guilty  of  a  contempt,  but  state  tlie  finding  of  the  House  in  general  terms  as 
a  judgment  of  guilty,  and  as  the  court  placed  its  decision  on  the  ground  that  such  a 
judgment  was  conclusive  in  the  action  against  the  officer  who  executed  the  warrant,  it 
is  no  precedent  for  a  case  where  the  plea  establishes,  as  we  iiave  shown  it  does  in  this 
case  by  its  recital  of  the  facts,  that  the  House  has  exceeded  its  authority. 

"This  is,  in  fact,  a  substantial  difference.  But  the  court  in  its  reasoning  goes 
beyond  this,  and  though  the  grounds  of  the  decision  are  not  very  clearly  stated,  we 
take  them  to  be :  that  there  is  in  some  cases  a  power  in  each  House  of  Congress  to 
pnnisli  for  contempt ;  that  this  power  is  analogous  to  that  exercised  by  courts  of 
justice,  and  that  it  being  the  well-established  doctrine  that  when  it  appears  that  a 
prisoner  is  held  under  the  order  of  a  court  of  general  jurisdiction  for  a  contempt  of 
its  authority,  no  other  court  will  discharge  the  prisoner  or  make  further  inquiry  into 
the  cause  of  his  commitment.  That  this  is  the  general  rule,  though  somewhat  modi- 
fied since  that  case  was  decided,  as  regards  the  relations  of  one  court  to  another,  must 
be  conceded. 

"  But  we  do  not  concede  that  the  Houses  of  Congress  possess  this  general  power  of 
punisliing  for  contempt.  The  cases  in  which  they  can  do  this  are  very  limited,  as  we 
have  already  attempted  to  show.  If  they  are  proceeding  in  a  matter  beyond  their 
legitimate  cognizance,  we  are  of  opinion  that  this  can  be  shown,  and  we  cannot  give 
our  assent  to  the  principle  that,  by  the  mere  act  of  asserting  a  person  to  be  guilty  of  a 
contempt,  they  thereby  establish  their  riglit  to  fine  and  imprison  him,  beyond  the 
power  of  any  court  or  any  other  tribunal  whatever  to  inquire  into  the  grounds  on 
which  the  order  was  made.  This  necessarily  grows  out  of  the  nature  of  an  autliority 
which  can  only  exist  in  a  limited  class  of  cases,  or  under  special  circumstances ; 
otherwise  the  limitation  is  unavailing  and  the  power  omnipotent.  The  tendency  of 
modern  decisions  everywhere  is  to  the  doctrine  that  the  jurisdiction  of  a  court  or 
otiier  tribunal  to  render  a  judgment  affecting  individual  rights,  is  always  open  to 
inquiry,  when  the  judgment  is  relied  on  in  any  other  procce<ling.  See  Williamson  v. 
Berry,  8  How.  495  ;  Thompson  v.  Whitman,  18  Wall.  457  ;  Knowles  v.  The  Gas-Light 
&  Coke  Co.,  19  id.  58 ;  Peuuoyer  v.  Neff,  95  U.  S.  714." 


C5. 


^ 


004  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  17. 

Ex    PARTE    CURTIS. 
106  United  States,  371.     1882. 

Petition  for  a  writ  of  habeas  corpus. 

lu  the  act  of  Aug.  15,  1876,  making  appropriations  for  the  legisla- 
tive, executive,  and  judicial  expenses  of  the  government  (c.  287,  19 
Stat.  143),  the  following  appears  as  section  six :  "  That  all  executive 
officers  or  employes  of  the  United  States  not  appointed  by  the  Presi- 
dent, with  the  advice  and  consent  of  the  Senate,  are  prohibited  from 
requesting,  giving  to,  or  receiving  from,  any  other  officer  or  employe 
of  the  government,  any  money  or  property  or  other  thing  of  value  for 
political  purposes ;  and  any  such  officer  or  employe  who  shall  offend 
against  the  provisions  of  this  section,  shall  be  at  once  discharged  from 
the  service  of  the  United  States ;  and  he  shall  also  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction  thereof  shall  be  fined  in  a  sum 
not  exceeding  five  hundred  dollars." 

Curtis,  the  petitioner,  an  employe  of  the  United  States,  was  in- 
dicted in  the  Circuit  Court  for  the  Southern  District  of  New  York, 
and  convicted  under  this  act  for  receiving  money  for  political  pur- 
poses from  other  employes  of  the  government.  Upon  his  conviction 
he  was  sentenced  to  pay  a  fine,  and  stand  committed  until  payment 
was  made.  Under  this  sentence  he  was  taken  into  custod}'  by  the 
marshal,  and  on  his  application  a  writ  of  habeas  cotpus  was  issued  by 
one  of  the  justices  of  this  court  in  vacation,  returnable  here  at  the 
present  term,  to  inquire  into  the  validity  of  his  detention.  The  im- 
portant question  presented  on  the  return  to  the  writ  so  issued  is 
whether  the  act  under  which  the  conviction  was  had  is  constitutional. 

Mr.  Chief  Justice  Waite,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  act  is  not  one  to  prohibit  all  contributions  of  money  or  prop- 
erty by  the  designated  officers  and  employes  of  the  United  States 
for  political  purposes.  Neither  does  it  prohibit  them  altogether  from 
receiving  or  soliciting  money  or  property  for  such  purposes.  It  sim- 
ply forbids  their  receiving  from  or  giving  to  each  other.  Beyond  this 
no  restrictions  are  placed  on  any  of  their  political  privileges. 

That  the  government  of  the  United  States  is  one  of  delegated 
powers  only,  and  that  its  authority  is  defined  and  limited  by  the  Con- 
stitution, are  no  longer  open  questions  ;  but  express  authority  is 
given  Congress  by  the  Constitution  to  make  all  laws  necessary  and 
proper  to  carry  into  effect  the  powers  that  are  delegated.  Art.  1, 
sect.  8.  Within  the  legitimate  scope  of  this  grant  Congress  is  per- 
mitted to  determine  for  itself  what  is  necessary  and  what  is  proper. 

The  act  now  in  question  is  one  regulating  in  some  particulars  the 
conduct  of  certain  officers  and  employes  of  the  United  States.  It 
rests  on  the  same  principle  as  that  originally  passed  in  1789  at  the 


SECT.  XV.]  EX   PARTE   CURTIS.  655 

first  session  of  tlie  first  Congress,  which  makes  it  unlawful  for  certain 
officers  of  the  Treasury  Department  to  engage  in  the  business  of  trade 
or  commerce,  or  to  own  a  sea  vessel,  or  to  purchase  public  lands  or 
other  public  property,,  or  to  be  concerned  in  tlie  purchase  or  disposal 
of  the  public  securities  of  a  State,  or  of  the  United  States  (Kev.  Stat., 
sect.  243) ;  and  that  passed  in  1791,  which  makes  it  an  offence  for  a 
clerk  in  the  same  department  to  carry  on  trade  or  business  in  the 
funds  or  debts  of  the  States  or  of  the  United  States,  or  in  any  kind 
of  public  property  (id.,  sect.  244)  ;  and  that  passed  in  1812,  which 
makes  it  unlawful  for  a  judge  appointed  under  the  authority  of  the 
United  States  to  exercise  the  profession  of  counsel  or  attorney,  or  to 
be  engaged  in  the  practice  of  the  law  (id.,  sect.  713)  ;  and  that  passed 
in  1853,  which  prohibits  every  officer  of  the  United  States  or  person 
holding  any  place  of  trust  or  profit,  or  discharging  any  official  func- 
tion under  or  in  connection  with  any  executive  department  of  the 
government  of  the  United  States,  or  under  the  Senate  or  House  of 
Representatives,  from  acting  as  an  agent  or  attorney  for  the  prosecu- 
tion of  any  claim  against  the  United  States  (id.,  sect.  5498)  ;  and 
that  passed  in  1863,  prohibiting  members  of  Congress  from  practising 
in  the  Court  of  Claims  (id.,  sect.  1058);  and  that  passed  in  1867, 
punishing,  by  dismissal  from  service,  an  officer  or  employe  of  the 
government  who  requires  or  requests  any  workingman  in  a  navy-yard 
to  contribute  or  pay  any  money  for  political  purposes  (id.,  sect. 
1546)  ;  and  that  passed  in  1868,  prohibiting  members  of  Congress 
from  being  interested  in  contracts  with  the  United  States  (id.,  sect. 
3739)  ;  and  another,  passed  in  1870,  which  provides  that  no  officer, 
clerk,  or  employe  in  the  government  of  the  United  States  shall  so- 
licit contributions  from  other  officers,  clerks,  or  employes  for  a  gift 
to  those  in  a  superior  officer  position,  and  that  no  officials  or  clerical 
superiors  shall  receive  any  gift  or  present  as  a  contribution  to  them 
from  persons  in  government  employ  getting  a  less  salary  than  them- 
selves, and  that  no  official  or  clerk  shall  make  a  donation  as  a  gift  or 
present  to  any  official  superior  (id.,  sect.  1784).  Many  others  of  a 
kindred  character  miglit  be  referred  to,  but  these  are  enough  to  show 
what  has  been  the  practice  in  the  Legislative  Department  of  the  gov- 
ernment from  its  organization,  and,  so  far  as  we  know,  this  is  the 
first  time  the  constitutionality  of  such  legislation  has  ever  been  pre- 
sented for  judicial  determination. 

The  evident  purpose  of  Congress  in  all  this  class  of  enactments  has 
been  to  promote  efficiency  and  integrity  in  the  discharge  of  official 
duties,  and  to  maintain  proper  discipline  in  the  public  service. 
Clearly  such  a  purpose  is  within  the  just  scope  of  legislative  power, 
and  it  is  not  easy  to  see  why  the  act  now  under  consideration  does 
not  come  fairly  within  the  legitimate  means  to  such  an  end.  It  is 
true,  as  is  claimed  by  the  counsel  for  the  petitioner,  political  assess- 
ments upon  office-holders  are  not  prohibited.  The  managers  of 
political  campaigns,  not  in  the  employ  of  the  United  States,  are  just 


556  ■  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

as  free  now  to  call  on  those  in  office  for  money  to  be  used  for  political 
purposes  as  ever  they  were,  and  those  in  office  can  contribute  as  lib- 
erally as  they  please,  provided  their  payments  are  not  made  to  any 
of  the  prohibited  officers  or  employes.  What  we  are  now  considering 
is  not  whether  Congress  has  gone  as  far  as  it  may,  but  whether  that 
■which  has  been  done  is  within  the  constitutional  limits  upon  its  legis- 
lative discretion. 

A  feeling  of  independence  under  the  law  conduces  to  faithful  pub- 
lic service,  and  nothing  tends  more  to  take  away  this  feeling  than  a 
dread  of  dismissal.  If  contributions  from  those  in  public  employ- 
ment may  be  solicited  by  others  in  official  authority,  it  is  easy  to  see 
that  v>rhat  begins  as  a  request  may  end  as  a  demand,  and  that  a 
failure  to  meet  the  demand  may  be  treated  by  those  having  the  power 
of  removal  as  a  breach  of  some  supposed  duty,  growing  out  of  the 
political  relations  of  the  parties.  Contributions  secured  under  such 
circumstances  will  quite  as  likely  be  made  to  avoid  the  consequences 
of  the  personal  displeasure  of  a  superior,  as  to  promote  the  political 
views  of  the  contributor,  —  to  avoid  a  discharge  from  service,  not  to 
exercise  a  political  privilege.  The  law  contemplates  no  restrictions 
upon  either  giving  or  receiving,  except  so  far  as  may  be  necessary  to 
protect,  in  some  degree,  those  in  the  public  service  against  exactions 
through  fear  of  personal  loss.  This  purpose  of  the  restriction,  and 
the  principle  on  which  it  rests,  are  most  distinctly  manifested  in 
sect.  1546,  siqyra,  the  re-enactment  in  the  Revised  Statutes  of  sect.  3 
of  the  act  of  June  30,  1868,  c.  172,  which  subjected  an  officer  or  em- 
ploye of  the  government  to  dismissal  if  he  required  or  requested  a 
workingman  in  a  navy-yard  to  contribute  or  pay  any  money  for 
political  purposes,  and  prohibited  the  removal  or  discharge  of  a  work- 
ingman for  his  political  opinions  ;  and  in  sect.  1784,  the  re-enactment 
of  the  act  of  Feb.  1,  1870,  c.  63,  •''  to  protect  officials  in  public  em- 
ploy," by  providing  for  the  summary  discharge  of  those  who  make  or 
solicit  contributions  for  presents  to  superior  officers.  No  one  can  for 
a  moment  doubt  that  in  both  these  statutes  the  object  was  to  protect 
the  classes  of  officials  and  employes  provided  for  from  being  com- 
pelled to  make  contributions  for  such  purposes  through  fear  of 
dismissal  if  they  refused.  It  is  true  that  dismissal  from  service  is 
the  only  penalty  imposed,  but  this  penalty  is  given  for  doing  what 
is  made  a  wrongful  act.  If  it  is  constitutional  to  prohibit  the  act, 
the  kind  or  degree  of  punishment  to  be  inflicted  for  disregarding  the 
prohibition  is  clearly  within  the  discretion  of  Congress,  provided  it 
be  not  cruel  or  unusual. 

If  there  were  no  other  reasons  for  legislation  of  this  character  than 
such  as  relate  to  the  protection  of  those  in  the  public  service  against 
unjust  exactions,  its  constitutionality  would,  in  our  opinion,  be  clear; 
but  there  are  others,  to  our  minds,  equally  good.  If  persons  in  pub- 
lic employ  may  be  called  on  by  those  in  authority  to  contribute  from 
their  personal  income  to  the  expenses  of  political  campaigns,  and  a 


SECT. 


XV,]  LOGAN    V.    UNITED   STATES.  557 


refusal  may  lead  to  putting  good  men  out  of  the  service,  liberal  pay- 
ments may  be  made  the  ground  for  keeping  poor  ones  in.  So,  too,  if 
a  part  of  the  compensation  received  for  public  services  must  be  con- 
tributed for  political  purposes,  it  is  easy  to  see  that  an  increase  of 
compensation  may  be  required  to  provide  the  means  to  make  the 
contribution,  and  that  in  this  way  the  government  itself  may  be  made 
to  furnish  indirectly  the  money  to  defray  the  expenses  of  keeping  the 
political  party  in  power  that  happens  to  have  for  the  time  being  the 
control  of  the  public  patronage.  Political  parties  must  almost  neces- 
sarily exist  under  a  republican  form  of  government ;  and  when  public 
employment  depends  to  any  considerable  extent  on  party  success, 
those  in  office  will  naturally  be  desirous  of  keeping  the  party  to  which 
they  belong  in  power.  The  statute  we  are  now  considering  does  not 
interfere  with  this.  The  apparent  end  of  Congress  will  be  accom- 
plished if  it  prevents  those  in  power  from  requiring  help  for  such 
purposes  as  a  condition  to  continued  employment. 

We  deem  it  unnecessary  to  pursue  the  subject  further.  In  our 
opinion  the  statute  under  which  the  petitioner  was  convicted  is  con- 
stitutional. The  other  objections  which  have  been  urged  to  the 
detention  cannot  be  considered  in  this  form  of  proceeding.  Our  in- 
quiries in  this  class  of  cases  are  limited  to  such  objections  as  relate 
to  the  authority  of  the  court  to  render  the  judgment  by  which  the 
prisoner  is  held.  We  have  no  general  power  to  review  tho  judgments 
of  the  inferior  courts  of  the  United  States  in  criminal  cases,  by  the 
use  of  the  writ  of  habeas  corpus  or  otherwise.  Our  jurisdiction  is 
limited  to  the  single  question  of  the  power  of  the  court  to  commit  the 
prisoner  for  the  act  of  which  he  has  been  convicted.  Ex  parte  Lange, 
18  Wall.  163;  Ex  parte  Rowland,  104  U.  S.  604. 

The  commitment  in  this  case  was  lawful,  and  the  petitioner  is, 
consequently. 

Remanded  to  the  custody  of  the  marshal  for  the  Southern  District 
of  New  York} 


LOGAN  V.  UNITED  STATES. 
144  United  States,  263.     1892. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error  were  indicted  on  sections  5508  and  5509  of 
the  Revised  Statutes,  for  conspiracy,  and  for  murder  in  the  prosecu- 
tion of  the  conspiracy ;  and  were  convicted,  under  section  5508,  of  a 
conspiracy  to  injure  and  oppress  citizens  of  the  United  States  in  the 
free  exercise  and  enjoyment  of  the  right  to  be  secure  from  assault  or 

1  Mr.  Justice  Bradlbt  delivered  a  dissenting  opinion, 


558  THE    LEGISLATIVE    DEPARTMENT.  [CHAP.  17. 

bodily  harm,  and  to  be  protected  against  unlawful  violence,  while  in 
the  custody  of  a  marshal  of  the  United  States  under  a  lawful  com- 
mitment by  a  commissioner  of  the  Circuit  Court  of  the  United  States 
for  trial  for  an  offence  against  the  laws  of  the  United  States. 

By  section  5508  of  the  Revised  Statutes,  "  if  two  or  more  persons 
conspire  to  injure,  oppress,  threaten,  or  intimidate  any  citizen  in  the 
free  exercise  or  enjoyment  of  any  right  or  privilege  secured  to  him 
by  the  Constitution  or  laws  of  the  United  States,  or  because  of  his 
having  so  exercised  the  same,"  "they  shall  be  fined  not  more  than, 
live  thousand  dollars  and  imprisoned  not  more  than  ten  years,  and 
shall,  moreover,  be  thereafter  ineligible  to  any  office  or  place  of 
honor,  profit,  or  trust,  created  by  the  Constitution  or  laws  of  the 
United  States." 

1.  The  principal  question  in  this  case  is  whether  the  right  of  a 
citizen  of  the  United  States,  in  the  custody  of  a  United  States 
marshal  under  a  lawful  commitment  to  answer  for  an  offence  against 
the  United  States,  to  be  protected  against  lawless  violence,  is  a  right 
secured  to  him  by  the  Constitution  or  laws  of  the  United  States,  or 
whether  it  is  a  right  which  can  be  vindicated  only  under  the  laws  of 
the  several  States. 

This  question  is  presented  by  the  record  in  several  forms.  It  was 
raised  in  the  first  instance  by  the  defendants  '"excepting  to"  and 
moving  to  quash  the  indictment.  A  motion  to  quash  an  indictment 
is  ordinarily  addressed  to  the  discretion  of  the  court,  and  therefore 
a  refusal  to  quash  cannot  generally  be  assigned  for  error.  United 
States  V.  Rosenburgh,  7  Wall.  580;  United  States  v.  Hamilton,  109 
U.  S.  63.  But  the  motion  in  this  case  appears  to  have  been  intended 
and  understood  to  include  an  exception,  which,  according  to  the  prac- 
tice in  Louisiana  and  Texas,  is  equivalent  to  a  demurrer.  And  the 
same  question  is  distinctly  presented  by  the  judge's  refusal  to  in- 
struct the  jury  as  requested,  and  by  the  instructions  given  by  him  to 
the  jury. 

Upon  this  question,  the  court  has  no  doubt.  As  was  said  by  Chief 
Justice  Marshall,  in  the  great  case  of  McCulloch  v.  Maryland, 
"The  government  of  the  Union,  though  limited  in  its  powers,  13 
supreme  within  its  sphere  of  action."  "No  trace  is  to  be  found  in 
the  Constitution  of  an  intention  to  create  a  dependence  of  the  gov- 
ernment of  the  Union  on  those  of  the  States,  for  the  execution  of  the 
great  powers  assigned  to  it.  Its  means  are  adequate  to  its  ends ; 
and  on  those  means  alone  was  it  expected  to  rely  for  the  accomplish- 
ment of  its  ends.  To  impose  on  it  the  necessity  of  resorting  to 
means  which  it  cannot  control,  which  another  government  may  fur- 
nish or  withhold,  would  render  its  course  precarious,  the  result  of 
its  measures  uncertain,  and  create  a  dependence  on  other  govern- 
ments, which  might  disappoint  its  most  important  designs,  and  is 
incompatible  with  the  language  of  the  Constitution."  4  Wheat.  316, 
405,  424. 


"SECT.  XV.]  LOGAN    V.    UNITED    STATES.  559 

Among  the  powers  which  the  Constitution  expressly  confers  upon 
Congress  is  the  power  to  nicake  all  laws  necessary  and  proper  tor 
carrying  into  execution  the  powers  specifically  granted  to  it,  and  all 
other  powers  vested  by  the  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof.  In  the  exer- 
cise of  this  general  power  of  legislation,  Congress  may  use  any 
means,  appearing  to  it  most  eligible  and  appropriate,  which  are 
adapted  to  the  end  to  be  accomplished,  and  are  consistent  with  the 
letter  and  the  spirit  of  the  Constitution.  McCulloch  v.  Maryland, 
4  Wheat.  316,  421;  Juilliard  v.  Greenman,  110  U.  S.  421,  440,  441. 

Although  the  Constitution  contains  no  grant,  general  or  specific, 
to  Congress  of  the  power  to  provide  for  the  punishment  of  crimes, 
except  piracies  and  felonies  on  the  high  seas,  offences  against  the 
law  of  nations,  treason,  and  counterfeiting  the  securities  and  current 
coin  of  the  United  States,  no  one  doubts  the  power  of  Congress  to 
provide  for  the  punishment  of  all  crimes  and  offences  against  the 
United  States,  whether  committed  within  one  of  the  States  of  the 
Union,  or  within  territory  over  which  Congress  has  plenary  and 
exclusive  jurisdiction. 

To  accomplish  this  end.  Congress  has  the  right  to  enact  laws  for 
the  arrest  and  commitment  of  those  accused  of  any  such  crime  or 
offence,  and  for  holding  them  in  safe  custody  until  indictment  and 
trial ;  and  persons  arrested  and  held  pursuant  to  such  laws  are  iu 
the  exclusive  custody  of  the  United  States,  and  are  not  subject  to 
the  judicial  process  or  executive  warrant  of  any  State.  Ableman  v. 
Booth,  21  How.  506;  Tarble's  Case,  13  Wall.  397;  Robb  v.  Con- 
nolly, 111  U.  S.  624.  The  United  States,  having  the  absolute  right 
to  hold  such  prisoners,  have  an  equal  duty  to  protect  them,  while  so 
held,  against  assault  or  injury  from  any  quarter.  The  existence  of 
that  duty  on  the  part  of  the  government  necessarily  implies  a  cor- 
responding right  of  the  prisoners  to  be  so  protected;  and  this  right 
of  the  prisoners  is  a  right  secured  to  them  by  the  Constitution  and 
laws  of  the  United  States. 

The  statutes  of  the  United  States  have  provided  that  any  person 
accused  of  a  crime  or  offence  against  the  United  States  may  by  any 
United  States  judge  or  commissioner  of  a  Circuit  Court  be  arrested 
and  confined,  or  bailed,  as  the  case  may  be,  for  trial  before  the  court 
of  the  United  States  having  cognizance  of  the  offence ;  and,  if  bailed, 
may  be  arrested  by  his  bail,  and  delivered  to  the  marshal  or  his 
deputy,  before  any  judge  or  other  officer  having  power  to  commit 
for  the  offence,  and  be  thereupon  recommitted  to  the  custody  of  tho 
marshal,  to  be  held  until  discharged  by  due  course  of  law.  Rev. 
Stat.  §§  1014,  1018.  They  have  also  provided  that  all  the  expenses 
attendant  upon  the  transportation  from  place  to  place,  and  upon  the 
temporary  or  permanent  confinement  of  persons  arrested  or  com- 
mitted under  the  laws  of  the  United  States,  shall  be  paid  out  of  the 
Treasury  of  the  United  States ;  and  that  the  marshal,  in  case  of 


560  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

necessity,  may  provide  a  convenient  place  for  a  temporary  jail,  and 
"  shall  make  such  other  provision  as  he  may  deem  expedient  and 
necessary  for  the  safe-keeping  of  the  prisoners  arrested  or  com- 
mitted under  the  authority  of  the  United  States,  until  permanent 
provision  for  that  purpose  is  made  by  law."  Kev.  Stat.  §§  oo36- 
5538. 

lu  the  case  at  the  bar,  the  indictments  alleged,  the  evidence  at  the 
trial  tended  to  prove,  and  the  jury  have  found  by  their  verdict,  that 
while  Charles  Marlow  and  five  others,  citizens  of  the  United  States, 
were  in  the  custody  and  control  of  a  deputy  marshal  of  the  United 
States  under  writs  of  commitment  from  a  commissioner  of  the  Cir- 
cuit Court,  in  default  of  bail,  to  answer  to  indictments  for  an  offence 
against  the  laws  of  the  United  States,  the  plaintiffs  in  error  con- 
spired to  injure  and  oppress  them  in  the  free  exercise  and  enjoyment 
of  the  right,  secured  to  them  by  the  Constitution  and  laws  of  the 
United  States,  to  be  protected,  while  in  such  custody  and  control  of 
the  deputy  marshal,  against  assault  and  bodily  harm,  until  they  had 
been  discharged  by  due  process  of  the  laws  of  the  United  States. 

If,  as  some  of  the  evidence  introduced  by  the  government  tended 
to  show,  the  deputy  marshal  and  his  assistants  made  no  attempt  to 
protect  the  prisoners,  but  were  in  league  and  collusion  with  the 
conspirators,  that  does  not  lessen  or  impair  the  right  of  protection, 
secured  to  the  prisoners  by  the  Constitution  and  laws  of  the  United 
States. 

The  prisoners  were  in  the  exclusive  custody  and  control  of  the 
United  States,  under  the  protection  of  the  United  States,  and  in 
the  peace  of  the  United  States.  There  was  a  coextensive  duty  on 
the  part  of  the  United  States  to  protect  against  lawless  violence 
persons  so  within  their  custody,  control,  protection,  and  peace ;  and 
a  corresponding  right  of  those  persons,  secured  by  the  Constitution 
and  laws  of  the  United  States,  to  be  so  protected  by  thp  United 
States.  If  the  officers  of  the  United  States,  charged  with  the  per- 
formance of  the  duty,  in  behalf  of  the  United  States,  of  affording 
that  protection  and  securing  that  right,  neglected  or  violated  their 
duty,  the  prisoners  were  not  the  less  under  the  shield  and  panoply 
of  the  United  States. 

The  cases  heretofore  decided  by  this  court,  and  cited  in  behalf  of 
the  plaintiffs  in  error,  are  in  no  way  inconsistent  with  these  views, 
but,  on  the  contrary,  contain  much  to  support  them.  The  matter 
considered  in  each  of  those  cases  was  whether  the  particular  right 
there  in  question  was  secured  by  the  Constitution  of  the  United 
States,  and  was  within  the  acts  of  Congress. 

[Several  cases  are  stated  with  quotations  therefrom,  including 
United  States  v.  Cruikshank,  92  U.  S.  542,  supra,  p.  31 ;  Civil  Eights 
Cases,  109  U.  S.  3,  supra,  p.  37 ;  and  In  re  Neagle,  135  U.  S.  1,  siq^ra, 
p.  65.] 

The  whole  scope  and  effect  of  this  series  of  decisions  is  that,  while 


SECT.  XV.]  LOGAN   V.    UNITED   STATES.  561 

certain  fundamental  rights,  recognized  and  declared,  but  not  granted 
or  created,  in  some  of  the  Amendments  to  the  Constitution,  are 
thereby  guaranteed  only  against  violation  or  abridgment  by  the 
United  States,  or  by  the  States,  as  the  case  may  be,  and  cannot 
therefore  be  affirmatively  enforced  by  Congress  against  unlawful 
acts  of  individuals ;  yet  that  every  right,  created  by,  arising  under 
or  dependent  upon,  the  Constitution  of  the  United  States,  may  be 
protected  and  enforced  by  Congress  by  such  means  and  in  such 
manner  as  Congress,  in  the  exercise  of  the  correlative  duty  of  pro- 
tection, or  of  the  legislative  powers  conferred  upon  it  by  the  Con- 
stitution, may  in  its  discretion  deem  most  eligible  and  best  adapted 
to  attain  the  object. 

Among  the  particular  rights  which  this  court,  as  we  have  seen, 
has  adjudged  to  be  secured,  expressly  or  by  implication,  by  the  Con- 
stitution and  laws  of  the  United  States,  and  to  be  within  section 
5508  of  the  Revised  Statutes,  providing  for  the  punishment  of  con- 
spiracies by  individuals  to  oppress  or  injure  citizens  in  the  free  exer- 
cise and  enjoyment  of  rights  so  secured,  are  the  political  right  of  a 
voter  to  be  protected  from  violence  while  exercising  his  right  of 
suffrage  under  the  laws  of  the  United  States ;  and  the  private  right 
of  a  citizen,  having  made  a  homestead  entry,  to  be  protected  from 
interference  while  remaining  in  the  possession  of  the  land  for  the 
time  of  occupancy  which  Congress  has  enacted  shall  entitle  him  to  a 
patent. 

In  the  case  at  bar,  the  right  in  question  does  not  depend  upon  any 
of  the  Amendments  to  the  Constitution,  but  arises  out  of  the  crea- 
tion and  establishment  by  the  Constitution  itself  of  a  national  gov- 
ernment, paramount  and  supreme  within  its  sphere  of  action.  Any 
government  which  has  power  to  indict,  try,  and  punish  for  crime,  and 
to  arrest  the  accused  and  hold  them  in  safe  keeping  until  trial,  must 
have  the  power  and  the  duty  to  protect  against  unlawful  interference 
its  prisoners  so  held,  as  well  as  its  executive  and  judicial  officers 
charged  with  keeping  and  trying  them. 

The  United  States  are  bound  to  protect  against  lawless  violence 
all  persons  in  their  service  or  custody  in  the  course  of  the  adminis- 
tration of  justice.  This  duty  and  the  correlative  right  of  protection 
are  not  limited  to  the  magistrates  and  officers  charged  with  expound- 
ing and  executing  the  laws,  but  apply,  with  at  least  equal  force,  to 
those  held  in  custody  on  accusation  of  crime,  and  deprived  of  all 
means  of  self-defence. 

For  these  reasons,  we  are  of  opinion  that  the  crime  of  which  the 
plaintiffs  in  error  were  indicted  and  convicted  was  within  the  reach 
of  the  constitutional  powers  of  Congress,  and  was  covered  by  section 
6508  of  the  Revised  Statutes ;  and  it  remains  to  be  considered 
whether  they  were  denied  any  legal  right  by  the  other  rulings  and 
instructiofts  of  the  Circuit  Court. 

36 


562  THE  LEGISLATIVE  DEPARTMENT.  [CHAP.  IV. 

2.  The  objection  to  the  consolidation  of  the  indictments  on  which 
the  plaintiffs  in  error  were  tried  and  convicted  cannot  prevail. 

[The  conviction  was  reversed,  however,  for  error  in  admitting 
evidence.] 


THE   CHINESE  EXCLUSION  CASE. 

[Chae  Chan  Ping  v.  United  States.] 

ISO  United  States,  581.     1889. 

Mk.  Justice  Field  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  appeal  from  an  order  of  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  California 
refusing  to  release  the  appellant,  on  a  writ  of  habeas  corpus,  from  his 
alleged  unlawful  detention  by  Captain  Walker,  master  of  the  steam- 
ship "  Belgic,"  lying  within  the  harbor  of  San  Fraucisco.  The  ap- 
pellant is  a  svibject  of  the  Emperor  of  China  and  a  laborer  by 
occupation.  He  resided  at  San  Francisco,  California,  following  his 
occupation,  from  some  time  in  1875  until  June  2,  1887,  when  he  left 
for  China  on  the  steamship  "  Gaelic,"  having  in  his  possession  a  certifi- 
cate, in  terms  entitling  him  to  return  to  the  United  States,  bearing 
date  on  that  day,  duly  issued  to  him  by  the  collector  of  customs  of 
the  port  of  San  Francisco,  pursuant  to  the  provisions  of  section  four 
of  the  restriction  act  of  May  6,  1882,  as  amended  by  the  act  of  July 
5,  1884.     22  Stat.  59,  c.  126 ;  23  Stat.  115,  c.  220. 

On  the  7th  of  September,  1888,  the  appellant,  on  his  return  to 
California,  sailed  from  Hong  Kong  in  the  steamship  "  Belgie,"  which 
arrived  within  the  port  of  San  Francisco  on  the  8th  of  October  fol- 
lowing. On  his  arrival  he  presented  to  the  proper  custom-house 
officers  his  certificate,  and  demanded  permission  to  land.  The  col- 
lector of  the  port  refused  the  permit,  solely  on  the  ground  that  under 
the  act  of  Congress,  approved  October  1,  1888,  supplementary  to  the 
restriction  acts  of  1882  and  1884,  the  certificate  had  been  annulled  and 
his  right  to  land  abrogated,  and  he  had  been  thereby  forbidden  again 
to  enter  the  United  States.  25  Stat.  504,  c.  1064.  The  captain  of 
the  steamship,  therefore,  detained  the  appellant  on  board  the  steamer. 
Thereupon  a  petition  on  his  behalf  was  presented  to  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  California, 
alleging  that  he  was  unlawfully  restrained  of  his  liberty,  and  praying 
that  a  writ  of  habeas  corpus  might  be  issued  directed  to  the  master  of 
the  steamship,  commanding  him  to  have  the  body  of  the  appellant, 
with  the  cause  of  his  detention,  before  the  court  at  a  time  and  place 
designated,  to  do  and  receive  what  might  there  be  considered  in  the 
premises.     A    writ   was  accordingly  issued,  and  in  obedience  to  it 


SECT.  XV.]  THE   CHINESE   EXCLUSION   CASE.  56B 

the  body  of  the  appellant  was  produced  before  the  court.  Upon  the 
hearing  which  followed,  the  court,  alter  finding  the  facts  substan- 
tially as  stated,  held  as  conclusions  of  law  that  the  appellant  was 
not  entitled  to  enter  the  United  States,  and  was  not  unlawfully  re- 
strained of  his  liberty,  and  ordered  that  he  be  remanded  to  the  cus- 
tody of  the  master  of  the  steamship  from  which  he  had  been  taken, 
under  the  writ.     From  this  order  an  appeal  was  taken  to  this  court. 

The  appeal  involves  a  consideration  of  the  validity  of  the  act  of 
Congress  of  October  1,  1888,  prohibiting  Chinese  laborers  from  en- 
tering the  United  States  who  had  departed  before  its  passage,  having 
a  certificate  issued  under  the  act  of  1882  as  amended  by  the  act  of 
1884,  granting  them  permission  to  return.  The  validity  of  the  act 
is  assailed  as  being  in  effect  an  expulsion  from  the  country  of 
Chinese  laborers,  in  violation  of  existing  treaties  between  the  United 
States  and  the  government  of  China,  and  of  rights  vested  in  them 
under  the  laws  of  Congress. 

It  will  serve  to  present  with  greater  clearness  the  nature  and  force 
of  the  objections  to  the  act,  if  a  brief  statement  be  made  of  the 
general  character  of  the  treaties  between  the  two  countries  and  of 
the  legislation  of  Congress  to  carry  them  into  execution. 

[A  history  of  the  statutes  and  treaties  relating  to  the  immigration 
of  Chinese  is  here  omitted,  as  not  necessary  to  the  question  for  which 
the  case  is  inserted.] 

There  being  nothing  in  the  treaties  between  China  and  the  United  \ 
States  to  impair  the  validity  of  the  act  of  Congress  of   October.  1,  V 
1888,  was  it  on  any  other  ground  beyond  the  competency  of  Congress 
to  pass  it?     If  so,  it  must  be  because  it  was  not  within  the  power  of  ! 

Congress  to  prohibit  Chinese  laborers  who  had  at  the   time  departed  )  j 

from  the  United  States,  or  should  subsequently  depart,  from  return-  1 

ing  to  the  United   States.     Those  laborers  are  not  citizens  of  the  ; 

United  States  ;  they  r.re  aliens.     That  the  government  of  the  United  ■  ' 

States,  through  the  action  of  the  legislative  department,  can  exclude  \ 
aliens  from  its  territory  is  a  proposition  which  we  do  not  think  open  }i  jj 

to  controversy.     Jurisdiction  over  its  own  territory  to  that  extent  is  /  i 

an  incident  of  every  independent  nation.     It  is  a  part  of  its  inde-  / 
pendence.     If  it  could  not  exclude  aliens  it  would  be  to  that  extent/  < 

subject  to  the  control  of  another  power.     As  said  by  this  court  in  the 
case  of  The  Exchange,  7  Cranch,  116,  130,  speaking  by  Chief  Justice  1 

Marshall:  "  The  jurisdiction  of  the  nation  within  its  own  territory  is^ 
necessarily  exclusive  and  absolute.  It  is  susceptible  of  no  limitation\ 
not  imposed   by  itself.     Any  restriction  upon   it,  deriving  validity  i 

from  an  external  source,  would  imply  a  diminution  of  its  sovereignty  ,  .i 

to  the  extent  of  the  restriction,  and  an  investment  of  that  sovereignty  ,j 

to  the  same  extent  in  that  power  which  could  impose  such  restriction.  l| 

All  exceptions,  therefore,  to  the  full  and  complete  power  of  a  nation\  j 

within  its  own  territories,  must  be  traced  up  to  the  consent  of  the  /  '\ 

nation  itself.     They  can  flow  from  no  other  legitimate  source."  ; 


564  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

While  under  our  Constitution  and  form  of  government  the  great 
mass  of  local  matters  is  controlled  by  local  authorities,  the  United 
States,  in  their  relation  to  foreign  countries  and  their  subjects  or 
citizens,  are  one  nation,  invested  with  powers  which  belong  to  inde- 
pendent nations,  the  exercise  of  which  can  be  invoked  for  the  main- 
tenance of  its  absolute  independence  and  security  throughout  its 
entire  territory.  The  powers  to  declare  war,  make  treaties,  suppress 
insurrection,  repel  invasion,  regulate  foreign  commerce,  secure  re- 
publican governments  to  the  States,  and  admit  subjects  of  other 
nations  to  citizenship,  are  all  sovereign  powers,  restricted  in  their 
exercise  only  by  the  Constitution  itself  and  considerations  of  public 
policy  and  justice  which  control,  more  or  less,  the  conduct  of  all  civil- 
ized nations.  As  said  by  this  court  in  tlie  case  of  Cohens  v.  Virginia, 
6  Wheat.  264,  413,  speaking  by  the  same  great  Chief  Justice:  "That 
the  United  States  form,  for  many,  and  for  most  important  purposes, 
a  single  nation,  has  not  yet  been  denied.  In  war,  we  are  one  people. 
In  making  peace  we  are  one  people.  In  all  commercial  regulations, 
we  are  one  and  the  same  people.  In  many  other  respects  the  Amer- 
ican people  are  one ;  and  the  government  which  is  alone  capable  of 
controlling  and  managing  their  interests  in  all  these  respects  is  the 
government  of  the  Union.  It  is  their  government,  and  in  that 
character  they  have  no  other.  America  has  chosen  to  be  in  many 
respects,  and  to  many  purposes,  a  nation ;  and  for  all  these  purposes 
her  government  is  complete;  to  all  these  objects,  it  is  competent. 
The  people  have  declared,  that  in  the  exercise  of  all  powers  given 
^  for  these  objects,  it  is  supreme.  It  can  then  in  "(affecting  these  ob- 
jects legitimately  control  all  individuals  or  governments  within  the 
American  territory.  The  constitution  and  laws  of  a  State,  so  far  as 
they  are  repugnant  to  the  Constitution  and  laws  of  the  United  States, 
are  absolutely  void.  These  States  are  constituent  parts  of  the 
United  States.  They  are  members  of  one  great  empire  —  for  some 
purposes  sovereign,  for  some  purposes  sul)ordinate."  The  same  view 
is  expressed  in  a  different  form  by  Mr.  Justice  Bradley,  in  Knox  r. 
Lee,  12  Wall.  457,  555,  where  he  observes  that  "  the  United  States 
is  not  only  a  government,  but  it  is  a  national  government,  and  the 
only  government  in  this  country  that  has  the  character  of  nationality. 
It  is  invested  with  power  over  all  the  foreign  relations  of  the  country, 
war,  peace,  and  negotiations  and  intercourse  with  other  na.tions ;  all 
which  are  forbidden  to  the  State  governments.  It  has  jurisdiction 
/<bver  all  those  general  subjects  of  legislation  and  sovereignty  which 
!  affect  the  interests  of  the  whole  people  equally  and  alike,  and  which 
I  require  uniformity  of  regulations  and  laws,  such  as  the  coinage, 
weights  and  measures,  bankruptcies,  the  postal  system,  patent  and 
copyright  laws,  the  public  lands  and  interstate  commerce,  all  which 
/  subjects  are  expressly  or  impliedly  prohibited  to  the  State  govern- 
ments. It  has  power  to  suppress  insurrections,  as  well  as  to  repel 
invasions,  and  to  organize,  arm,  discipline,  and  call  into  service  the 


SECT.  XV.]  THE   CHINESE    EXCLUSION    CASE.  565 

militia  of  the  whole  country.  The  President  is  charged  with  the 
duty  and  invested  with  the  power  to  take  care  that  the  laws  be  faith- 
fully executed.  The  judiciary  has  jurisdiction  to  decide  contro- 
versies between  the  States,  and  between  their  respective  citizens,  as 
well  as  questions  of  national  concern  ;  and  the  government  is  clothed 
with  power  to  guarantee  to  every  State  a  republican  form  of  govern- 
ment, and  to  protect  each  of  them  against  invasion  and  domestic 
violence." 

The  control  of  local  matters  being  left  to  local  authorities,  and 
national  matters  being  intrusted  to  the  government  of  the  Union, 
the  problem  of  free  institutions  existing  over  a  widely  extended 
country,  having  different  climates  and  varied  interests,  has  been 
happily  solved.  For  local  interests  the  several  States  of  the  Union 
exist,  but  for  national  purposes,  embracing  our  relations  with  foreign 
nations,  we  are  but  one  people,  one  nation,  one  power. 

To  preserve  its  independence,  and  give  security  against  foreign 
aggression  and  encroachment,  is  the  highest  duty  of  every  nation, 
and  to  attain  these  ends  nearly  all  other  considerations  are  to  be 
subordinated.  It  matters  not  in  what  form  such  aggression  and  en- 
croachment come,  whether  from  the  foreign  nation  acting  in  its 
national  character  or  from  vast  hordes  of  its  people  crowding  in 
upon  us.  The  government,  possessing  the  powers  which  are  to  be 
exercised  for  protection  and  security,  is  clothed  with  authority  to 
determine  the  occasion  on  which  the  powers  shall  be  called  forth  ; 
and  its  determination,  so  far  as  the  subjects  affected  are  concerned, 
are  necessarily  conclusive  upon  all  its  departments  and  officers.  If, 
therefore,  the  government  of  the  United  States,  through  its  legisla- 
tive department,  considers  the  presence  of  foreigners  of  a  different 
race  in  this  country,  who  will  not  assimilate  with  us,  to  be  dangerous 
to  its  peace  and  security,  their  exclusion  is  not  to  be  stayed  because 
at  the  time  there  are  no  actual  hostilities  with  the  nation  of  which 
the  foreigners  are  subjects.  The  existence  of  war  would  render  the 
necessity  of  the  proceeding  only  more  obvious  and  pressing.  The 
same  necessity,  in  a  less  pressing  degree,  may  arise  when  war  does 
not  exist,  and  the  same  authority  which  adjudges  the  necessity  in 
one  case  must  also  determine  it  in  the  other.  In  both  cases  its  de- 
termination is  conclusive  upon  the  judiciary.  If  the  government  of 
tlie  country  of  which  the  foreigners  excluded  are  subjects  is  dis- 
satisfied with  this  action,  it  can  make  complaint  to  the  executive  head 
of  our  government,  or  resort  to  any  other  measure  which,  in  its  judg- 
ment, its  interests  or  dignity,  may  demand ;  and  there  lies  its  only 
remedy. 

The  power  of  exclusion  of  foreigners  being  an  incident  of  sover- 
eignty belonging  to  the  government  of  the  United  States,  as  a  part 
of  those  sovereign  powers  delegated  by  the  Constitution,  the  right  to 
its  exercise  at  any  time  when,  in  the  judgment  of  the  government, 
the  interests  of  the  country  require  it,  cannot  be  granted  away   or 


^ 


566  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

restrained  on  behalf  of  any  one.  The  powers  of  government  are 
delegated  in  trust  to  the  United  States,  and  are  incapable  of  transfer 
)  to  any  other  parties.  They  cannot  be  abandoned  or  surrendered. 
Nor  can  their  exercise  be  hampered,  when  needed  for  the  public 
good,  by  any  considerations  of  private  interest.  The  exercise  of 
these  public  trusts  is  not  the  subject  of  barter  or  contract.  What- 
ever license,  therefore,  Chinese  laborers  may  have  obtained,  previous 
to  the  act  of  October  1,  1888,  to  return  to  the  United  States  after 
their  departure,  is  held  at  the  will  of  the  government,  revocable  at 
any  time,  at  its  pleasure.  Whether  a  proper  consideration  by  our 
government  of  its  previous  laws,  or  a  proper  respect  for  the  nation 
whose  subjects  are  affected  by  its  action,  ought  to  have  qualified  its 
inhibition  and  made  it  applicable  only  to  persons  departing  from  the 
country  after  the  passage  of  the  act,  are  not  questions  for  judicial 
.  determination.  If  there  be  any  just  ground  of  complaint  on  the  part 
I  of  China,  it  must  be  made  to  the  political  department  of  our  govern- 
'  ment,  which  is  alone  competent  to  act  upon  the  subject.  The  rights 
and  interests  created  by  a  treaty,  which  have  become  so  vested  that 
its  expiration  or  abrogation  will  not  destroy  or  impair  them,  are  such 
as  are  connected  with  and  j.ie  in  pxp^grty,  capable  of  sale  and  trans- 
fer or  other  disposition,  not  such  as  are  personal  and  untransferable 
in  their  character.  Thus  in  The  Head  Money  Cases  [112  U.  S.  580], 
the  court  speaks  of  certain  rights  being  in  some  instances  conferred 
upon  the  citizens  or  subjects  of  one  nation  residing  in  the  territorial 
limits  of  the  other,  which  are  ''capable  of  enforcement  as  between 
private  parties  in  the  courts  of  the  country."  "  An  illustration  of 
this  character,"  it  adds,  "  is  found  in  treaties  which  regulate  the 
mutual  rights  of  citizens  and  subjects  of  the  contracting  nations  in 
regard  to  rights  of  property  by  descent  or  inheritance,  when  the  in- 
dividuals concerned  are  aliens."  112  U.  S.  580,  598.  The  passage 
cited  by  counsel  from  the  language  of  Mr.  Justice  Washington  in 
Society  for  the  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheat. 
464,  493,  also  illustrates  this  doctrine.  There  the  learned  justice 
observes  that  "  if  real  estate  be  purchased  or  secured  under  a  treaty, 
it  would  be  most  mischievous  to  admit  that  the  extinguishment  of 
the  treaty  extinguished  the  right  to  such  estate.  In  truth,  it  no 
more  affects  such  rights  than  the  repeal  of  a  municipal  law  affects 
rights  acquired  under  it."  Of  this  doctrine  there  can  be  no  question 
in  this  court ;  but  far  different  is  this  case,  where  a  continued  sus- 
pension of  the  exercise  of  a  governmental  power  is  insisted  upon  as 
a  right,  because,  by  the  favor  and  consent  of  the  government,  it  has 
not  heretofore  been  exerted  with  respect  to  the  appellant  or  to  the 
class  to  which  he  belongs.  Between  property  rights  not  affected  by 
the  termination  or  abrogation  of  a  treaty,  and  expectations  of  benefits 
from  the  continuance  of  existing  legislation,  there  is  as  wide  a  differ- 
ence as  between  realization  and  hopes. 

Durin;^  the  argument  reference  was  made  by  counsel  to  the  alien 
law  of  June  25,  1798,  and  to  opinions  expressed  at  the  time  by  men 


SECT.  XV.]  FONG   YUE  TING   V,   UNITED   STATES,  567 

of  great  ability  and  learning  against  its  constitutionality.  1  Stat. 
670,  c.  58.  We  do  not  attach  importance  to  those  opinions  in  their 
bearing  upon  this  case.  The  act  vested  in  the  President  power  to 
order  all  such  aliens  as  he  should  judge  dangerous  to  the  peace  and 
safety  of  the  United  States,  or  should  have  reasonable  grounds  to 
suspect  were  concerned  in  any  treasonable  or  secret  machination 
against  the  government,  to  depart  out  of  the  territory  of  the  United 
States  within  such  time  as  should  be  expressed  in  his  order.  There 
were  other  provisions  also  distinguishing  it  from  the  act  under  con- 
sideration. The  act  was  passed  during  a  period  of  great  political 
excitement,  and  it  was  attacked  and  defended  with  great  zeal  and 
ability.  It  is  enough,  however,  to  say  that  it  is  entirely  different 
from  the  act  before  us,  and  the  validity  of  its  provisions  was  never 
brought  to  the  test  of  judicial  decision  in  the  courts  of  the  United 
States.  Order  affirmed. 

In  FoNG  Yde  Ting  v.  United  States,  149  U.  S.  698  (1893),  the  question 
was  as  to  the  validit}-  of  a  statute  providing  for  the  registration  of  Chinese  laborers 
within  the  United  States  who  were  entitled  by  existing  law  to  remain  within  the 
limits  of  the  United  States,  and  the  expulsion  of  those  not  registered ;  and  the  court 
sustained  the  constitutionality  of  the  statute.  Mr.  Justice  Grav  delivering  the 
opinion,,  used  the  following  lauguage  :  — 

"  The  right  to  exclude  or  to  expel  all  aliens,  or  any  class  of  aliens,  absolutely  or 
upon  certain  conditions,  in  war  or  in  peace,  being  an  inherent  and  inalienable  right  of 
every  sovereign  and  independent  nation,  essential  to  its  safety,  its  independence,  and 
its  welfare,  the  question  now  before  the  court  is  whether  the  manner  in  which  Con- 
gress has  exercised  this  right  in  sections  6  and  7  of  the  act  of  1892  is  consistent  with 
the  Constitutiou. 

"  The  United  States  are  a  sovereign  and  independent  nation,  and  are  vested  by  the 
Constitution  with  the  entire  control  of  international  relations,  and  with  all  the  powers 
of  government  necessary  to  maintain  that  control  and  to  make  it  effective.  The  only 
government  of  this  country,  which  other  nations  recognize  or  treat  with,  is  the  govern- 
ment of  the  Union  ;  and  the  only  American  flag  known  throughout  the  world  is  the 
flag  of  the  United  States. 

"  The  Constitution  of  the  United  States  speaks  with  no  uncertain  sound  upon  this 
subject.  That  instrument,  established  by  the  people  of  the  United  States  as  the 
fundamental  law  of  the  land,  has  conferred  upon  the  President  the  executive  power; 
has  made  him  the  commander-in-chief  of  the  army  and  navy  ;  has  authorized  him,  by 
and  with  the  consent  of  the  Senate,  to  make  treaties,  and  to  appoint  ambassadors, 
puldic  ministers,  and  consuls;  and  has  made  it  his  duty  to  take  care  that  the  laws  be 
faithfully  executed.  The  Constituion  has  granted  to  Congress  the  power  to  regulate 
commerce  with  foreign  nations,  including  the  entrance  of  ships,  the  importation  of 
goods,  and  the  bringing  of  persons  into  the  ports  of  the  United  States  ;  to  establish  a 
uniform  rule  of  naturalization  ;  to  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations  ;  to  declare  war,  grant  letters 
of  marque  and  reprisal,  and  make  rules  concerning  captures  on  land  and  water ;  to 
raise  and  support  armies,  to  provide  and  maintain  a  navy,  and  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces ;  and  to  make  all  laws  neces- 
sary and  proper  for  carrying  into  execution  these  powers,  and  all  other  powers  vested 
by  the  Constitutiou  in  the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof.  And  the  several  States  are  expressly  forbidden  to  enter  into  any 
treaty,  alliance,  or  confederation  ;  to  grant  letters  of  marque  and  reprisal ;  to  enter 
into  any  agreement  or  compact  with  another  State,  or  with  a  foreign  power;  or  to 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will  not  admit 
•f  delay." 


568  THE   LEGISLATIVE   DEPARTMENT.  [CHAP.  IV. 

In  the  case  of  United  States  ex  rel.  v.  Williams,  194  U.  S.  279,  24  Snp.  Ct.  Rep, 
719  (1904),  The  Chinese  Exclusion  Case  supra  was  followed  in  holding  constitutional 
a  statute  authorizing  the  executive  officers  of  the  United  States  under  rules  and  regu- 
lations made  by  the  Secretary  of  the  Treasury  to  exclude  or  deport  from  the  United 
States  various  classes  of  aliens  including  those  described  in  the  statnte  as  "  anarchists." 


Section  XVI.  —  Restrictions  on  the  Powers 

OF  Congress. 

[Os  the  general  proposition,  applicable  to  Congress  and  State  legis- 
latures alike,  that  legislative  authority  cannot  be  delegated,  see  the 
cases  under  Chap.  III.,  Sec.  I.,  sujira. 

As  illustrating  the  doctrine  that  a  legislative  body  cannot  pass  an 
act  which  shall  limit  or  be  derogatory  to  the  authority  of  its  succes- 
sors, see  cases  on  pp.  1014-1017.] 


SECT.  I.]  EX  PARTE  WELLS.  669 


CHAPTER  V. 
THE  POWERS  OF  THE  EXECUTIVE. 


Section  I.  —  Reprieves  and  Pardons. 


Ex  PARTE  WELLS. 

18  Howard,  307.     1855. 

Mr.  Justice  Wayne  delivered  the  opinion  of  the  court. 

The  petitioner  was  convicted  of  murder  in  the  District  of  Colum- 
bia, and  sentenced  to  be  hung  on  the  23d  of  April,  1852.  President 
Fillmore  granted  to  him  a  conditional  pardon.  The  material  part  of 
it  is  as  follows :  "  For  divers  good  and  sufficient  reasons  I  have 
granted,  and  do  hereby  grant  unto  him,  the  said  William  Wells,  a 
pardon  of  the  offence  of  which  he  was  convicted  —  upon  condition 
that  he  be  imprisoned  during  his  natural  life ;  that  is,  the  sentence 
of  death  is  hereby  commuted  to  imprisonment  for  life  in  the  peniten- 
tiary of  Washington."  On  the  same  day  the  pardon  was  accepted  in 
these  words :  "  I  hereby  accept  the  above  and  within  pardon,  with 
condition  annexed." 

An  application  was  made  by  the  petitioner  to  the  Circuit  Court  of 
the  District  of  Columbia,  for  a  writ  of  habeas  corpus.  It  was  rejected, 
and  is  now  before  this  court  by  way  of  appeal. 

The  second  article  of  the  Constitution  of  the  United  States,  section 
two,  contains  this  provision :  "  The  President  shall  have  power  to 
grant  reprieves  and  pardons  for  offences  against  the  United  States, 
except  in  cases  of  impeachment." 

Under  this  power,  the  President  has  granted  reprieves  and  pardons 
since  the  commencement  of  the  present  government.  Sundry  pro- 
visions have  been  enacted,  regulating  its  exercise  for  the  army  and 
navy,  in  virtue  of  the  constitutional  power  of  Congress  to  make  rules 
and  regulations  for  the  government  of  the  army  and  navy.  No  stat- 
ute has  ever  been  passed  regulating  it  in  cases  of  conviction  by  the 
civil  authorities.  In  such  cases,  the  President  has  acted  exclusively 
under  the  power  as  it  is  expressed  in  the  Constitution. 

This  case  raises  the  question,  whether  the  President  can  constitu- 
tionally grant  a  conditional  pardon  to  a  convicted  murderer,  sentenced 


570  THE  POWERS   OF  THE   EXECUTIVE.  [CHAP.  V. 

to  be  hung,  offering  to  change  that  punishment  to  imprisonment  for 
life;  and  if  he  does,  and  it  be  accepted  by  tlie  convict,  whether  it  is 
not  binding  upon  him,  to  justify  a  court  to  refuse  him  a  writ  of 
habeas  corjms,  applied  for  upon  the  ground  that  the  pardon  is  abso- 
lute, and  the  condition  of  it  void. 

The  counsel  for  the  prisoner  contends  that  the  pardon  is  valid,  to 
remit  entirely  the  sentence  of  the  court  for  his  execution,  and  that 
the  condition  annexed  to  the  pardon,  and  accepted  by  the  prisoner,  is 
illegal.  It  is  also  said  that  a  President  granting  such  a  power  as- 
sumes a  power  not  conferred  by  the  Constitution  —  that  he  legislates 
a  new  punishment  into  existence,  and  sentences  the  convict  to  suffer 
it;  in  this  way  violating  the  legislative  and  judicial  powers  of  the  gov- 
ernment, it  being  the  province  of  the  first  to  enact  laws  for  the 
punishment  of  offences  against  the  United  States,  and  that  of  the 
judiciary  to  sentence  convicts  for  violations  of  those  laws  according 
to  them.  It  is  said  to  be  the  exercise  of  prerogative,  such  as  the 
king  of  England  has  in  such  cases,  and  that,  under  our  system,  there 
can  be  no  other  foundation,  empowering  a  President  of  the  United 
States  to  show  the  same  clemency. 

We  think  this  is  a  mistake  arising  from  the  want  of  due  considera- 
tion of  the  legal  meaning  of  the  word  <' pardon."  It  is  supposed  that 
it  was  meant  to  be  used  exclusively  with  reference  to  an  absolute  par- 
don, exempting  a  criminal  from  the  punishment  which  the  law  inflicts 
for  a  crime  he  has  committed. 

But  such  is  not  the  sense  or  meaning  of  the  word,  either  in  com- 
mon parlance  or  in  law.  In  the  first,  it  is  forgiveness,  release,  remis- 
sion. Forgiveness  for  an  offence,  whether  it  be  one  for  which  the 
person  committing  it  is  liable  in  law  or  otherwise.  Release  from 
pecuniary  obligation,  as  where  it  is  said,  I  pardon  you  your  debt.  Or 
it  is  the  remission  of  a  penalty,  to  which  one  may  have  subjected 
himself  by  the  non-performance  of  an  undertaking  or  contract,  or 
when  a  statutory  penalty  in  money  has  been  incurred,  and  it  is  re- 
mitted by  a  public  functionary  having  power  to  remit  it. 

In  the  law  it  has  different  meanings,  which  were  as  well  under- 
stood when  the  Constitution  was  made  as  any  other  legal  word  in  the 
Constitution  now  is. 

Such  a  thing  as  a  pardon  without  a  designation  of  its  kind  is  not 
known  in  the  law.  Time  out  of  mind,  in  the  earliest  books  of  the 
English  law,  every  pardon  has  its  particular  denomination.  They 
are  general,  special  or  particular,  conditional  or  absolute,  statutory, 
not  necessary  in  some  cases,  and  in  some  grantable  of  course. 
Sometimes,  though,  an  express  pardon  for  one  is  a  pardon  for  an- 
other, such  as  in  approver  and  appellee,  principal  and  accessory  in 
certain  cases,  or  where  many  are  indicted  for  felony  in  the  same  in- 
dictment, because  the  felony  is  several  in  all  of  them,  and  not  joint, 
and  the  pardon  for  one  of  them  is  a  pardon  for  all,  though  they  may 
not  be  mentioned  in  it ;  or  it  discharges  sureties  for  a  fine,  payable 


SECT.  I.]  EX   PARTE   WELLS.  571 

at  a  certain  day,  and  the  king  pardons  the  principal ;  or  sureties  for 
the  peace,  if  the  principal  is  pardoned,  after  forfeiture.  We  might 
mention  other  legal  incidents  of  a  pardon,  but  those  mentioned  are 
enough  to  illustrate  the  subject  of  pardon,  and  the  extent  or  meaning 
of  the  President's  power  to  grant  reprieves  and  pardons.  It  meant 
that  the  power  was  to  be  used  according  to  law ;  that  is,  as  it  had 
been  used  in  England,  and  these  States  when  they  were  colonies; 
not  because  it  was  a  prerogative  power,  but  as  incidents  of  the  power 
to  pardon,  particularly  when  the  circumstances  of  any  case  disclosed 
such  uncertainties  as  made  it  doubtful  if  there  should  have  been  a 
conviction  of  the  criminal,  or  when  they  are  such  as  to  show  that 
there  might  be  a  mitigation  of  the  punishment  without  lessening  the 
obligation  of  vindicatory  justice.  Without  such  a  power  of  clemency, 
to  be  exercised  by  some  department  or  functionary  of  a  government, 
it  would  be  most  imperfect  and  deficient  in  its  political  morality,  and 
in  that  attribute  of  deity  whose  judgments  are  always  tempered  with 
mercy.  And  it  was  with  the  fullest  knowledge  of  the  law  upon  the 
subject  of  pardons,  and  the  philosophy  of  government  in  its  bearing 
upon  the  Constitution,  when  this  court  instructed  Chief  Justice 
Marshall  to  say,  in  The  United  States  v.  Wilson,  7  Pet.  162 :  "  As 
the  power  has  been  exercised  from  time  immemorial  by  the  executive 
of  that  nation  whose  language  is  our  language,  and  to  whose  judicial 
institutions  ours  bear  a  close  resemblance,  we  adopt  their  principles 
respecting  the  operation  and  effect  of  a  pardon,  and  look  into  their 
books  for  the  rules  prescribing  the  manner  in  which  it  is  to  be  used 
by  the  person  who  would  avail  himself  of  it."  We  still  think  so,  and 
that  the  language  used  in  the  Constitution,  conferring  the  power  to 
grant  reprieves  and  pardons,  must  be  construed  with  reference  to  its 
meaning  at  the  time  of  its  adoption.  At  the  time  of  our  separation 
from  Great  Britain,  that  power  had  been  exercised  by  the  king,  as 
the  chief  executive.  Prior  to  the  revolution,  the  colonies,  being  in 
effect  under  the  laws  of  England,  were  accustomed  to  the  exercise  of 
it  in  the  various  forms,  as  they  may  be  found  in  the  English  law 
books.  They  were,  of  course,  to  be  applied  as  occasions  occurred,  and 
they  constituted  a  part  of  the  jurisprudence  of  Anglo-America.  At 
the  time  of  the  adoption  of  the  Constitution,  American  statesmen 
were  conversant  with  the  laws  of  England,  and  familiar  with  the  pre- 
rogatives exercised  by  the  crown.  Hence,  when  the  words  "to  grant 
pardons"  were  used  in  the  Constitution,  they  conveyed  to  the  mind 
the  authority  as  exercised  by  the  English  crown,  or  by  its  represen- 
tatives in  the  colonies.  At  that  time  both  Englishmen  and  Americans 
attached  the  same  meaning  to  the  word  "pardon."  In  the  conven- 
tion which  framed  the  Constitution,  no  effort  was  made  to  define  or 
change  its  meaning,  although  it  was  limited  in  cases  of  impeachment. 
We  must  then  give  the  word  the  same  meaning  as  prevailed  here 
and  in  England  at  the  time  it  found  a  place  in  the  Constitution. 
This  is  in  conformity  with  the  principles  laid  down  by  this  court  in 


572  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

Cathcart  v.  Eobinson,  5  Pet.  264,  280 ;  and  in  Flavel's  Case,  8  Watts 
&  Serg.  197  ;  Attorney-General's  brief. 

A  pardon  is  said  by  Lord  Coke  to  be  a  work  of  mercy,  whereby  the 
king,  either  before  attainder,  sentence,  or  conviction,  or  after,  forgiv- 
eth  any  crime,  offence,  punishment,  execution,  right,  title,  debt,  or 
duty,  temporal  or  ecclesiastical.  3  Inst.  233.  And  the  king's  coro- 
nation oath  is,  "that  he  will  cause  justice  to  be  executed  in  mercy." 
It  is  frequently  conditional,  as  he  may  extend  his  mercy  upon  what 
terms  he  pleases,  and  annex  to  his  bounty  a  condition  precedent  or 
subsequent,  on  the  performance  of  which  the  validity  of  the  pardon 
will  depend.  Co.  Litt.  274,  276;  2  Hawk.  Ch.  37,  §  45 ;  4  Black. 
Com.  401.  And  if  the  felon  does  not  perform  the  condition  of  the 
pardon,  it  will  be  altogether  void ;  and  he  may  be  brought  to  the 
bar  and  remanded,  to  suffer  the  punishment  to  which  he  was  origi- 
nally sentenced.  Cole's  Case,  Moore,  466 ;  Bac.  Abr.,  Pardon,  E.  In 
the  case  of  Packer  and  others  —  Canadian  prisoners  —  5  Mees.  &  W. 
32,  Lord  Abinger  decided  for  the  court,  if  the  condition  upon  which 
alone  the  pardon  was  granted  be  void,  the  pardon  must  also  be  void. 
If  the  condition  were  lawful,  but  the  prisoner  did  not  assent  to  it,  nor 
submit  to  be  transported,  he  cannot  have  the  benefit  of  the  pardon  — 
or  if,  having  assented  to  it,  his  assent  be  revocable,  we  must  consider 
him  to  have  retracted  it  by  the  application  to  be  set  at  liberty,  in 
which  case  he  is  equally  unable  to  avail  himself  of  the  pardon. 

But  to  the  power  of  pardoning  there  are  limitations.  The  king 
cannot,  by  any  previous  license,  make  an  offence  dispunishable  which 
is  malum  in  se,  i.  e.  unlawful  in  itself,  as  being  against  the  law  of 
nature,  or  so  far  against  the  public  good  as  to  be  indictable  at  com- 
mon law.  A  grant  of  this  kind  would  be  against  reason  and  the 
common  good,  and  therefore  void.  2  Hawk.  C.  37,  §  28.  So  he  can- 
not release  a  recognizance  to  keep  the  peace  with  another  by  name, 
and  generally  with  other  lieges  of  the  king,  because  it  is  for  the 
benefit  and  safety  of  all  his  subjects.  3  Inst.  238.  Nor,  after  suit 
has  been  brought  in  a  popular  action,  can  the  king  discharge  the  in- 
former's part  of  the  penalty  (3  Inst.  238) ;  and  if  the  action  be  given 
to  the  party  grieved,  the  king  cannot  discharge  the  same.  3  Inst. 
237.  Nor  can  the  king  pardon  for  a  common  nuisance,  because  it 
would  take  away  the  means  of  compelling  a  redress  of  it,  unless  it  be 
in  a  case  where  the  fine  is  to  the  kinpr,  and  not  a  forfeiture  to  the 
party  grieved.     Hawk.  C.  37,  §  33;  5  Chit.  Bnrn.  2. 

And  this  power  to  pardon  has  also  been  restrained  by  particular  stat- 
utes. By  the  act  of  settlement,  12  &  13  Will.  III.  c.  2,  Eng.,  no  par- 
don under  the  great  seal  is  pleadable  to  an  impeachment  by  the 
Commons  in  Parliament,  but  after  the  articles  of  impeachment  have 
been  heard  and  determined,  he  may  pardon.  The  provision  in  our 
Constitution,  excepting  cases  of  impeachment  out  of  the  power  of  the 
President  to  pardon,  was  evidently  taken  from  that  statute,  and  is  an 
improvement  upon  the  same.     Nor  does  the  power  to  pardon  in  Eng- 


SECT.  I.]  EX   PARTE   WELLS.  673 

land  extend  to  the  habeas  corpus  act,  31  Car.  II.  c.  2,  which  makes  it  a 
preniunire  to  send  a  subject  to  any  prison  out  of  England,  &c.,  or  be- 
yond the  seas,  and  further  provides  that  any  person  so  offending  shall 
be  incapable  of  the  king's  pardon.  There  are  also  pardons  grantable 
as  of  common  right,  without  any  exercise  of  the  king's  discretion ;  as 
where  a  statute  creating  an  offence,  or  enacting  penalties  for  its 
future  punishment,  holds  out  a  promise  of  immunity  to  accomplices 
to  aid  in  the  conviction  of  their  associates.  When  accomplices 
do  so  voluntarily,  they  have  a  right  absolutely  to  a  pardon.  1  Chit. 
C.  L.  766.  Also,  when,  by  the  king's  proclamation,  they  are  prom- 
ised immunity  on  discovering  their  accomplices  and  are  the  means  of 
convicting  them.  Rudd's  Case,  Cowp.  334;  1  Leach,  118.  But  except 
in  these  cases,  accomplices,  though  admitted  according  to  the  usual 
phrase  to  be  "  king's  evidence,"  have  no  absolute  claim  or  legal  right 
to  a  pardon.  But  they  have  an  equitable  claim  to  paVdon,  if  upon  the 
trial  a  full  and  fair  disclosure  of  the  joint  guilt  of  one  of  them  and 
his  associates  is  made.  He  cannot  plead  it  in  bar  of  an  indictment 
for  such  offence,  but  he  may  use  it  to  put  off  the  trial,  in  order  to 
give  him  time  to  apply  for  a  pardon.  Rudd's  Case,  Cowp.  331 ;  1 
Leach,  115.  So,  conditional  pardons  by  the  king  do  not  permit 
transportation  or  exile  as  a  commutable  punishment,  unless  the  same 
has  been  provided  for  by  legislation.  See  39  Eliz.  c.  4,  and  5  Geo.  IV. 
c.  84,  a  consolidation  of  all  the  laws  regulating  the  transportation  of 
offenders  from  Great  Britain. 

Having  shown,  by  the  citation  of  many  authorities,  the  king's 
power  to  grant  conditional  pardons,  with  the  restraints  upon  the 
power,  also  when  pardons  for  offences  and  crimes  are  grantable  of 
course,  and  when  a  party  has  an  equitable  right  to  appl}^  for  a  par- 
don, we  now  proceed  to  show,  by  the  decisions  of  some  of  the  courts 
of  the  States  of  this  Union,  that  they  have  expressed  opinions  coin- 
cident with  what  has  been  stated  to  be  the  law  of  England,  and  more 
particularly  how  the  pardoning  power  may  be  exercised  in  them  by 
the  governors  of  the  States,  whose  constitutions  have  clauses  giving 
to  them  the  power  to  grant  pardons,  in  terms  identical  with  those 
used  in  the  Constitution  of  the  United  States. 

In  the  Constitution  of  the  State  of  Pennsylvania,  of  1790,  it  is  de- 
clared in  the  2d  article,  section  9,  that  the  governor  shall  have  power 
to  remit  fines  and  penalties,  and  grant  reprieves  and  pardons,  except 
in  cases  of  impeachment. 

Sargeant,  Justice,  said  in  Flavel's  Case,  8  "Watts  &  Serg.  197, 
"several  propositions  were  made  in  the  convention  which  formed  the 
Constitution  of  1838.  to  limit  and  control  the  exercise  of  the  power  of 
pardon  by  the  executive,  but  they  were  overruled  and  the  provision 
left  as  it  stood."  "Now,  no  principle  is  better  settled  than  that  for 
the  definition  of  legal  terms  and  construction  of  legal  powers  men- 
tioned in  our  Constitution  and  laws,  we  must  resort  to  the  common 
law  when  no  act  or  assembly,  or  judicial  interpretation,  or  settled 
usage,  has  altered  their  meaning." 


574  THE   POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

Then  proceeding  to  show  the  nature  and  application  of  conditions, 
the  learned  judge  remarks  :  "  And  so  may  the  king  make  a  charter 
of  pardon  to  a  man  of  his  life,  upon  condition.  A  pardon,  therefore, 
being  an  act  of  such  a  nature  as  that  by  the  common  law  it  may  be 
upon  any  condition,  it  has  the  same  nature  and  operation  in  Penn- 
sylvania, and  it  follows  that  the  governor  may  annex  to  a  pardon  any 
condition,  whether  subsequent  or  precedent,  not  forbidden  by  law. 
And  it  lies  upon  the  grantee  to  perform  the  condition;  or  if  the  con- 
dition is  not  performed,  the  original  sentence  remains  in  full  vigor 
and  may  be  carried  into  effect." 

To  this  case  we  add  those  of  The  State  v.  Smith,  1  Bailey's  S.  C. 
Rep.  283,  298 ;  also  Addington's  Case,  in  the  2d  volume  of  the  same 
reporter,  p.  516 ;  also  Hunt,  ex  jparte  ;  also  that  of  The  People  v.  Pot- 
ter, X.  Y.  Leg.  Obs.  177;  s.  c.  1  Parker  Crim.  Rep.  4;  and  the  case 
of  The  United  States  v.  Geo.  Wilson,  7  Pet.  150. 

But  it  was  urged  by  the  counsel  who  represents  the  petitioner,  that 
the  power  to  reprieve  and  pardon  does  not  include  the  power  to  grant 
a  conditional  pardon,  the  latter  not  having  been  enumerated  in  the 
Constitution  as  a  distinct  power.  And  he  cited  the  constitutions  of 
several  of  the  States,  the  legislation  of  others,  and  two  decisions,  to 
show  that  when  the  power  to  commute  punishment  had  not  been 
given  in  terms,  that  legislation  had  authorized  it;  and  that  when 
that  had  not  been  done,  that  the  courts  had  decided  against  the 
commutation  by  the  governors  of  the  States.  And  it  was  said,  so  far 
from  the  President  having  such  a  power,  that,  as  the  grant  was  not 
in  the  Constitution,  Congress  would  not  give  it. 

It  not  unfrequently  happens  in  discussions  upon  the  Constitution, 
that  an  involuntary  change  is  made  in  the  words  of  it,  or  \\\  their 
order,  from  which,  as  they  are  used,  there  may  be  a  logical  conclu- 
sion, though  it  be  different  from  what  the  Constitution  is  in  fact. 
And  even  though  the  change  may  appear  to  be  equivalent,  it  will  be 
found  upon  reflection  not  to  convey  the  full  meaning  of  the  words 
used  in  the  Constitution.  This  is  an  example  of  it.  The  power  as 
given  is  not  to  reprieve  and  pardon,  but  that  the  President  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment.  The  difference  between  the 
real  language  and  that  used  in  the  argument  is  material.  The  first 
conveys  only  the  idea  of  an  absolute  power  as  to  the  purpose  or 
object  for  which  it  is  given.  The  real  language  of  the  Constitution 
is  general,  that  is,  common  to  the  class  of  pardons,  or  extending  the 
power  to  pardon  to  all  kinds  of  pardons  known  in  the  law  as  such, 
"whatever  may  be  their  denomination.  We  have  shown  that  a  condi- 
tional pardon  is  one  of  them.  A  single  remark  from  the  power  to 
grant  reprieves  will  illustrate  the  point.  That  is  not  only  to  be  used 
to  delay  a  judicial  sentence  when  the  President  shall  think  the  merits 
of  the  case,  or  some  cause  connected  with  the  offender,  may  require  it, 
but  it  extends  also  to  cases  ex  necessitate  legis,  as  where  a  female  after 


SECT.  I.]  EX   PARTE   WELLS.  575 

conviction  is  found  to  be  enceinte,  or  where  a  convict  becomes  insane, 
or  is  alleged  to  be  so.  Though  the  reprieve  in  either  case  produces 
delay  in  the  execution  of  a  sentence,  the  means  to  be  used,  to  deter- 
mine either  of  the  two  just  mentioned,  are  clearly  within  the  Presi- 
dent's power  to  direct;  and  reprieves  in  such  cases  are  different  in 
their  legal  character,  and  different  as  to  the  causes  which  may  induce 
the  exercise  of  the  power  to  reprieve. 

In  this  view  of  the  Constitution,  by  giving  to  its  words  their  proper 
meaning,  the  power  to  pardon  conditionally  is  not  one  of  inference  at 
all,  but  one  conferred  in  terms. 

The  mistake  in  the  argument  is,  in  considering  an  incident  of 
the  power  to  pardon  the  exercise  of  a  new  power,  instead  of  its  being 
a  part  of  the  power  to  pardon.  We  use  the  word  incident  as  a  legal 
terra,  meaning  something  appertaining  to  and  necessarily  depending 
upon  another,  which  is  termed  the  principal. 

But  admitting  that  to  be  so,  it  may  be  said,  as  the  condition,  when 
accepted,  becomes  a  substitute  for  the  sentence  of  the  court,  involv- 
ing another  punishment,  the  latter  is  substantially  the  exercise  of  a 
new  power.  But  this  is  not  so,  for  the  power  to  offer  a  condition, 
without  ability  to  enforce  its  acceptance,  when  accepted  by  the  con- 
vict, is  the  substitution,  by  himself,  of  a  lesser  punishment  than  the 
law  has  imposed  upon  him,  and  he  cannot  complain  if  the  law  exe- 
cutes the  choice  he  has  made. 

As  to  the  suggestion  that  conditional  pardons  cannot  be  considered 
as  being  voluntarily  accepted  by  convicts  so  as  to  be  binding  upon 
them,  because  they  are  made  whilst  under  duress  /)er  minas  and 
duress  of  imprisonment,  it  is  only  necessary  to  remark,  that  neither 
applies  to  this  case,  as  the  petitioner  was  legally  in  prison-  "  If  a 
man  be  legally  imprisoned,  and  either  to  procure  his  discharge,  or  on 
any  other  fair  account,  seal  a  bond  or  deed,  this  is  not  duress  or 
imprisonment,  and  he  is  not  at  liberty  to  avoid  it.  And  a  man  con- 
demned to  be  hung  cannot  be  permitted  to  escape  the  punishment 
altogether,  by  pleading  that  he  had  accepted  his  life  by  duress  j^er 
minas.''^  And  if  it  be  further  urged,  as  it  was  in  the  argument  of 
this  case,  that  no  man  can  make  himself  a  slave  for  life  by  conven- 
tion, the  answer  is,  that  the  petitioner  had  forfeited  his  life  for 
crime,  and  had  no  liberty  to  part  with. 

We  believe  we  have  now  noticed  every  point  made  in  the  argument 
by  counsel  on  both  sides,  except  that  which  deduces  the  President's 
power  to  grant  a  conditional  pardon,  from  the  local  law  of  Mary- 
land, of  force  in  the  District  of  Columbia.  We  do  not  thing  it  neces- 
sary to  discuss  it,  as  we  have  shown  that  the  President's  power  to  do 
so  exists  under  the  Constitution  of  the  United  States. 

We  are  of  opinion  that  the  Circuit  Court  of  the  District  of  Columl)ia 
rightly  refused  the  petitioner's  application,  and  this  court  affirms  it.^ 

^  Mr.  Justice  McLean  delivered  a  dissenting  opinion. 


576  THE   POWERS   OF  THE   EXECUTIVE.  [CHAP.  V. 

Ex  PARTE  GAELAI^D. 
4  Wallace,  333.     1866. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

On  the  second  of  July,  1862,  Congress  passed  an  act  prescribing  an 
oath  to  be  taken  by  every  person  elected  or  appointed  to  any  office  of 
honor  or  profit  under  the  government  of  the  United  States,  either  in 
the  civil,  military,  or  naval  departments  of  the  public  service,  except 
the  President,  before  entering  upon  the  duties  of  his  office,  and  before 
being  entitled  to  its  salary,  or  other  emoluments.  On  the  24th  of 
January,  1865,  Congress,  by  a  supplementary  act,  extended  its  pro- 
visions so  as  to  embrace  attorneys  and  counsellors  of  the  courts  of 
the  United  States.  This  latter  act  provides  that  after  its  passage  no 
person  shall  be  admitted  as  an  attorney  and  counsellor  to  the  bar  of 
the  Supreme  Court,  and,  after  the  fourth  of  March,  1865,  to  the  bar 
of  any  Circuit  or  District  Court  of  the  United  States,  or  of  the  Court 
of  Claims,  or  be  allowed  to  appear  and  be  heard  by  virtue  of  any  pre- 
vious admission,  or  any  special  power  of  attorney,  unless  he  shall 
have  first  taken  and  subscribed  the  oath  prescribed  by  the  act  of  July 
2d,  1862.  It  also  provides  that  the  oath  shall  be  preserved  among 
the  files  of  the  court;  and  if  any  person  take  it  falsely  he  shall  be 
guilty  of  perjury,  and,  upon  conviction,  shall  be  subject  to  the  pains 
and  penalties  of  that  offence. 

At  the  December  Term,  1860,  the  petitioner  was  admitted  as  an 
attorney  and  counsellor  of  this  court,  and  took  and  subscribed  the 
oath  then  required.  By  the,  second  rule,  as  it  then  existed,  it  was 
only  requisite  to  the  admission  of  attorneys  and  counsellors  of  this 
court,  that  they  should  have  been  such  officers  for  the  three  previous 
years  in  the  highest  courts  of  the  States  to  which  they  respectively 
belonged,  and  that  their  private  and  professional  character  should 
appear  to  be  fair. 

In  March,  1865,  this  rule  was  changed  by  the  addition  of  a  clause 
requiring  the  administration  of  the  oath,  in  conformity  with  the  act 
of  Congress. 

In  May,  1861,  the  State  of  Arkansas,  of  which  the  petitioner  was  a 
citizen,  passed  an  ordinance  of  secession,  which  purported  to  withdraw 
the  State  from  the  Union,  and  afterwards,  in  the  same  year,  by  an- 
other ordinance,  attached  herself  to  the  so-called  Confederate  States, 
and  by  act  of  the  congress  of  that  confederacy  was  received  as  one  of 
its  members. 

The  petitioner  followed  the  State,  and  was  one  of  her  representa- 
tives —  first  in  the  lower  house,  and  afterwards  in  the  senate,  of  the 
congress  of  that  confederacy,  and  was  a  member  of  the  senate  at  the 
time  of  the  surrender  of  the  Confederate  forces  to  the  armies  of 
the  United  States. 

In  July,  1865,  he  received  from  the  President  of  the  United  States 


SECT.  I.]  EX   PARTE   GARLAND.  677 

a  full  pardon  for  all  offences  committed  by  his  participation,  direct 
or  implied,  in  the  Rebellion.  He  now  produces  his  pardon,  and  asks 
permission  to  continue  to  practise  as  an  attorney  and  counsellor  of  the 
court  without  taking  the  oath  required  by  the  act  of  January  24th, 
1865,  and  the  rule  of  the  court,  which  he  is  unable  to  take,  by  reason 
of  the  offices  he  held  under  the  Confederate  government.  He  rests 
his  application  principall}^  upon  two  grounds:  — 

1st.  That  the  act  of  January  24th,  1865,  so  far  as  it  affects  his 
status  in  the  court,  is  unconstitutional  and  void;  and, 

2d.  That,  if  the  act  be  constitutional,  he  is  released  from  compliance 
with  its  provisions  by  the  pardon  of  the  President. 

The  oath  prescribed  by  the  act  is  as  follows :  — 

1st.  That  the  deponent  has  never  voluntarily  borne  arms  against 
the  United  States  since  he  has  been  a  citizen  thereof; 

2d.  That  he  has  not  voluntarily  given  aid,  countenance,  counsel,  or 
encouragement  to  persons  engaged  in  armed  hostility  thereto; 

3d.  That  he  has  never  sought,  accepted,  or  attempted  to  exercise 
the  functions  of  any  office  whatsoever,  under  any  authority,  or  pre- 
tended authority,  in  hostility  to  the  United  States  ; 

4th.  That  he  has  not  yielded  a  voluntary  support  to  any  pretended 
governfaent,  authority,  power,  or  constitution,  within  the  United 
States,  hostile  or  inimical  thereto;  and, 

5th.  That  he  will  support  and  defend  the  Constitution  of  the 
United  States  against  all  enemies,  foreign  and  domestic,  and  will 
bear  true  faith  and  allegiance  to  the  same. 

This  last  clause  is  promissory  only,  and  requires  no  consideration. 
The  questions  presented  for  our  determination  arise  from  the  other 
clauses.  These  all  relate  to  past  acts.  Some  of  these  acts  consti- 
tuted, when  they  were  committed,  offences  against  the  criminal  laws 
of  the  country  ;  others  may,  or  may  not,  have  been  offences  according 
to  the  circumstances  under  which  they  were  committed,  and  the  mo- 
tives of  the  parties.  The  first  clause  covers  one  form  of  the  crime  of 
treason,  and  the  deponent  must  declare  that  he  has  not  been  guilty 
of  this  crime,  not  only  during  the  War  of  the  Rebellion,  but  during 
any  period  of  his  life  since  he  has  been  a  citizen.  The  second  clause 
goes  beyond  the  limits  of  treason,  and  embraces  not  only  the  giving  of 
aid  and  encouragement  of  a  treasonable  nature  to  a  public  enemy,  but 
also  the  giving  of  assistance  of  any  kind  to  persons  engaged  in  armed 
hostility  to  the  United  States.  The  third  clause  applies  to  the  seek- 
ing, acceptance,  or  exercise  not  only  of  offices  created  for  the  purpose 
of  more  effectually  carrying  on  hostilities,  but  also  of  any  of  those 
offices  which  are  required  in  every  community,  whether  in  peace  or 
war,  for  the  administration  of  justice  and  the  preservation  of  order. 
The  fourth  clause  not  only  includes  those  who  gave  a  cordial  and 
active  support  to  the  hostile  government,  but  also  those  who  yielded 
a  reluctant  obedience  to  the  existing  order,  established  without  their 
co-operation. 

37 


578  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

The  statute  is  directed  against  parties  who  have  offended  in  any  of 
the  particulars  embraced  by  these  clauses.  And  its  object  is  to  ex- 
clude them  from  the  profession  of  the  law,  or  at  least  from  its  prac- 
tice in  the  courts  of  the  United  States.  As  the  oath  prescribed  cannot 
be  taken  by  these  parties,  the  act,  as  against  them,  operates  as  a  legis- 
lative decree  of  perpetual  exclusion.  And  exclusion  from  any  of  the 
professions  or  any  of  the  ordinary  avocations  of  life  for  past  conduct 
can  be  regarded  in  no  other  light  than  as  punishment  for  such  con- 
duct. The  exaction  of  the  oath  is  the  mode  provided  for  ascertaining 
the  parties  upon  whom  the  act  is  intended  to  operate,  and  instead  of 
lessening,  increases  its  objectionable  character.  All  enactments  of 
this  kind  partake  of  the  nature  o'f  bills  of  pains  and  penalties,  and 
are  subject  to  the  constitutional  inhibition  against  the  passage  of  bills 
of  attainder,  under  which  general  designation  they  are  included. 

In  the  exclusion  which  the  statute  adjudges  it  imposes  a  punish- 
ment for  some  of  the  acts  specified  which  were  not  punishable  at  the 
time  they  were  committed ;  and  for  other  of  the  acts  it  adds  a  new 
punishment  to  that  before  prescribed,  and  it  is  thus  brought  within 
the  further  inhibition  of  the  Constitution  against  the  passage  of  an 
ex  post  facto  law.  In  the  case  of  Cummings  against  The  State  of 
Missouri,  just  decided,  we  have  had  occasion  to  consider  at  length 
the  meaning  of  a  bill  of  attainder  and  of  an  ex  2^ost  facto  law  in  the 
clause  of  the  Constitution  forbidding  their  passage  by  the  States,  and 
it  is  unnecessary  to  repeat  here  what  we  there  said.  A  like  pro- 
hibition is  contained  in  the  Constitution  against  enactments  of  this 
kind  by  Congress ;  and  the  argument  presented  in  that  case  against 
certain  clauses  of  the  Constitution  of  Missouri  is  equally  applicable 
to  the  act  of  Congress  under  consideration  in  this  case. 

The  profession  of  an  attorney  and  counsellor  is  not  like  an  office 
created  by  an  act  of  Congress,  which  depends  for  its  continuance,  its 
powers,  and  its  emoluments  upon  the  will  of  its  creator,  and  the  pos- 
session of  which  may  be  burdened  Avitli  any  conditions  not  prohibited 
by  the  Constitution.  Attorneys  and  counsellors  are  not  officers  of 
the  United  States  ;  they  are  not  elected  or  appointed  in  the  manner 
prescribed  by  the  Constitution  for  the  election  and  appointment  of 
such  officers.  They  are  officers  of  the  court,  admitted  as  such  by  its 
order,  upon  evidence  of  their  possessing  sufficient  legal  learning  and 
fair  private  character.  It  has  been  the  general  practice  in  this  coun- 
try to  obtain  this  evidence  by  an  examination  of  the  parties.  In  this 
court  the  fact  of  the  admission  of  such  officers  in  the  highest  court  of 
the  States  to  which  they  respectively  belong,  for  three  years  preced- 
ing their  application,  is  regarded  as  sufficient  evidence  of  the  posses- 
sion of  the  requisite  legal  learning,  and  the  statement  of  counsel 
moving  their  admission  sufficient  evidence  that  their  private  and 
professional  character  is  fair.  The  order  of  admission  is  the  judg- 
ment of  the  court  that  tlie  parties  possess  the  requisite  qualifications 
as  attorneys  and  counsellorSj  and  are  entitled  to  appear  as  such  and 


SECT.  I.]  EX   PARTE   GARLAND.  579 

conduct  causes  therein.  From  its  entry  the  parties  become  officers 
of  the  court,  and  are  responsible  to  it  for  professional  misconduct. 
They  hold  their  office  during  good  behavior,  and  can  only  be  deprived 
of  it  for  misconduct  ascertained  and  declared  by  the  judgment  of  the 
court  after  opportunity  to  be  heard  has  been  afforded.  Ex  parte 
Heyfron,  7  How.  (Miss.)  127;  Fletcher  v.  Daingerfield,  20  Cal.  430. 
Their  admission  or  their  exclusion  is  not  the  exercise  of  a  mere  min- 
isterial power.  It  is  the  exercise  of  judicial  power,  and  has  been  so 
held  in  numerous  cases.  It  was  so  held  by  the  Court  of  Appeals  of 
New  York  in  the  matter  of  the  application  of  Cooper  for  admission. 
22  N.  Y.  81.  "  Attorneys  and  counsellors,"  said  that  court,  "are  not 
only  officers  of  the  court,  but  officers  whose  duties  relate  almost  ex- 
clusively to  proceedings  of  a  judicial  nature.  And  hence  their  ap- 
pointment may,  with  propriety,  be  intrusted  to  the  courts,  and  the 
latter  in  performing  this  duty  may  very  justly  be  considered  as 
engaged  in  the  exercise  of  their  appropriate  judicial  functions." 

In  Ex  parte  Secombe,  19  How.  9,  a  mandamus  to  the  Supreme 
Court  of  the  Territory  of  Minnesota  to  vacate  an  order  removing  an 
attorney  and  counsellor  was  denied  by  this  court,  on  the  ground  that 
the  removal  was  a  judicial  act.  "  We  are  not  aware  of  any  case," 
said  the  court,  ''  where  a  mandamus  was  issued  to  an  inferior  tri- 
bunal, commanding  it  to  reverse  or  annul  its  decision,  where  the 
decision  was  in  its  nature  a  judicial  act  and  within  the  scope  of  its 
jurisdiction  and  discretion."  And  in  the  same  case  the  court  ob- 
served, that  *' it  has  been  well  settled  by  the  rules  and  practice  of 
common-law  courts  that  it  rests  exclusively  with  the  court  to  deter- 
mine who  is  qualified  to  become  one  of  its  officers,  as  an  attorney  and 
counsellor,  and  for  what  cause  he  ought  to  be  removed." 

The  attorney  and  counsellor  being,  by  the  solemn  judicial  act  of 
the  court,  clothed  with  his  office,  does  not  hold  it  as  a  matter  of  grace 
and  favor.  The  right  which  it  confers  upon  him  to  appear  for  suitors, 
and  to  argue  causes,  is  something  more  than  a  mere  indulgence,  revo- 
cable at  the  pleasure  of  the  court,  or  at  the  command  of  the  legis- 
lature. It  is  a  right  of  which  he  can  only  be  deprived  by  the  judgment 
of  the  court,  for  moral  or  professional  delinquency. 

The  legislature  may  undoubtedly  prescribe  qualifications  for  the 
office,  to  which  he  must  conform,  as  it  may,  where  it  has  exclusive 
jurisdiction,  prescribe  qualifications  for  the  pursuit  of  any  of  the 
ordinary  avocations  of  life.  The  question,  in  this  case,  is  not  as  to 
the  power  of  Congress  to  prescribe  qualifications,  but  whether  that 
power  has  been  exercised  as  a  means  for  the  infliction  of  punishment, 
against  the  prohibition  of  the  Constitution.  That  this  result  cannot 
be  effected  indirectly  by  a  State  under  the  form  of  creating  qualifica- 
tions we  have  held  in  the  case  of  Cummings  v.  The  State  of  Missouri 
[4  Wall.  277],  and  the  reasoning  by  which  that  conclusion  was  reached 
applies  equally  to  similar  action  on  the  })art  of  Congress. 

This  view  is  strengthened  by  a  consideration  of  the  effect  of  the 


580  THE    POWERS    OF    THE    EXECUTIVE.  [CHAP.  V. 

pardon  produced  by  the  petitioner,  and  the  nature  of  the  pardoning 
power  of  the  President. 

The  Constitution  provides  that  the  President  "  shall  have  power  to 
grant  reprieves  and  pardons  for  offences  against  the  United  States, 
except  in  cases  of  impeachment."     Article  II.  §  2. 

The  power  thus  conferred  is  unlimited,  with  the  exception  stated. 
It  extends  to  every  offence  known  to  the  law,  and  may  be  exercised 
at  any  time  after  its  commission,  either  before  legal  proceedings  are 
taken,  or  during  their  pendency,  or  after  conviction  and  judgment. 
This  power  of  the  President  is  not  subject  to  legislative  control. 
Congress  can  neither  limit  the  effect  of  his  pardon,  nor  exclude  from 
its  exercise  any  class  of  offenders.  The  benign  prerogative  of  mercy 
reposed  in  him  cannot  be  fettered  by  any  legislative  restrictions. 

Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and  operation 
of  a  pardon,  and.  on  this  point  all  the  authorities  concur.  A  pardon 
reaches  both  the  punishment  prescribed  for  the  offence  and.  the  guilt 
of  the  offender;  and^when  the  pardon  is  full,  it  releases  the  punish- 
ment and.  blots  out  of  existence  the  guilt,  so  that  in  the  eye  of  the 
law  the  offender  is  as  innocent  as  if  he  had  never  committed  the 
offence.  If  granted  before  conviction,  it  prevents  any  of  the  penalties 
and  disabilities  consequent  upon  conviction  from  attaching ;  if  granted 
after  conviction,  it  removes  the  penalties  and  disabilities,  and  restores 
him  to  all  his  civil  rights  ;  it  makes  him,  as  it  were,  a  new  man,  and 
gives  him  a  new  credit  and  capacity. 

There  is  only  this  limitation  to  its  operation :  it  does  not  restore 
offices  forfeited,  or  property  or  interests  vested  in  others  in  conse- 
quence of  the  conviction  and  judgment.  4  Bl.  Com.  402;  6  Bacon's 
Abridg.  tit.  Pardon ;  Hawkins,  Book  2,  c.  37,  §§  34  and  54. 

The  pardon  produced  by  the  petitioner  is  a  full  pardon  "  for  all 
offences  by  him  committed,  arising  from  participation,  direct  or  im- 
plied, in  the  Rebellion,"  and  is  subject  to  certain  conditions  which 
have  been  complied  with.  The  effect  of  this  pardon  is  to  relieve  the 
petitioner  from  all  penalties  and  disabilities  attached  to  the  offence 
of  treason,  committed  by  his  participation  in  the  Rebellion.  So  far 
as  that  offence  is  concerned,  he  is  thus  placed  beyond  the  reach  of 
punishment  of  any  kind.  But  to  exclude  him,  by  reason  of  that 
offence,  from  continuing  in  the  enjoyment  of  a  previously  acquired 
right,  is  to  enforce  a  pnnishment  for  that  offence  notwithstanding 
the  pardon.  If  such  exclusion  can  be  effected  by  the  exaction  of  an 
expurgatory  oath  covering  the  offence,  the  pardon  may  be  avoided, 
and  that  accomplished  indirectly  which  cannot  be  reached  by  direct 
legislation.  It  is  not  within  the  constitutional  power  of  Congress 
thus  to  inflict  punishment  beyond  the  reach  of  executive  clemency. 
From  the  petitioner,  therefore,  the  oath  required  by  the  act  of  Janu- 
ary 24th,  1865,  could  not  be  exacted,  even  if  that  act  were  not  subject 
to  any  other  objection  than  the  one  thus  stated. 

It  follows,  from  the  views  express-^d,  that  the  prayer  of  the  peti- 
tioner must  be  granted. 


SECT.  II.]  HAVER   V.    TAKER.  581 

The  case  of  E.  H.  Marr  is  similar,  ia  its  inaiu  features,  to  that  of 
the  petitioner,  and  his  petition  must  also  be  granted. 

And  the  amendment  of  the  second  rule  of  the  court,  which  requires 
the  oath  prescribed  by  the  act  of  January  24th,  1865,  to  be  taken  by 
attorneys  and  counsellors,  having  been  unadvisedly  adopted,  must  be 
rescinded.  And  it  is  so  ordered. 


Section  II.    Treaties. 


HAVER   V.   YAKER. 

9  Wallace,  32.     1869. 

[The  heirs  of  one  Yaker  instituted  proceedings  in  a  State  court  of 
Kentucky  to  have  the  real  estate  of  their  ancestor  of  the  same  name, 
which  was  in  the  possession  of  his  widow,  assigned  to  them. 

It  appears  that  Yaker,  the  ancestor,  was  born  in  Switzerland,  and 
died  intestate  in  Kentucky  in  1853,  having  come  to  the  United  States 
some  years  previously  and  been  naturalized  as  a  citizen  thereof.  At 
the  time  of  his  death  said  Yaker  was  seized  of  real  estate  in  Kentucky, 
and  left  a  widow  who  was  a  resident  and  citizen  of  that  State.  The 
heirs  who  institute  the  proceeding,  and  who  are  the  next  of  kin, 
were,  at  the  time  of  Yaker's  death,  and  thereafter  remained,  subjects 
of  Switzerland  and  resident  there. 

At  the  date  of  the  death  of  said  Yaker,  which,  as  above  stated,  was 
in  the  year  1853,  the  statutes  of  Kentucky  denied  the  right  of  inherit- 
ance of  real  estate  to  aliens,  save  under  certain  conditions,  within 
which  the  heirs  of  Yaker,  who  are  the  applicants  for  the  assignment 
of  his  property,  did  not  fall.  Under  these  laws  the  widow  was 
entitled  to  the  real  estate  in  question  on  the  failure  of  heirs,  or  in 
case  the  persons  who  would  otherwise  have  been  heirs  were  not 
entitled  to  inherit  on  account  of  alienage. 

In  the  year  1850  a  treaty  had  been  made  between  the  representa- 
tives of  the  Swiss  Confederation  and  like  representatives  of  the 
United  States  (which  treaty  will  be  found  in  11  Stat,  at  Large,  587), 
by  the  terms  of  which,  as  contended  by  the  Yaker  heirs,  they  were 
entitled  to  take  and  hold  the  real  estate  in  question.  This  treaty 
provided  by  its  terms  that  it  should  be  submitted  to  the  approval  and 
ratification  of  the  proper  bodies  in  the  two  respective  States,  and  that 
this  ratification  should  be  exchanged  at  Washington  in  due  course. 
This  treaty  was  duly  submitted  by  such  representatives  to  their  re- 
spective States,  but  was  not  ratified  by  the  United  States,  nor  were 
the  ratifications  required  by  the  terras  of  the  treaty  exchanged,  until 
the  year  1855,  in  which  year  the  treaty  was  ratified  by  the  Senate  of 


582  THE  POWERS  OP  THE  EXECUTIVE.        [CHAP.  V. 

the  United  States  after  some  alterations.     The  President  thereupon 
made  the  treaty  public. 

It  was  conteiided  on  the  part  of  the  widow  that  the  treaty  under  which 
the  heirs  claimed  did  not  take  effect  until  ratification  in  1855,  which 
was  not  until  after  her  rights  to  the  real  estate  had  become  vested. 

In  this  view  of  the  case  it  would  be  immaterial  what  construction 
should  be  i)ut  upon  the  terms  of  the  treaty,  inasmuch  as  it  could  not 
be  given  a  retroactive  effect  so  as  to  cut  off  the  widow's  rights^  which 
had  already  vested  under  the  statutes  of  Kentucky. 

The  Court  of  Appeals  of  Kentucky  held  that  the  treaty  did  not 
take  effect  until  ratification,  and  therefore  decided  against  the  claims 
of  the  heirs  of  Yaker  and  in  favor  of  the  claims  of  his  widow. 

By  writ  of  error  this  decision  of  the  Court  of  Appeals  of  Kentucky 
was  brought  to  this  court  for  review.] 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

It  is  undoubtedly  true,  as  a  principle  of  international  law,  that,  as 
respects  the  rights  of  either  government  under  it,  a  treaty  is  consid- 
ered as  concluded  and -binding  from  the  date  of  its  signature.  In  this 
regard  the  exchange  of  ratifications  has  a  retroactive  effect,  confirm- 
ing the  treaty  from  its  date.  Wheaton's  International  Law,  by  Dana, 
336,  bottom  paging.  But  a  different  rule  prevails  where  the  treaty 
operates  on  individual  rights.  The  principle  of  relation  does  not 
apply  to  rights  of  this  character,  which  were  vested  before  the 
treaty  was  ratified.  In  so  far  as  it  affects  them,  it  is  not  considered 
as  concluded  until  there  is  an  exchange  of  ratifications,  and  this  we 
understand  to  have  been  decided  by  this  court  in  Arredondo's  case,  re- 
ported in  6th  Peters,  p.  749.  The  reason  of  the  rule  is  apparent.  In 
this  country,  a  treaty  is  something  more  than  a  contract,  for  the  Federal 
Constitution  declares  it  to  be  the  law  of  the  land.  If  so,  before  it 
can  become  a  law,  the  Senate,  in  whom  rests  the  authority  to  ratify 
it,  must  agree  to  it.  But  the  Senate  are  not  required  to  adopt  or 
reject  it  as  a  whole,  but  may  modify  or  amend  it,  as  was  done  with 
the  treaty  under  consideration.  As  the  individual  citizen,  on  whose 
rights  of  property  it  operates,  has  no  means  of  knowing  anything  of 
it  while  before  the  Senate,  it  would  be  wrong  in  principle  to  hold 
him  bound  by  it,  as  the  law  of  the  land,  until  it  was  ratified  and  pro- 
claimed. And  to  construe  the  law,  so  as  to  make  the  ratification  of 
the  treaty  relate  back  to  its  signing,  thereby  divesting  a  title  already 
vested,  would  be  manifestly  unjust,  and  cannot  be  sanctioned. 

These  views  dispose  of  this  case,  and  we  are  not  required  to  deter- 
mine whether  this  treatv,  if  it  had  become  a  law  at  an  earlier  date, 
would  have  secured  the  plaintiffs  in  error  the  interest  which  they 
claim  in  the  real  estate  left  by  Yaker  at  his  death. 

Judgment  affirmed. * 

^  In  Foster  v.  Neilsov.  2  Pet.  25-3  (1829),  which  was  a  case  involving  conflicting 
claims  of  Spain  and  the  United  States  to  certain  territory  in  the  eastern  district  of 
Louisiana  which  the  United  States   claimed  under  the   treaty  for  the  purchase   of 


SECT,  n.]  THE    PEOPLE   V.   GEEKE.  583 


THE  PEOPLE,  EX  rel.  THE  ATTORNEY-GENERAL 
V.   GERKE. 

5  California,  381.     1855. 

Appeal  from  the  District  Court  of  the  Fourth  Judicial  District, 
San  Francisco  County. 

On  the  23d  of  August,  1853,  one  Auguste  Deck,  a  citizen  of  Prussia, 
died  intestate,  in  the  city  of  San  Francisco,  leaving,  undisposed  of,  a 
large  amount  of  real  estate. 

On  the  14th  of  September  following,  letters  of  administration  were 
granted  by  the  Probate  Court  to  the  defendant,  Gerke. 

Clark  afterwards  purchased  from  the  absent  heirs  a  large  portion 
of  the  property. 

An  information  was  filed  by  the  Attorney-General  in  the  court 
below,  citing  the  defendants  to  show  cause  why  Deck's  estate  should 
not  escheat  to  the  State  of  California.  The  court  below  entered 
judgment  ^^ra/orwia,  in  favor  of  the  People.     Defendants  appealed. 

Heydejstfeldt,  J.,  delivered  the  opinion  of  the  court. 

By  a  convention  between  the  United  States  and  the  Kingdom  of 
Prussia,  made  in  the  year  1828,  the  fourteenth  article  provides,  "And 
when  on  the  death  of  any  person  holding  real  estate  within  the  ter- 
ritory of  the  one  party,  such  real  estate  would,  by  the  laws  of  the 
land,  descend  on  a  citizen  or  subject  of  the  other,  were  he  not 
disqualified  by  alienage,  such  citizen  or  subject  shall  be  allowed  a 
reasonable  time  to  sell  the  same,  and  to  withdraw  the  proceeds  with- 
out molestation." 

The  Attorney-General,  in  support  of  the  information  filed  in  this 
case,  denies  the  power  of  the  Federal  government  to  make  such  a 
provision  by  treaty,  and  the  determination  of  this  case  depends  upon 
the  solution  of  that  question.     Cases   have  frequently  arisen  where 

Louisiana,  and  the  validity  of  certain  Spanish  grants  thereof  which  were  the  subject 
of  adjustment  in  a  subsequent  treaty  between  the  two  powers  (made  in  1818),  in  sec.  8 
of  which  it  was  stipulated  that  grants  of  land  made  prior  to  a  date  named  sliall  J)e 
ratified  and  confirmed,  &c.,  it  was  held  that  the  obligation  of  the  provision  was  upon 
the  government  of  the  United  States,  wliich  undertook  thereby  to  pass  acts  which 
should  ratify  and  confirm  them.  Maksiiall,  C.  J.,  in  rendering  the  opinion  of  the  court, 
uses  this  language  :  — 

"  A  treaty  is,  in  its  nature,  a  contract  between  two  nations,  not  a  legislative  act. 
It  does  not  generally  effect,  of  itself,  tlie  object  to  be  accomplished,  especially  so  far 
as  its  operation  is  infra-territorial ;  but  is  carried  into  execution  by  the  sovereign 
power  of  the  respective  parties  to  the  instrument. 

"  lu  the  United  States,  a  different  principle  is  established.  Our  Constitution  declares 
a  treaty  to  be  the  law  of  the  land.  It  is,  consequently,  to  be  regarded  in  courts  of 
justice  as  equivalent  to  an  act  of  the  legislature,  whenever  it  operates  of  itself  with- 
out the  aid  of  any  legislative  provision.  But  when  the  terms  of  the  stipulation  import 
a  contract,  when  either  of  the  jiarties  engages  to  perform  a  particular  act,  the  treaty 
addre.>ses  itself  to  the  political,  not  the  judicial  department;  and  the  legislature  must 
execute  the  contract  before  it  can  become  a  rule  fur  tlie  court." 


584  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

aliens  have  claimed  to  inherit  by  virtue  of  treaty  provisions  anal- 
ogous to  the  one  under  consideration,  and  in  all  of  them,  so  far  as  I 
have  examined,  the  stipulations  were  enforced  in  favor  of  the  foreign 
claimants.  See  2  Wheat.  259;  4  ibid.  453  ;  8  ibid.  464  j  9  ibid.  489; 
10  ibid.  181. 

But  in  none  of  these  cases  was  the  question  raised  as  to  the  power 
of  the  Federal  government  to  make  the  treaty.  It  has  been  the 
practice  of  the  government  from  an  early  period  after  the  ratification 
of  the  Constitution,  and  its  power  is  now,  I  believe,  for  the  first  time 
disputed. 

The  language  which  grants  the  power  to  make  treaties  contains  no 
words  of  limitation;  it  does  not  follow  that  the  power  is  unlimited. 
It  must  be  subject  to  the  general  rule,  that  an  instrument  is  to  be 
construed  so  as  to  reconcile  and  give  meaning  and  effect  to  all  its 
parts.  If  it  were  otherwise,  the  most  important  limitation  upon  the 
powers  of  the  Federal  government  Avould  be  ineffectual,  and  the  re- 
served rights  of  the  States  would  be  subverted.  This  principle  of 
construction  as  applied,  not  only  in  reference  to  the  Constitution 
of  the  United  States,  but  particularly  in  the  relation  of  all  the  rest  of 
it,  to  the  treaty -making  grant,  was  recognized  both  by  Mr.  Jefferson 
and  John  Adams,  two  leaders  of  opposite  schools  of  construction. 
See  Jefferson's  Works,  Vol.  III.  p.  135;  and  Vol.  VI.  p.  560. 

It  may,  therefore,  be  assumed  that,  aside  from  the  limitations  and 
prohibitions  of  the  Constitution  upon  the  powers  of  the  Federal  gov- 
ernment, "the  power  of  treaty  was  given,  without  restraining  it  to 
particular  objects,  in  as  plenipotentiary  a  form  as  held  by  any  sov- 
ereign in  any  other  society."  This  principle,  as  broadly  as  I  have 
deemed  proper  to  lay  it  down,  results  from  the  form  and  necessities 
of  our  government,  as  elicited  by  a  general  view  of  the  Federal  com- 
pact. Before  the  compact,  the  States  had  the  power  of  treaty -making 
as  potentially  as  any  power  on  earth ;  it  extended  to  every  subject 
whatever.  By  the  compact,  they  expressly  granted  it  to  the  Federal 
government  in  general  terms,  and  prohibited  it  to  themselves. 

The  general  government  must,  tlierefore,  hold  it  as  fully  as  the 
States  held  who  granted  it,  with  the  exceptions  which  necessarily 
flow  from  a  proper  construction  of  the  other  powers  granted,  and 
those  prohibited  by  the  Constitution.  The  only  questions,  then, 
which  can  arise  in  the  consideration  of  the  validity  of  a  treaty  are : 
First,  Is  it  a  proper  subject  of  treaty  according  to  international  law 
or  the  usage  and  practice  of  civilized  nations  ?  Second,  Is  it  pro- 
hibited by  any  of  the  limitations  in  the  Constitution  ? 

Taking  for  illustration  the  present  subject  of  treaty,  no  one  will 
deny  that,  to  the  commercial  States  of  the  Union,  and  indeed  to  the 
citizens  of  any  State  who  are  engaged  in  foreign  commerce,  a  stipula- 
tion to  remove  the  disability  of  aliens  to  hold  property  is  of  para- 
mount importance,  or,  at  any  rate,  it  may  be  so  considered  by  the 
States,  and  demanded  as  a  part  of  their  commercial  polity. 


SECT.  II.]  THE  PEOPLE  V.   GERKE.  685 

Now,  as  bj  the  compact  the  States  are  absolutely  prohibited  from 
making  treaties,  if  the  general  government  has  not  the  power,  then 
we  must  admit  a  lameness  and  incompleteness  in  our  whole  system, 
which  renders  us  inferior  to  any  other  enlightened  nation,  in  the 
power  and  ability  to  advance  the  prosperity  of  the  people  we  govern, 

Mr.  Calhoun,  in  his  discourse  on  the  Constitution  and  Government 
of  the  United  States,  has  given  to  this  power  a  full  consideration, 
and  I  cannot  doubt  that  the  view  which  I  have  taken  is  sustained  by 
his  reasoning.  According  to  his  opinion,  the  following  may  be  classed 
as  the  limitations  on  the  treaty-making  power :  First,  It  is  limited 
strictly  to  questions  inter  alios,  "all  such  clearly  appertain  to  it." 
Second,  "  By  all  the  provisions  of  the  Constitution  which  inhibit  cer- 
tain acts  from  being  done  by  the  government  or  any  of  its  depart- 
ments." Third,  "  By  such  provisions  of  the  Constitution  as  direct 
certain  acts  to  be  done  in  a  particular  way,  and  which  prohibit  the 
contrary."  Fourth,  "  It  can  enter  into  no  stipulation  calculated  to 
change  the  character  of  the  government,  or  to  do  that  which  can  only 
be  done  by  the  Constitution-making  power ;  or  which  is  inconsistent 
with  the  nature  and  structure  of  the  government  or  the  objects  for 
which  it  was  formed." 

Having  stated  these  as  the  only  limitations,  the  author  adds, 
"Within  these  limits  all  questions  which  may  arise  between  us  and 
other  powers,  be  the  subject-matter  what  it  may,  fall  within  the 
limits  of  the  treaty-making  power,  and  may  be  adjusted  by  it." 

One  of  the  arguments  at  the  bar  against  the  extent  of  this  power 
of  treaty  is,  that  it  permits  the  Federal  government  to  control  the 
internal  policy  of  the  States,  and,  in  the  present  case,  to  alter  ma- 
terially the  statutes  of  distribution. 

If  this  was  so  to  the  full  extent  claimed,  it  might  be  a  sufficient 
answer  to  say,  that  it  is  one  of  the  results  of  the  compact,  and,  if  the 
grant  be  considered  too  improvident  for  the  safety  of  the  States,  the 
evil  can  be  remedied  by  the  Constitution-making  power.  I  think, 
however,  that  no  such  consequence  follows  as  is  insisted.  The 
statutes  of  distribution  are  not  altered  or  affected.  Alienage  is  the 
subject  of  the  treaty.  Its  disability  results  from  political  reasons 
which  arose  at  an  early  period  of  the  history  of  civilization,  and 
which  the  enlightened  advancement  of  modern  times,  and  clianges  in 
the  political  and  social  condition  of  nations,  have  rendered  without 
force  or  consequence.  The  disability  to  succeed  to  property  is 
alone  removed,  the  character  of  the  person  is  made  politically  to  un- 
dergo a  change,  and  then  the  statute  of  distribution  is  left  to  its  full 
effect,  unaltered  and  unimpaired  in  word  or  sense.  If  there  is  one 
object  more  than  another  which  belongs  to  our  political  relations,  and 
which  ought  to  be  the  subject  of  treaty  regulations,  it  is  the  exten- 
sion of  this  comity  which  is  so  highly  favored  by  the  liberal  spirit  of 
the  age,  and  so  conducive  in  its  tendency  to  the  peace  and  amity  of 
nations. 


586  THE   POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

Even  if  the  effect  of  this  power  was  to  abrogate  to  some  extent  the 
legislation  of  the  States,  we  have  authority  for  admitting  it,  if  it  does 
not  exceed  the  limitations  which  we  have  cited  from  the  work  of  Mr. 
Calhoun,  and  laid  down  as  the  rule  to  which  we  yield  our  assent. 

Daring  the  War  of  the  Revolution,  the  States  had  passed  acts  of 
confiscation;  acts  against  the  collection  of  debts  due  to  the  subjects 
of  Great  Britain ;  and  acts  for  the  punishment  of  treason.  By  the 
treaty  of  peace,  the  effects  of  these  various  acts  were  provided 
against,  and  as  late  as  1792,  long  after  the  ratification  of  the  Con- 
stitution,  Mr.  Jefferson,  in  answer  to  the  complaint  of  the  British 
Minister,  Mr.  Hammond,  distinctly  recognized  the  doctrine  that 
treaties  are  the  supreme  law  of  the  land,  and  that  State  legislation 
must  yield  to  them ;  and  he  therein  cites  the  acts  of  State  legis- 
latures and  the  decisions  of  State  judges,  who  all  conform  to  the 
same  opinion.     See  Vol.  III.,  Jefferson's  Works,  365. 

I  can  see  no  danger  which  can  result  from  yielding  to  the  Federal 
government  the  full  extent  of  powers  which  it  may  claim  from  the 
plain  language,  intent,  and  meaning  of  the  grant  under  consideration. 
Upon  some  subjects,  the  policy  of  a  State  government,  as  shown  by 
her  legislation,  is  dependent  upon  th^  policy  of  foreign  governments, 
and  would  be  readily  changed  upon  the  principle  of  mutual  con- 
cession. This  can  only  be  effected  by  the  action  of  that  branch  of 
the  State  sovereignty  known  as  the  general  government,  and  when 
effected,  the  State  policy  must  give  way  to  that  adopted  by  the  gov- 
ernmental agent  of  her  foreign  relations. 

It  results  from  these  views  that  the  treaty  of  1828,  with  Prussia, 
is  valid,  and  that  aliens,  subjects  of  Prussia,  are  protected  by  its 
provisions. 

The  judgment  is  reversed,  and  the  cause  remanded.^ 

^  The  concurring  opinion  of  Bryan,  J.,  is  omitted. 

This  case  is  cited  and  quoted  from  with  approval  in  Opel  v.  Shoup,  100  Iowa,  407 
(1896),  in  which  the  same  question  was  considered  and  a  similar  conclusion  was  reached; 
and  also  in  Wuuderle  v.  Wunderle,  144  111.  40  (1893).  That  the  provisions  of  a  treaty 
will  control  in  such  case,  see  Ilauenstein  i'.  Lynham,  100  U .  S.  483,  supra,  p.  "2,  and  note. 

In  Geofroy  v.  Riggs,  133  U.  S.  258  (1890),  the  right  of  a  Frenchman  to  inherit 
property  in  the  District  of  Columbia  was  held  to  be  regulated  by  a  treaty  witii  France. 
There  was  no  question  as  between  the  provisions  of  the  treaty  and  any  statute ;  but 
Mr.  Justice  Field,  rendering  the  opinion  of  the  court,  uses  this  language  :  — 

"  That  the  treaty  power  of  tlie  United  States  extends  to  all  proper  subjects  of  nego- 
tiation between  our  government  and  the  governments  of  other  nations,  is  clear.  It  is 
also  clear  that  the  protection  which  should  be  afforded  to  the  citizens  of  one  country 
owning  property  in  another,  and  the  manner  in  which  that  property  may  be  transferred, 
devised,  or  inherited,  are  fitting  subjects  for  such  negotiation  and  of  regulation  by 
mutual  stipulations  between  the  two  countries.  As  commercial  intercourse  increases 
between  different  countries,  the  residence  of  citizens  of  one  country  within  the  ter- 
ritory of  the  other  naturally  follows,  and  the  removal  of  their  disability  from  alienage 
to  hold,  transfer,  and  inlierit  property  in  such  cases  tends  to  promote  amicable  rela- 
tions. Such  removal  has  been  within  the  present  century  the  frequent  subject  of 
treaty  arrangement.  The  treaty  power,  as  expressed  in  the  Constitution,  is  in  terms 
unlimited,  except  by  those  restraints  which  are  found  in  that  instrument  against  the 


SECT.  II.]  HEAD   MONEY   CASES.  587 

HEAD  MONEY   CASES. 

112  United  States,  580.     1884. 

[Five  cases  were  tried  in  the  Circuit  Court  of  the  United  States  for 
tlie  Eastern  District  of  New  York,  in  which  it  was  sought  to  recover 
back  moneys  paid  under  protest  to  the  collector  of  the  port  of  New 
York  by  the  various  plaintiffs.  The  money  was  claimed  by  the  col- 
lector as  duty  at  fifty  cents  per  head  on  passengers  brouglit  to  the 
city  of  New  York,  the  claim  being  based  on  the  provisions  of  the  act 
of  August  3,  1882,  entitled  "An  Act  to  regulate  immigration"  (22 
Stat.  c.  376,  p.  214),  requiring  the  payment  of  that  amount  of  duty 
for  each  passenger  not  a  citizen  of  the  United  States,  who  shall  come 
by  steam  or  sail  vessel  from  a  foreign  port  to  any  port  within  the 
United  States.  Judgments  for  plaintiffs  (18  Fed.  E..  135)  were 
brought  to  this  court  on  writ  of  error.] 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

[The  objection  that  the  act  is  not  within  the  power  of  Congress  is 
first  considered,  and  the  conclusion  is  reached  that  it  is  within  the 
power  to  regulate  foreign  commerce,  reference  being  made  to  Hender- 
son V.  The  Mayor  of  New  York,  92  U.  S.  259,  supra,  243.] 

Another  objection  to  the  validity  of  this  act  of  Congress  is  that 
it  violates  provisions  contained  in  numerous  treaties  of  our  govern- 
ment with  friendly  nations.  And  several  of  the  articles  of  these 
treaties  are  annexed  to  the  careful  brief  of  counsel.  We  are  not 
satisfied  that  this  act  of  Congress  violates  any  of  these  treaties,  on 
any  just  construction  of  them.  Though  laws  similar  to  this  have 
long  been  enforced  by  the  State  of  New  York  in  the  great  metropolis 
of  foreign  trade,  where  four-fifths  of  these  passengers  have  been 
landed,  no  complaint  has  been  made  by  any  foreign  nation  to  ours, 
of  the  violation  of  treaty  obligations  by  the  enforcement  of  those 
laws. 

I)ut  we  do  not  place  the  defence  of  the  act  of  Congress  against  this 
objection  upon  that  suggestion. 

We  are  of  opinion  tliat,  so  far  as  the  provisions  in  that  act  may  be 
found  to  be  in  conflict  with  any  treaty  with  a  foreign  nation,  they 

action  of  the  government  or  f)f  its  departments,  and  those  arising  from  the  nature  of 
the  government  itself  and  of  that  of  the  States.  It  would  not  be  contended  that  it 
extends  so  far  as  to  autliurize  what  the  Constitution  forbids,  or  a  change  in  tlie  ciiar- 
acter  of  the  government  or  in  tluit  of  one  of  the  States,  or  a  cession  of  any  portion  of 
the  territory  of  tlie  latter  without  its  consent.  Fort  Leavenworth  Railroad  Co.  j\ 
Lowe,  114  U.  S.  525,  541.  But  with  these  exceptions,  it  is  not  jierceived  that  there  is 
any  limit  to  tlie  questions  which  can  he  adjusted  touching  any  matter  whicli  is  jirop- 
erly  tlie  subject  of  negotiation  with  a  foreign  country.  Ware  (•.  Hylton,  3  Dall.  199 ; 
Chirac  r.  Chirac,  2  Wheat.  259  ;  Ilaueustein  v.  Lyuham,  100  U.  S.  483;  8  Opinions 
Altjs.-Geu.  417;  The  People  v.  Gerke,  5  Cal.  381."" 


588  THE   POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

must  prevail  in  all  the  judicial  courts  of  this  country.  We  had 
supposed  that  the  question  here  raised  was  set  at  rest  in  this  court 
by  the  decision  in  the  case  of  The  Cherokee  Tobacco,  11  Wall.  616. 
It  is  true,  as  suggested  by  counsel,  that  three  judges  of  the  court  did 
not  sit  in  the  case,  and  two  others  dissented.  But  six  judges  took 
part  in  the  decision,  and  the  two  who  dissented  placed  that  dissent 
upon  the  ground  that  Congress  did  not  intend  that  the  tax  on  tobacco 
should  extend  to  the  Cherokee  tribe.  They  referred  to  the  existence 
of  the  treaty  which  would  be  violated  if  the  statute  was  so  construed 
as  persuasive  against  such  a  construction,  but  they  nowhere  inti- 
mated that,  if  the  statute  was  correctly  construed  by  the  court,  it 
was  void  because  it  conflicted  with  the  treaty,  which  they  would  have 
done  if  they  had  held  that  view.  On  the  point  now  in  controversy 
it  was  therefore  the  opinion  of  all  the  judges  who  heard  the  case. 
See  United  States  v.  McBratney,  104  U.  S.  621-3. 

The  precise  question  involved  here,  namely,  a  supposed  conflict 
between  an  act  of  Congress,  imposing  a  customs  duty,  and  a  treaty 
with  Russia  on  that  subject,  in  force  wdien  the  act  was  passed,  came 
before  the  Circuit  Court  for  the  District  of  Massachusetts  in  1855. 
It  received  the  consideration  of  that  eminent  jurist,  Mr.  Justice 
Curtis  of  this  court,  who  in  a  very  learned  opinion  exhausted  the 
sources  of  argument  on  the  subject,  holding  that  if  there  were 
such  conflict  the  act  of  Congress  must  prevail  in  a  judicial  forum. 
Taylor  v.  Morton,  2  Curtis,  454.  And  Mr.  Justice  Field,  in  a  very 
recent  case  in  the  Ninth  Circuit,  that  of  Ah  Lung,  18  Fed.  Eep.  28, 
on  a  writ  of  habeas  corpus,  has  delivered  an  opinion  sustaining  the 
same  doctrine  in  reference  to  a  statute  regulating  the  immigration 
of  Chinamen  into  this  country.  In  the  Clinton  Bridge  Case,  Woolw. 
150,  156,  the  writer  of  this  opinion  expressed  the  same  views  as 
did  Judge  Woodruff,  on  full  consideration,  in  Ropes  v.  Clinch,  8 
Blatch.  304,  and  Judge  Wallace,  in  the  same  circuit,  in  Bartram  v. 
Robertson,  15  Fed.  Rep.  212. 

It  is  very  difficult  to  understand  how  any  different  doctrine  can  be 
sustained. 

A  treaty  is  primarily  a  compact  between  independent  nations. 
It  depends  for  the  enforcement  of  its  provisions  on  the  interest 
and  the  honor  of  the  governments  which  are  parties  to  it.  If 
these  fail,  its  infraction  becomes  the  subject  of  international  negotia- 
tions and  reclamations,  so  far  as  the  injured  party  chooses  to  seek 
redress,  which  may  in  the  end  be  enforced  by  actual  war.  It  is 
obvious  that  with  all  this  the  judicial  courts  have  nothing  to  do  and 
can  give  no  redress.  But  a  treaty  may  also  contain  provisions 
which  confer  certain  rights  upon  the  citizens  or  subjects  of  one  of 
the  nations  residing  in  the  territorial  limits  of  the  other,  which 
partake  of  the  nature  of  municipal  law,  and  which  are  capable  of 
enforcement  as  between  private  parties  in  the  courts  of  the  coun- 
trv.     An   illustration   of   this  character  is  found  in  treaties,  which 


SECT.  II.]  HEAD   MONEY   CASES.  589 

regulate  the  mutual  rights  of  citizens  and  subjects  of  the  contract- 
ing nations  in  regard  to  rights  of  property  by  descent  or  inheritance, 
when  the  individuals  concerned  are  aliens.  The  Constitution  of  the 
United  States  places  such  provisions  as  these  in  the  same  category 
as  other  laws  of  Congress  by  its  declaration  that  "  this  Constitution 
and  the  laws  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made  under  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land."  A  treaty,  then,  is  a  law  of  the  land 
as  an  act  of  Congress  is,  whenever  its  provisions  prescribe  a  rule  by 
which  the  rights  of  the  private  citizen  or  subject  may  be  determined. 
And  when  such  rights  are  of  a  nature  to  be  enforced  in  a  court  of 
justice,  that  court  resorts  to  the  treaty  for  a  rule  of  decision  for  the 
case  before  it  as  it  would  to  a  statute. 

But  even  in  this  aspect  of  the  case  there  is  nothing  in  this  law 
which  makes  it  irrepealable  or  unchangeable.  The  Constitution 
gives  it  no  superiority  over  an  act  of  Congress  in  this  respect, 
which  may  be  repealed  or  modified  by  an  act  of  a  later  date.  Nor 
is  there  anything  in  its  essential  character,  or  in  the  branches  of  the 
government  by  which  the  treaty  is  made,  which  gives  it  this  superior 
sanctity. 

A  treaty  is  made  by  the  President  and  the  Senate.  Statutes  are 
made  by  the  President,  the  Senate,  and  the  House  of  Representa- 
tives. The  addition  of  the  latter  body  to  the  other  two  in  making 
a  law  certainly  does  not  render  it  less  entitled  to  respect  in  the 
matter  of  its  repeal  or  modification  than  a  treaty  made  by  the  other 
two.  If  there  be  any  difference  in  this  regard,  it  would  seem  to  be 
in  favor  of  an  act  in  which  all  three  of  the  bodies  participate.  And 
such  is,  in  fact,  the  case  in  a  declaration  of  war,  which  must  be 
made  by  Congress,  and  which,  when  made,  usually  suspends  or 
destroys  existing  treaties  between  the  nations  thus  at  war. 

In  short,  we  are  of  opinion  that,  so  far  as  a  treaty  made  by  the 
United  States  with  any  foreign  nation  can  become  the  subject  of 
judicial  cognizance  in  the  courts  of  this  country,  it  is  subject  to 
such  acts  as  Congress  may  pass  for  its  enforcement,  modification, 
or  repeal. 

Other  objections  are  made  to  this  statute.  Some  of  these  relate, 
not  to  the  power  of  Congress  to  pass  the  act,  but  to  the  expediency 
or  justice  of  the  measure,  of  which  Congress,  and  not  the  courts,  are 
the  sole  judges — such  as  its  unequal  operation  on  persons  not  pau- 
pers or  criminals,  and  its  effect  in  compelling  the  ultimate  payment 
of  the  sum  demanded  for  each  passenger  by  that  passenger  himself. 
Also,  that  the  money  is  to  be  drawn  from  the  treasury  without  an 
appropriation  by  Congress.  The  act  itself  makes  the  appropriation, 
and  even  if  this  be  not  warranted  by  the  Constitution,  it  does  not 
make  void  the  demand  for  contribution,  which  may  yet  be  appropri- 
ated by  Congress,  if  that  be  necessary,  by  another  statute. 

It  is  enough  to  say  that,  Congress  having  the  power  to  pass  a  law 


590  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

regulating  immigration  as  a  part  of  the  commerce  of  this  country 
with  foreign  nations,  we  see  nothing  in  the  statute  by  which  it 
has  here  exercised  that  power,  forbidden  by  any  other  part  of  the 
Constitution. 

The  judgment  of  the  Circuit  Court  in  all  the  cases  is 

Affirmed. 


Section   III.  —  Diplomatic   Relations  and  Political 

Questions. 


JONES   V,   UNITED   STATES. 

137  United  States,  202.     1890. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  was  an  indictment,  found  in  the  District  Court  of  the  United 
States  for  the  District  of  Maryland,  and  remitted  to  the  Circuit 
Court  under  Rev.  Stat.  §  1039,  alleging  that  Henry  Jones,  late  of 
that  district,  on  September  14,  1889,  "  at  Navassa  Island,  a  place 
which  then  and  there  was  under  the  sole  and  exclusive  jurisdiction 
of  the  United  States,  and  out  of  the  jurisdiction  of  any  particular 
State  or  district  of  the  United  States,  the  same  being,  at  the  time  of 
the  committing  of  the  offences  in  the  manner  and  form  as  hereinafter 
stated  by  the  persons  hereinafter  named,  an  island  situated  in  the 
Caribbean  Sea,  and  named  Navassa  Island,  and  which  was  then  and 
there  recognized  and  considered  by  the  United  States  as  containing 
a  deposit  of  guano,  within  the  meaning  and  terms  of  the  laws  of  the 
United  States  relating  to  such  islands,  and  which  was  then  and  there 
recognized  and  considered  by  the  United  States  as  appertaining  to 
the  United  States,  and  which  was  also  then  and  there  in  the  posses- 
sion of  the  United  States,  under  the  laws  of  the  United  States  then 
and  there  in  force  relating  to  such  islands,"  murdered  one  Thomas 
N.  Foster,  by  giving  him  three  mortal  blows  with  an  axe,  of  which 
he  there  died  on  the  same  day ;  and  that  other  persons  named  aided 
and  abetted  in  the  murder.  The  indictment,  after  charging  tlie 
murder  in  usual  form,  alleged  that  the  District  of  Maryland  was  the 
District  of  the  United  States  into  which  the  defendant  was  after- 
wards first  brought  from  the  Island  of  Navassa. 

[The  opinion  contains  a  statement  of  the  legislation  by  Congress 
(now  embodied  in  R.  S.  §§  5570-5578)  relating  to  the  discovery  and 
occupation  by  citizens  of  the  United  States  of  guano  islands  not 
within  the  lawful  jurisdiction  of  any  other  government,  which  pro- 
vides for  the  extension  by  the  President  of  the  jurisdiction  of  the 


SECT.  III.]  JONES   V.    UNITED   STATES.  591 

United  States  over  islands  so  occupied.  Documents  are  set  out  which 
were  relied  on  as  showing  that  Navassa  Island  had  been  recognized 
and  considered  by  the  United  States  as  appurtenant  to  it  and  in  its 
possession  within  the  provisions  of  such  legislation,  and  it  Avas 
claimed  that  the  Federal  court  had  jurisdiction  to  try  Jones  for  the 
act  committed  on  that  island  ander  E.  S.  §  5339,  providing  for  the 
punishment  of  murder  committed  "  within  any  fort,  arsenal,  dock- 
yard, magazine,  or  in  any  other  place  or  district  of  country  under  the 
exclusive  jurisdiction  of  the  United  States."] 

By  the  law  of  nations,  recognized  by  all  civilized  States,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  or  conquest ;  and  when  citizens,  or  subjects  of  one 
nation,  in  its  name,  and  by  its  authority  or  with  its  assent,  take  and 
hold  actual,  continuous,  and  useful  possession  (although  only  for  the 
purpose  of  carrying  on  a  particular  business,  such  as  catching  and 
curing  fish,  or  working  mines)  of  territory  unoccupied  by  any  other 
government  or  its  citizens,  the  nation  to  which  they  belong  may- 
exercise  such  jurisdiction  and  for  such  period  as  it  sees  fit  over  terri- 
tory so  acquired.  This  principle  affords  ample  warrant  for  the  legis- 
lation of  Congress  concerning  guano  islands.  Vattel,  lib.  1,  c.  18; 
Wheaton  on  International  Law  (8th  ed.),  §§  161,  165,  176,  note  104; 
Halleck  on  International  Law,  c.  6,  §§  7,  15;  1  Phillimore  on  Inter- 
national Law  (3d  ed.),  §§  227,  229,  230,  232,  242;  1  Calvo  Droit  Inter- 
national (4th  ed.),  §§  266,  277,  300;  Whiton  v.  Albany  Ins.  Co.,  109 
Mass.  24,  31. 

Who  is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not  a 
judicial,  but  a  political  question,  the  determination  of  which  by  the 
legislative  and  executive  departments  of  any  government  conclusively 
binds  the  judges,  as  well  as  all  other  officers,  citizens,  and  subjects  of 
that  government.  This  principle  has  always  been  upheld  by  this 
court,  and  has  been  affirmed  under  a  great  variety  of  circumstances. 
Gelston  v.  Hoyt,  3  Wheat.  246,  324;  United  States  v.  Palmer, 
3  Wheat.  610  ;  The  Divina  Fastora,  4  Wheat.  52  ;  Foster  v.  Neilson, 
2  Pet.  253,  307,  309 ;  Keane  y.  McDonough,  8  Pet.  308 ;  Garcia  v.  Lee, 
12  Pet.  511,  520;  Williams  ;;.  Suffolk  Ins.  Co.,  13  Pet.  415;  United 
States  V.  Yorba,  1  Wall.  412,  423;  United  States  v.  Lynde,  11  Wall. 
632,  638.  It  is  equally  well  settled  in  England.  The  Pelican,  Edw. 
Adm.  appx.  D;  Taylor  v.  Barclay,  2  Sim.  213;  Emperor  of  Austria 
V.  Day,  3  De  G.,  F.  &  J.  217,  221,  233  ;  Kepublic  of  Peru  v.  Peruvian 
Guano  Co.,  36  Ch.  D.  489,  497;  Republic  of  Peru  v.  Dreyfus,  38  Ch. 
D.  348,  356,  359. 

In  Williams  v.  Suffolk  Ins.  Co.,  in  an  action  on  a  policy  of  insur- 
ance, the  following  question  arose  in  the  Circuit  Court,  and  was 
brought  up  by  a  certificate  of  division  of  opinion  between  the  judges 
thereof :  — 

*'  Whether,  inasmuch  as  the  American  government  has  insisted  and 
does  still  insist,  through  its  regular  executive  authority,  that  the 


592  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

Falkland  Islands  do  not  constitute  any  part  of  the  dominions  within 
the  sovereignty  of  the  government  of  Buenos  Ayres,  and  that  the 
seal  fishery  at  those  islands  is  a  trade  free  and  lawful  to  the  citizens 
of  the  United  States,  and  beyond  the  competency  of  the  Buenos 
Ayrean  government  to  regulate,  prohibit,  or  punish  ;  it  is  competent 
for  the  Circuit  Court  in  this  cause  to  inquire  into  and  ascertain  by 
other  evidence  the  title  of  said  government  of  Buenos  Ayres  to  the 
sovereignty  of  the  said  Falkland  Islands,  and,  if  such  evidence  satis- 
fies the  court,  to  decide  against  the  doctrines  and  claims  set  up  and 
supported  by  the  American  government  on  this  subject;  or  whether 
the  action  of  the  American  government  on  this  subject  is  binding 
and  conclusive  on  this  court  as  to  whom  the  sovereignty  of  those 
islands  belongs."     13  Pet.  417. 

This  court  held  that  the  action  of  the  executive  department,  on  the 
question  to  whom  the  sovereignty  of  those  islands  belonged,  was 
binding  and  conclusive  upon  the  courts  of  the  United  States,  saying : 
*'  Can  there  be  any  doubt  that  when  the  executive  branch  of  the  gov- 
ernment, which  is  charged  with  our  foreign  relations,  shall  in  its 
correspondence  with  a  foreign  nation  assume  a  fact  in  regard  to  the 
sovereignty  of  any  island  or  country,  it  is  conclusive  on  the  judicial 
department  ?  And  in  this  view  it  is  not  material  to  inquire,  nor  is  it 
the  province  of  the  court  to  determine,  whether  the  executive  be 
right  or  wrong.  It  is  enough  to  know,  that  in  the  exercise  of  his 
constitutional  functions  he  has  decided  the  question.  Having  done 
this  under  the  responsibilities  which  belong  to  him,  it  is  obligatory 
on  the  people  and  government  of  the  Union."  "In  the  present  case, 
as  the  executive  in  his  message,  and  in  his  correspondence  with  the 
government  of  Buenos  Ayres,  has  denied  the  jurisdiction  which  it 
has  assumed  to  exercise  over  the  Falkland  Islands,  the  fact  must  be 
taken  and  acted  on  by  this  court  as  thus  asserted  and  maintained." 
13  Pet.  420. 

All  courts  of  justice  are  bound  to  take  judicial  notice  of  the  terri- 
torial extent  of  the  jurisdiction  exercised  by  the  government  whose 
laws  they  administer,  or  of  its  recognition  or  denial  of  the  sover- 
eignty of  a  foreign  power,  as  appearing  from  the  public  acts  of  the 
legislature  and  executive,  although  those  acts  are  not  formally  put 
in  evidence,  nor  in  accord  with  the  pleadings.  United  States  v. 
Keynes,  9  How.  127  ;  Kennett  v.  Chambers,  14  How.  38  ;  Hoyt  v. 
Eussell,  117  U.  S.  401,  404 ;  Coffee  v.  Grover,  123  U.  S.  1 ;  State 
V.  Dunwell,  3  R.  I.  127 ;  State  v.  Wagner,  61  Maine,  178 ;  Taylor  v. 
Barclay,  and  Emperor  of  Austria  v.  Day,  above  cited;  1  Greenl.  Ev. 
§6. 

In  United  States  v.  Eeynes,  upon  the  question  whether  a  Spanish 
grant  of  land  in  Louisiana  was  protected,  either  by  the  treaty  of 
retrocession  from  Spain  to  France,  or  by  the  treaty  of  Paris,  by  which 
the  Territory  of  Louisiana  was  ceded  to  the  United  States,  this  court 
held :  "  The  treaties  above  mentioned,  the  public  acts  and  proclama- 


SECT.  III.]  JONES    V.    UNITED   STATES.  593 

tions  of  tlie  Spanish  and  French  governments,  and  those  of  their  pub- 
licly recognized  agents,  in  carrying  into  effect  those  treaties,  though 
not  made  exhibits  in  this  cause,  are  historical  and  notorious  facts,  of 
which  the  court  can  take  regular  judicial  notice,  and  reference  to 
which  is  implied  in  the  investigation  before  us."     9  How.  147,  148. 

In  Kennett  v.  Chambers,  a  bill  to  compel  specific  performance  of  a 
contract  made  in  the  United  States  in  September,  183G,  by  which  a 
general  in  the  Texan  army  agreed  to  convey  lands  in  Texas,  in  con- 
sideration of  money  paid  him  to  aid  in  raising  and  equipping  troops 
against  Mexico,  was  dismissed  on  demun-er,  because  the  independence 
of  Texas,  though  previously  declared  by  that  State,  had  not  then 
been  acknowledged  by  the  government  of  the  United  States ;  and  the 
court  established  this  conclusion  by  referring  to  messages  of  the 
President  of  the  United  States  to  the  Senate,  a  letter  from  the  Presi- 
dent to  the  Governor  of  Tennessee,  and  a  note  from  the  Secretary  of 
State  to  the  Mexican  Minister,  none  of  which  were  stated  in  the 
record  before  the  court.     14  How.  47,  48. 

So  in  Coffee  v.  Grover,  upon  writ  of  error  to  the  Supreme  Court  of 
Florida,  in  a  case  involving  a  title  to  land,  claimed  under  conflicting 
grants -from  the  State  of  Florida  and  the  State  of  Georgia,  and 
depending  upon  a  disputed  boundary  between  those  States,  this 
court  ascertained  the  true  boundary  by  consulting  public  documents, 
some  of  which  had  not  been  given  in  evidence  at  the  trial,  nor 
referred  to  in  the  opinion  of  the  court  below.     123  U.  S.  11  et  seq. 

In  Taylor  v.  Barclay,  a  bill  in  equity,  based  on  an  agreement  w^hich 
it  alleged  had  been  made  in  1825  by  agents  of  "  the  government  of 
the  Federal  Eepublic  of  Central  America,  which  was  a  sovereign  and 
independent  State,  recognized  and  treated  as  such  by  His  ^Majesty 
the  King  of  these  Kealms,"  was  dismissed  on  demurrer  by  Vice- 
Chancellor  Shad  well,  who  said :  "  I  have  had  communication  with 
the  Foreign  Office,  and  1  am  authorized  to  state  that  the  Federal 
Eepublic  of  Central  America  has  not  been  recognized  as  an  indepen- 
dent government  by  the  government  of  this  country."  "  Inasmuch 
as  I  conceive  it  is  the  duty  of  the  judge  in  every  court  to  take  notice 
of  public  matters  which  affect  the  government  of  this  country,  I  con- 
ceive that,  notwithstanding  there  is  this  averment  in  the  bill,  I  am 
bound  to  take  the  fact  as  it  really  exists,  not  as  it  is  averred  to  be." 
"  Nothing  is  taken  to  be  true,  except  that  which  is  properly  pleaded ; 
and  I  am  of  opinion  that,  when  you  plead  that  which  is  historically 
false,  and  which  the  judges  are  bound  to  take  notice  of  as  bein? 
false.  It  camiot  be  said  you  have  properlv  pleaded,  merelv  because  it 
is  averred,  in  plain  terms;  and  that  I  must  take  it  just' as  if  there 
was  no  such  averment  on  the  record."     2  Sim.  220,  221,  223. 

ihat  case  is  in  harmony  with  decisions  made  in  the  time  of  Lord 
Coke,  and  in  which  he  took  part,  that  against  an  allegation  of  a  pub- 
lic act  of  Parliament,  of  which  the  judges  ought  to  take  notice,  the 
otiier  party  cannot  plead  nul  tiel  record^  but,  if  the  act  be  misrecited, 


594  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

ought  to  demur  in  law  upou  it.  The  Prince's  Case,  8  Rep.  14  a,  28  a ; 
Woolsey's  Case,  Godb.  178. 

In  the  ascertainment  of  any  facts  of  which  they  are  bound  to  take 
judicial  notice,  as  in  the  decision  of  matters  of  law  which  it  is  their 
office  to  know,  the  judges  may  refresh  their  memory  and  inform 
their  conscience  from  such  sources  as  they  deem  most  trustworthy. 
Gresley  Eq.  Ev.  pt.  3,  c.  1  j  Fremont  v.  United  States,  17  How.  542, 
557  ;  Brown  v.  Piper,  91  U.  S.  37,  42 ;  State  v.  Wagner,  61  Maine, 
178.  Upon  the  question  of  the  existence  of  a  public  statute,  or  of 
the  date  when  it  took  effect,  they  may  consult  the  original  roll  or 
other  official  records.  Spring  v.  Eve,  2  Mod.  240;  1  Hale's  Hist. 
Com.  Law  (5th  ed.),  19-21 ;  Gardner  v.  Collector,  6  Wall.  419 ;  South 
Ottawa  V.  Perkins,  94  U.  S.  260,  267-269,  277 ;  Post  v.  Supervisors, 
105  U.  S.  667.  As  to  international  affairs,  such  as  the  recognition  of 
a  foreign  government,  or  of  the  diplomatic  character  of  a  person 
claiming  to  be  its  representative,  they  may  inquire  of  the  Foreign 
Office  or  the  Department  of  State.  Taylor  v.  Barclay,  above  quoted ; 
The  Charkieh,  L.  R.  4  Ad.  &  Ec.  59,  74,  86;  Ux parte  Hitz,  111  U.S. 
766 ;  In  re  Baiz,  135  U.  S.  403. 

In  the  case  at  bar,  the  indictment  alleges  that  the  Island  of 
Navassa,  on  which  the  murder  is  charged  to  have  been  committed, 
was  at  the  time  under  the  sole  and  exclusive  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular  State  or 
district  of  the  United  States,  and  recognized  and  considered  by  the 
United  States  as  containing  a  deposit  of  guano  within  the  meaning 
and  terms  of  the  laws  of  the  United  States  relating  to  such  islands, 
and  recognized  and  considered  by  the  United  States  as  appertaining 
to  the  United  States  and  in  the  possession  of  the  United  States  under 
those  laws. 

These  allegations,  indeed,  if  inconsistent  with  facts  of  which  the 
court  is  bound  to  take  judicial  notice,  could  not  be  treated  as  conclu- 
sively supporting  the  verdict  and  judgment.  But,  on  full  considera- 
tion of  the  matter,  we  are  of  opinion  that  those  facts  are  quite  in 
accord  with  the  allegations  of  the  indictment. 

The  power,  conferred  on  the  President  of  the  United  States  by  sec- 
tion 1  of  the  act  of  Congress  of  1856,  to  determine  that  a  guano  island 
shall  be  considered  as  appertaining  to  the  United  States,  being  a 
strictly  executive  power,  affecting  foreign  relations,  and  the  manner 
in  which  his  determination  shall  be  made  known  not  having  been 
prescribed  by  statute,  there  can  be  no  doubt  that  it  may  be  declared 
through  the  Department  of  State,  whose  acts  in  this  regard  are  in 
legal  contemplation  the  acts  of  the  President.  Wolsey  v.  Chapman, 
101  U.  S.  755,  770;  Runkle  v.  United  States,  122  U.  S.  543,  557;  11 
Opinions  of  Attorneys  General,  397,  399. 

[The  action  of  the  State  Department  is  then  set  out  as  showing  the 
assertion  by  the  United  States  of  exclusive  jurisdiction  over  the 
island,  and  the  conviction  in  the  lower  court  is  affirmed.] 


SECT.  III.]  LUTHER   V.    BORDEN.  595 

LUTHER  V.   BORDEN. 
7  Howard,  1 ;  17  Curtis,  1.     1848. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  the  unfortunate  political  differences 
which  agitated  the  people  of  Rhode  Island  in  1841  and  1842. 

It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plaintiff 
in  error,  against  Luther  M.  Borden  and  others,  the  defendants,  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Rhode  Island, 
for  breaking  and  entering  the  plaintiff's  house.  The  defendants 
justify  upon  the  ground  that  large  numbers  of  men  were  assembled 
in  different  parts  of  the  State  for  the  purpose  of  overthrowing  the 
government  by  military  force,  and  were  actually  levying  war  upon 
the  State ;  that,  in  order  to  defend  itself  from  this  insurrection,  the 
State  was  declared  by  competent  authority  to  be  under  martial  law; 
that  the  plaintiff  was  engaged  in  the  insurrection ;  and  that  the 
defendants,  being  in  the  military  service  of  the  State,  by  command 
of  their  superior  officer,  broke  and  entered  the  house  and  searched 
the  rooms  for  the  plaintiff,  who  was  supposed  to  be  there  concealed, 
in  order  to  arrest  him,  doing  as  little  damage  as  possible.  The 
plaintiff  replied,  that  the  trespass  was  committed  by  the  defendants 
of  their  own  proper  wrong,  and  without  any  such  cause  ;  and  upon 
the  issue  joined  on  this  replication,  the  parties  proceeded  to  trial. 

The  evidence,  offered  by  the  plaintiff  and  the  defendants,  is 
stated  at  large  in  the  record  ;  and  the  questions  decided  by  the 
Circuit  Court,  and  brought  up  by  the  writ  of  error,  are  not  such  as 
commonly  arise  in  an  action  of  trespass.  The  existence  and  author- 
ity of  the  government,  under  which  the  defendants  acted,  was 
called  in  question ;  and  the  plaintiff  insists,  that,  before  the  acts 
complained  of  were  committed,  that  government  had  been  displaced 
and  annulled  by  the  people  of  Rhode  Island,  and  that  the  plaintiff 
was  engaged  in  supporting  the  lawful  authority  of  the  State,  and 
the  defendants  themselves  were  in  arms  against  it. 

This  is  a  new  question  in  this  court,  and  certainly  a  very  grave 
one ;  and  at  the  time  when  the  trespass  is  alleged  to  have  been 
committed,  it  had  produced  a  general  and  painful  excitement  in  the 
State,  and  threatened  to  end  in  bloodshed  and  civil  war. 

The  evidence  shows  that  the  defendants,  in  breaking  into  the 
plaintiff's  house  and  endeavoring  to  arrest  him,  as  stated  in  the 
pleadings,  acted  under  the  authority  of  the  government  which  was 
established  in  Rhode  Island  at  the  time  of  the  Declaration  of  Inde- 
pendence, and  which  is  usually  called  the  charter  government.  For 
when  the  separation  from  England  took  place,  Rhode  Island  did  not, 
like  the  other  States,  adopt  a  new  constitution,  but  continued  the 


596  THE    POWERS    OF    THE    EXECUTIVE.  [CHAP.  V. 

form  of  government  established  by  the  charter  of  Charles  II.  in 
1663;  making  only  such  alterations,  by  acts  of  the  legislature,  as 
were  necessary  to  adapt  it  to  their  condition  and  rights  as  an 
independent  State.  It  was  under  this  form  of  government  that 
Rhode  Island  united  with  the  other  States  in  the  Declaration  of 
Independence,  and  afterwards  ratified  the  Constitution  of  the  United 
States  and  became  a  member  of  this  Union ;  and  it  continued  to  be 
the  established  and  unquestioned  government  of  the  State  until  the 
difficulties  took  place  which  have  given  rise  to  this  action. 

In  this  form  of  government,  no  mode  of  proceeding  was  pointed 
out  by  which  amendments  might  be  made.  It  authorized  the  legis- 
lature to  prescribe  the  qualification  of  voters,  and  in  the  exercise  of 
this  power  the  right  of  suffrage  was  confined  to  freeholders,  until  the 
adoption  of  the  constitution  of  1843. 

For  some  years  previous  to  the  disturbances  of  which  we  are  now 
speaking,  many  of  the  citizens  became  dissatisfied  with  the  charter 
government,  and  particularly  wuth  the  restriction  upon  the  right  of 
suffrage.  Memorials  were  addressed  to  the  legislature  upon  this 
subject,  urging  the  justice  and  necessity  of  a  more  liberal  and 
extended  rule.  But  they  failed  to  produce  the  desired  effect.  And 
thereupon  meetings  were  held  and  associations  formed  by  those  who 
were  in  favor  of  a  more  extended  right  of  suffrage,  which  finally 
.resulted  in  the  election  of  a  convention  to  form  a  new  constitution 
to  be  submitted  to  the  people  for  their  adojjtion  or  rejection.  This 
convention  was  not  authorized  by  any  law  of  the  existing  govern- 
ment. It  was  elected  at  voluntary  meetings,  and  by  those  citizens 
only  who  favored  this  plan  of  reform  ;  those  who  were  opposed  to  it, 
or  opposed  to  the  manner  in  which  it  was  proposed  to  be  accomplished, 
taking  no  part  in  the  proceedings.  The  persons  chosen  as  above 
mentioned,  came  together  and  framed  a  constitution,  by  which  the 
right  of  suffrage  was  extended  to  every  male  citizen  of  twenty-one 
years  of  age,  who  had  resided  in  the  State  for  one  year,  and  in  the 
town  in  which  he  offered  to  vote,  for  six  months,  next  preceding  the 
election.  The  convention  also  prescribed  the  manner  in  which  this 
constitution  should  be  submitted  to  the  decision  of  the  people ;  per- 
mitting every  one  to  vote  on  that  question  who  was  an  American 
citizen,  twenty-one  years  old,  and  who  had  a  permanent  residence  or 
home  in  the  State,  and  directing  the  votes  to  be  returned  to  the 
convention. 

Upon  the  return  of  the  votes,  the  convention  declared  that  the 
constitution  was  adopted  and  ratified  by  a  majority  of  the  people  of 
the  State,  and  was  the  paramount  law  and  constitution  of  Ehode 
Island.  And  it  communicated  this  decision  to  the  governor  under 
the  charter  government,  for  the  purpose  of  being  laid  before  the 
legislature;  and  directed  elections  to  be  held  for  a  governor,  members 
of  the  legislature,  and  other  officers  under  the  new  constitution. 
These  elections  accordingly  took  place,  and  the  governor,  lieutenant- 


SECT.  III.]  LUTHER   V.    BORDEN.  597 

governor,  secretary  of  state,  and  senators  and  representatives  thus 
appointed,  assembled  at  the  city  of  Providence  on  May  3,  1842,  and 
immediately  proceeded  to  organize  the  uew  government,  by  appoint- 
ing the  officers  and  passing  the  laws  necessary  for  that  purpose. 

The  charter  government  did  not,  however,  adn:iit  the  validity  of 
these  proceedings,  nor  acquiesce  in  them.  On  the  contrary,  in  Jan- 
uary, 1842,  when  this  new  constitution  was  communicated  to  the 
governor,  and  by  him  laid  before  the  legislature,  it  passed  resolutions 
declaring  all  acts  done  for  the  purpose  of  imposing  that  constitution 
upon  the  State  to  be  an  assumption  of  the  powers  of  government, 
in  violation  of  the  rights  of  the  existing  government  and  of  the 
people  at  large ;  and  that  it  would  maintain  its  authority  and  defend 
the  legal  and  constitutional  rights  of  the  people. 

In  adopting  this  measure,  as  well  as  in  all  others  taken  by  the 
charter  government  to  assert  its  authority,  it  was  supported  by  a 
large  number  of  the  citizens  of  the  State,  claiming  to  be  a  majority, 
who  regarded  the  proceedings  of  the  adverse  party  as  unlawful  and 
disorganizing,  and  maintained  that,  as  the  existing  government  had 
been  established  by  the  people  of  the  State,  no  convention  to  frame 
a  new -constitution  could  be  called  without  its  sanction  ;  and  that  the 
times  and  places  of  taking  the  votes,  and  the  officers  to  receive  them, 
and  the  qualification  of  the  voters,  must  be  previously  regulated  and 
appointed  by  law. 

But  notwithstanding  the  determination  of  the  charter  government, 
and  of  those  who  adhered  to  it,  to  maintain  its  authority,  Thomas 
W.  Dorr,  who  had  been  elected  governor  under  the  new  constitution, 
prepared  to  assert  the  authority  of  that  government  by  force,  and 
many  citizens  assembled  in  arms  to  support  him.  The  charter  gov- 
ernment thereupon  passed  an  act  declaring  the  State  under  martial 
law,  and  at  the  same  time  proceeded  to  call  out  the  militia,  to  repel 
the  threatened  attack,  and  to  subdue  those  who  were  engaged  in  it. 
In  this  state  of  the  contest,  the  house  of  the  plaintiff,  who  was  en- 
gaged in  supporting  the  authority  of  the  new  government,  was  broken 
and  entered  in  order  to  arrest  him.  The  defendants  were,  at  the 
time,  in  the  military  service  of  the  old  government,  and  in  arms  to 
support  its  authority. 

It  appears,  also,  that  the  charter  government,  at  its  session  of 
January,  1842,  took  measures  to  call  a  convention  to  revise  the 
existing  form  of  government ;  and  after  various  proceedings,  which  it 
is  not  material  to  state,  a  new  constitution  was  formed  by  a  conven- 
tion elected  under  the  authority  of  the  charter  government,  and 
afterwards  adopted  and  ratified  by  the  people;  the  times  and  places 
at  which  the  votes  were  to  be  given,  the  persons  who  were  to  receive 
and  return  them,  and  the  qualification  of  the  voters,  having  all  been 
previously  authorized  and  provided  for  by  law  passed  by  the  charter 
government.  This  new  government  went  into  operation  in  Ma}'', 
1843,  at  which  time  the  old  government  formally  surrendered  all  its 


598  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

powers  ;  and  this  constitution  has  continued   ever  since  to  be  the 
admitted  and  established  government  of  Rhode  Island. 

The  dithculties  with  the  government,  of  which  Mr.  Dorr  was  the 
head,  were  soon  over.  They  had  ceased  before  the  constitution  was 
framed  by  the  convention  elected  by  the  authority  of  the  charter 
government.  For  after  an  unsuccessful  attempt  made  by  Mr.  Dorr 
in  May,  1842,  at  the  head  of  a  military  force,  to  get  possession  of 
the  State  arsenal  at  Providence,  in  which  he  was  repulsed,  and  an 
assemblage  of  some  hundreds  of  armed  men  under  his  command  at 
Chepatchet  in  the  June  following,  which  dispersed  upon  the  approach 
of  the  troops  of  the  old  government,  no  further  effort  was  made  to 
establish  it ;  and  until  the  constitution  of  1843  went  into  operation, 
the  charter  government  continued  to  assert  its  authority  and  exercise 
its  powers,  and  to  enforce  obedience,  throughout  the  State,  arresting 
and  imprisoning,  and  punishing,  in  its  judicial  tribunals,  those  who 
had  appeared  in  arms  against  it. 

We  do  not  understand,  from  the  argument,  that  the  constitution, 
under  which  the  plaintiff  acted,  is  supposed  to  have  been  in  force 
after  the  constitution  of  May,  1843,  went  into  operation.  The  con- 
test is  confined  to  the  year  preceding.  The  plaintiff  contends  that 
the  charter  government  was  displaced,  and  ceased  to  have  any  lawful 
power,  after  the  organization,  in  May,  1842,  of  the  government  which 
he  supported;  and  although  that  government  never  was  able  to  exer- 
cise any  authority  in  the  State,  nor  to  command  obedience  to  its 
laws  or  to  its  officers,  yet  he  insists  that  it  was  the  lawful  and  estab- 
lished government,  upon  the  ground  that  it  was  ratified  by  a  large 
majority  of  the  male  people  of  the  State  of  the  age  of  twenty-one 
and  upwards,  and  also  by  a  majority  of  those  who  were  entitled  to 
vote  for  general  officers  under  the  then  existing  laws  of  the  State. 
The  fact  that  it  was  so  ratified  was  not  admitted ;  and  at  the  trial  in 
the  Circuit  Court  he  offered  to  prove  it  by  the  production  of  the 
original  ballots,  and  the  original  registers  of  the  persons  voting, 
verified  by  the  oaths  of  the  several  moderators  and  clerks  of  the 
meetings,  and  by  the  testimony  of  all  the  persons  so  voting,  and  by 
the  said  constitution  ;  and  also  offered  in  evidence,  for  the  same 
purpose,  that  part  of  the  census  of  the  United  States  for  the  year 
1840  which  applies  to  Rhode  Island;  and  a  certificate  of  the  secre- 
tary of  state  of  the  charter  government,  showing  the  number  of 
votes  polled  by  the  freemen  of  the  State  for  the  ten  years  then  last 
past. 

The  Circuit  Court  rejected  this  evidence,  and  instructed  the  jury 
that  the  charter  government  and  laws  under  which  the  defendants 
acted  were,  at  the  time  the  trespass  is  alleged  to  have  been  com- 
mitted, in  full  force  and  effect  as  the  form  of  government  and  para- 
mount law  of  the  State,  and  constituted  a  justification  of  the  acts  of 
the  defendants  as  set  forth  in  their  pleas. 

It  is  this  opinion  of  the  Circuit  Court  that  we  are  now  called  upon 


SECT.  III.]  LUTHER   t\    BORDEN.  599 

to  review.  It  is  set  forth  more  at  large  in  the  exception,  but  is  in 
substance  as  above  stated  j  and  the  question  presented  is  certainly  a 
very  serious  one.  For,  if  this  court  is  authorized  to  enter  upon  this 
inquiry  as  proposed  by  the  plaintiff,  and  it  should  be  decided  that 
the  charter  government  had  no  legal  existence  during  the  period  of 
time  above  mentioned,  if  it  had  been  annulled  by  the  adoption  of  the 
opposing  government,  then  the  laws  passed  by  its  legislature  during 
that  time  were  nullities ;  its  taxes  wrongfully  collected ;  its  salaries 
and  compensation  to  its  officers  illegally  paid ;  its  public  accounts 
improperly  settled ;  and  the  jugments  and  sentences  of  its  courts  in 
civil  and  criminal  cases  null  and  void,  and  the  officers  who  carried 
their  decisions  into  operation  answerable  as  trespassers,  if  not  in 
some  cases  as  criminals. 

When  the  decision  of  this  court  might  lead  to  such  results,  it  be- 
comes its  duty  to  examine  very  carefully  its  own  powers  before  it 
undertakes  to  exercise  jurisdiction. 

Certainly,  the  question  which  the  plaintiff  proposed  to  raise  by  the 
testimony  he  offered  has  not  heretofore  been  recognized  as  a  judicial 
one  in  any  of  the  State  courts.  In  forming  the  constitutions  of 
the  different  States,  after  the  Declaration  of  Independence,  and  in  the 
various  changes  and  alterations  which  have  since  been  made,  the 
political  department  has  always  determined  whether  the  proposed 
constitution  or  amendment  was  ratified  or  not  by  the  people  of  the 
State,  and  the  judicial  power  has  followed  its  decision.  In  Rhode 
Island,  the  question  has  been  directly  decided.  Prosecutions  were 
there  instituted  against  some  of  the  persons  who  had  been  active  in 
the  forcible  opposition  to  the  old  government.  And  in  more  than 
one  of  the  cases  evidence  was  offered  on  the  part  of  the  defence  sim- 
ilar to  the  testimony  offered  in  the  Circuit  Court,  and  for  the  same 
purpose ;  that  is,  for  the  purpose  of  showing  that  the  proposed  con- 
stitution had  been  adopted  by  the  people  of  Rhode  Island,  and  had, 
therefore,  become  the  established  government,  and  consequently  that 
the  parties  accused  were  doing  nothing  more  than  their  duty  in  en- 
deavoring to  support  it. 

But  the  courts  uniformly  held  that  the  inquiry  proposed  to  be 
made  belonged  to  the  political  power  and  not  to  the  judicial;  that  it 
rested  with  the  political  power  to  decide  whether  the  charter  gov- 
ernment had  been  displaced  or  not ;  and  when  that  decision  was 
made,  the  judicial  department  would  be  bound  to  take  notice  of  it  as 
the  paramount  law  of  the  State,  without  the  aid  of  oral  evidence  or 
the  examination  of  witnesses ;  that,  according  to  the  laws  and  insti- 
tutions of  Rhode  Island,  no  such  change  had  been  recognized  by  the 
political  power ;  and  that  the  charter  government  was  the  lawful  and 
established  government  of  the  State  during  the  period  in  contest, 
and  that  those  who  were  in  arms  against  it  were  insurgents,  and 
liable  to  punishment.  This  doctrine  is  clearl}-  and  forcibly  stated  in 
the  opinion  of  the  Supreme  Court  of  the  State  in  the  trial  of  Thomas 


600  THE   POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

AV.  Dorr,  who  was  the  governor  elected  under  the  opposing  constitu- 
tion, and  headed  the  armed  force  which  endeavored  to  maintain  its 
authority. 

Indeed  we  do  not  see  how  the  question  could  be  tried  and  judi- 
cially decided  in  a  State  court.  Judicial  power  presupposes  an  estab- 
lished government  capable  of  enacting  laws  and  enforcing  their 
execution,  and  of  appointing  judges  to  expound  aud  adminster  them. 
The  acceptance  of  the  judicial  office  is  a  recognition  of  the  authority 
of  the  government  from  which  it  is  derived.  And  if  the  authority 
of  that  government  is  annulled  and  overthrown,  the  power  of  its 
courts  and  other  officers  is  annulled  with  it.  And  if  a  State  court 
should  enter  upon  the  inquiry  proposed  in  this  case,  and  should  come 
to  the  conclusion  that  the  government  under  which  it  acted  had  been 
put  aside  and  displaced  by  an  opposing  government,  it  would  cease 
to  be  a  court,  and  be  incapable  of  pronouncing  a  judicial  decision 
upon  the  question  it  undertook  to  try.  If  it  decides  at  all  as  a  court, 
it  necessarily  affirms  the  existence  and  authority  of  the  government 
under  which  it  is  exercising  judicial  power. 

It  is  worthy  of  remark,  however,  when  we  are  referring  to  the 
authority  of  State  decisions,  that  the  trial  of  Thomas  W.  Dorr  took 
place  after  the  constitution  of  1843  went  into  operation.  The  judges 
who  decided  that  case  held  their  authority  under  that  constitution  ; 
and  it  is  admitted  on  all  hands  that  it  was  adopted  by  the  people  of 
the  State,  and  is  the  lawful  and  established  government.  It  is  the 
decision,  therefore,  of  a  State  court,  whose  judicial  authority  to  de- 
cide upon  the  constitution  and  laws  of  Rhode  Island  is  not  ques- 
tioned by  either  party  to  this  controversy,  although  the  government 
under  which  it  acted  was  framed  and  adopted  under  the  sanction 
and  laws  of  the  charter  government. 

The  point,  then,  raised  here  has  been  already  decided  by  the  courts 
of  Rhode  Island.  The  question  relates,  altogether,  to  the  constitu- 
tion and  laws  of  that  State;  and  the  well-settled  rule  in  this  court 
is,  that  the  courts  of  the  United  States  adopt  and  follow  the  deci- 
sions of  the  State  courts  in  questions  which  concern  merely  the  con- 
stitution and  laws  of  the  State. 

Upon  what  ground  could  the  Circuit  Court  of  the  United  States, 
which  tried  this  case,  have  departed  from  this  rule,  and  disregarded 
and  overruled  the  decisions  of  the  courts  of  Rhode  Island  ?  Un- 
doubtedly the  courts  of  the  United  States  have  certain  powers  under 
the  Constitution  and  laws  of  the  United  States  which  do  not  belong 
to  the  State  courts.  But  the  power  of  determining  that  a  State  gov- 
ernment has  been  lawfully  established,  which  the  courts  of  the  State 
disown  and  repudiate,  is  not  one  of  them.  Upon  such  a  question 
the  courts  of  the  United  States  are  bound  to  follow  the  decisions 
of  the  State  tribunals,  and  must  therefore  regard  the  charter  govern- 
ment as  the  lawful  and  established  government  during  the  time  of 
this  contest. 


SECT.  III.]  LUTHER   V.    BORDEN.  601 

Besides,  if  tlie  Circuit  Court  had  entered  upon  this  inquiry,  by 
what  rule  could  it  have  determined  the  qualification  of  voters  upon 
the  adoption  or  rejection  of  the  proposed  constitution,  unless  there 
was  some  previous  law  of  the  State  to  guide  it?  It  is  the  province 
of  a  court  to  expound  the  law,  not  to  make  it.  And  certainly  it  is 
no  part  of  the  judicial  functions  of  any  court  of  the  United  States  to 
prescribe  the  qualification  of  voters  in  a  State,  giving  the  right  to 
those  to  whom  it  is  denied  by  tlie  written  and  established  constitu- 
tion and  laws  of  the  State,  or  taking  it  away  from  those  to  whom  it 
is  given;  nor  has  it  the  right  to  determine  what  political  privileges 
the  citizens  of  a  State  are  entitled  to,  unless  there  is  an  established 
constitution  or  law  to  govern  its  decision. 

And  if  the  then  existing  law  of  Rhode  Island,  which  confined  the 
right  of  suffrage  to  freeholders,  is  to  govern,  and  this  question  is  to 
be° tried  by  that  rule,  how  could  the  majority  have  been  ascertained 
by  legal  evidence,  such  as  a  court  of  justice  might  lawfully  receive  ? 
The  written  returns  of  the  moderators  and  clerks  of  mere  voluntary 
meetings,  verified  by  affidavit,  certainly  would  not  be  admissible; 
nor  their  opinions  or  judgments  as  to  the  freehold  qualification  of  the 
persons  who  voted.  The  law  requires  actual  knowledge  in  the  wit- 
ness of  the  fact  to  which  he  testifies  in  a  court  of  justice.  How, 
then,  could  the  majority  of  freeholders  have  been  determined  in  a 
judicial  proceeding. 

The  court  had  not  the  power  to  order  a  census  of  the  freeholders 
to  be  taken ;  nor  would  the  census  of  the  United  States_  of  1840  be 
any  evidence  of  the  number  of  freeholders  in  the  State  in  1842. 
Nor  could  the  court  appoint  persons  to  examine  and  determine 
whether  every  person  who  had  voted  possessed  the  freehold  qualifi- 
cation which  the  law  then  required.  In  the  nature  of  things,  the 
Circuit  Court  could  not  know  the  name  and  residence  of  every  citizen 
and  bring  him  before  the  court  to  be  examined.  And  if  this  were 
attempted,  where  would  such  an  inquiry  have  terminated  ?  And 
how  long  must  the  people  of  Rhode  Island  have  waited  to  learn 
from  this  court  under  wliat  form  of  government  they  were  living 
during  the  year  in  controversy  ? 

But  this  is  not  all.  The  question  as  to  the  majority  is  a  question 
of  fact.  It  depends  upon  the  testimony  of  witnesses,  and  if  the 
testimony  offered  by  the  plaintiff  had  been  received,  the  defendants 
had  the  right  to  offer  evidence  to  rebut  it;  and  there  might,  and 
probably  would,  have  been  conflicting  testimony  as  to  the  number 
of  voters  in  the  State,  and  as  to  the  legal  qualifications  of  many  of 
the  individuals  who  had  voted.  The  decision  would,  therefore,  have 
depended  upon  the  relative  credibility  of  witnesses,  and  the  weight 
of  testimony  ;  and  as  the  case  before  the  Circuit  Court  was  an  action 
at  common  law,  the  question  of  fact,  according  to  the  Seventh  Amend- 
ment to  the  Constitution  of  the  United  States,  must  have  been  tried 
by  the  jury.     In  one  case  a  jury  might  find  that  the  constitution 


602  THE   POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

which  the  plaintiff  supported  was  adopted  by  a  majority  of  the 
citizens  of  the  State,  or  of  the  voters  entitled  to  vote  by  the  existing 
law.  Another  jury  in  another  case  might  find  otherwise.  And  as  a 
verdict  is  not  evidence  in  a  suit  between  different  parties,  if  the 
courts  of  the  United  States  have  the  jurisdiction  contended  for  by 
the  plaintiff,  the  question  whether  the  acts  done  under  the  charter 
government  during  the  period  in  contest  are  valid  or  not,  must 
always  remain  unsettled  and  open  to  dispute.  The  authority  and 
security  of  the  State  governments  do  not  rest  on  such  unstable 
foundations. 

Moreover,  the  Constitution  of  the  United  States,  as  far  as  it  has 
provided  for  an  emergency  of  this  kind,  and  authorized  the  general 
government  to  interfere  in  the  domestic  concerns  of  a  State,  has 
treated  the  subject  as  political  in  its  nature,  and  placed  the  power  in 
the  hands  of  that  department. 

The  fourth  section  of  the  fourth  article  of  the  Constitution  of  the 
United  States  provides  that  the  United  States  shall  guarantee  to 
every  State  in  the  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion  ;  and  on  the  application  of 
the  legislature  or  of  the  executive  (when  the  legislature  cannot  be 
convened)  against  domestic  violence. 

Under  this  article  of  the  Constitution  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  State.  For  as 
the  United  States  guarantee  to  each  State  a  republican  government. 
Congress  must  necessarily  decide  what  government  is  established  in 
the  State  before  it  can  determine  whether  it  is  republican  or  not. 
And  when  the  senators  and  representatives  of  a  State  are  admitted 
into  tlie  councils  of  the  Union,  the  authority  of  the  government 
under  which  they  are  appointed,  as  well  as  its  republican  character, 
is  recognized  by  the  proper  constitutional  authority.  And  its  deci- 
sion is  binding  on  every  other  department  of  the  government,  and 
could  not  be  questioned  in  a  judicial  tribunal.  It  is  true  that  the 
contest  in  this  case  did  not  last  long  enough  to  bring  the  matter  to 
this  issue  ;  and  as  no  senators  or  representatives  were  elected  under 
the  authority  of  the  government  of  which  Mr.  Dorr  was  the  head, 
Congress  was  not  called  upon  to  decide  the  controversy.  Yet  the 
right  to  decide  was  placed  there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of 
the  Constitution,  providing  for  cases  of  domestic  violence.  It  rested 
with  Congress,  too,  to  determine  upon  the  means  proper  to  be 
adopted  to  fulfil  this  guarantee.  They  might,  if  they  had  deemed 
it  most  advisable  to  do  so,  have  placed  it  in  the  power  of  a  court  to 
decide  when  the  contingency  had  happened  which  required  the 
Federal  government  to  interfere.  But  Congress  thought  otherwise, 
and  no  doubt  wisely  ;  and  by  the  act  of  Februar}"  28,  1795,  provided, 
that,  "  in  case  of  an  insurrection  in  any  State  against  the  government 
thereof,  it  shall  be  lawful  for  the  President  of  the  United  States,  on 


mtui  1 


SECT.  III.]  LUTHER   V.    BORDEN.  603 

application  of  the  legislature  of  such  State  or  of  the  executive,  when 
the  legislature  cannot  be  convened,  to  call  forth  such  number  of  the 
militia  of  any  other  State  or  States,  as  may  be  applied  for,  as  he  may 
judge  sufficient  to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had  arisen 
upon  which  the  government  of  the  United  States  is  bound  to  inter- 
fere, is  given  to  the  President.  He  is  to  act  upon  the  application  of 
the  legislature,  or  of  the  executive,  and  consequently  he  must  deter- 
mine what  body  of  men  constitute  the  legislature,  and  who  is  the 
governor,  before  he  can  act.  The  fact  that  both  parties  claim  the 
right  to  the  government  cannot  alter  the  case,  for  both  cannot  be 
entitled  to  it.  If  there  is  an  armed  conflict,  like  the  one  of  which 
we  are  speaking,  it  is  a  case  of  domestic  violence,  and  one  of  the 
parties  must  be  in  insurrection  against  the  lawful  government.  And 
the  President  must,  of  necessity,  decide  which  is  the  government, 
and  which  party  is  unlawfully  arrayed  against  it,  before  he  can  per- 
form the  duty  imposed  upon  him  by  the  act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a  Circuit 
Court  of  the  United  States  authorized  to  inquire  whether  his  decision 
was  right  ?  Could  the  court,  while  the  parties  were  actually  con- 
tending in  arms  for  the  possession  of  the  government,  call  witnesses 
before  it,  and  inquire  which  party  represented  a  majority  of  the 
people  ?  If  it  could,  then  it  would  become  the  duty  of  the  court 
(provided  it  came  to  the  conclusion  that  the  President  had  decided 
incorrectly)  to  discharge  those  who  were  arrested  or  detained  by  the 
troops  in  the  service  of  the  United  States,  or  the  government  which 
the  President  was  endeavoring  to  maintain.  If  the  judicial  power 
extends  so  far,  the  guarantee  contained  in  the  Constitution  of  the 
United  States  is  a  guarantee  of  anarchy,  and  not  of  order.  Yet 
if  this  right  does  not  reside  in  the  courts,  when  the  conflict  is 
raging — if  the  judicial  power  is,  at  that  time,  bound  to  follow  the 
decision  of  the  political,  it  must  be  equally  bound  when  the  contest 
is  over.  It  cannot,  when  peace  is  restored,  punish  as  offences  and 
crimes  the  acts  which  it  before  recognized,  and  was  bound  to  recog- 
nize, as  lawful. 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by  the 
President.  But  upon  the  application  of  the  governor  under  the 
charter  government,  the  President  recognized  him  as  the  executive 
power  of  the  State,  and  took  measures  to  call  out  the  militia  to  sup- 
port his  authority,  if  it  should  be  found  necessary  for  the  general 
government  to  interfere  ;  and  it  is  admitted  in  the  argument  that  it 
was  the  knowledge  of  this  decision  that  put  an  end  to  the  armed 
opposition  to  the  charter  government,  and  prevented  any  further 
efforts  to  establish  by  force  the  proposed  constitution.  The  inter- 
ference of  the  President,  therefore,  by  announcing  his  determination, 
was  as  effectual  as  if  the  militia  had  been  assembled  under  his 
orders.     And  it  should  be  equally  authoritative.     For  certainly  no 


604  THE    POWERS   OF   THE    EXECUTIVE.  [CHAP.  V. 

court  of  the  United  States,  with  a  knowledge  of  this  decision,  would 
have  been  justified  in  recognizing  the  opposing  party  as  the  lawful 
government,  or  in  treating  as  wrongdoers  or  insurgents  the  officers 
of  the  government  which  the  President  had  recognized,  and  was  pre- 
pared to  support  by  an  armed  force.  In  the  case  of  foreign  nations, 
the  government  acknowledged  by  the  President  is  always  recognized 
in  the  courts  of  justice.  And  this  principle  has  been  applied  by  the 
act  of  Congress  to  the  sovereign  States  of  the  Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to  liberty, 
and  may  be  abused.  All  power  may  be  abused  if  placed  in  unworthy 
hands.  But  it  would  be  difficult,  we  think,  to  point  out  any  other 
hands  in  which  this  power  would  be  more  safe,  and  at  the  same  time 
equally  effectual.  When  citizens  of  the  same  State  are  in  arms 
against  each  other,  and  the  constituted  authorities  unable  to  execute 
the  laws,  the  interposition  of  the  United  States  must  be  prompt,  or 
it  is  of  little  value.  The  ordinary  course  of  proceedings  in  courts  of 
justice  would  be  utterly  unfit  for  the  crisis.  And  the  elevated  office 
of  the  President,  chosen  as  he  is  by  the  people  of  the  United  States, 
and  the  high  responsibility  he  could  not  fail  to  feel  when  acting  in  a 
case  of  so  much  moment,  appear  to  furnish  as  strong  safeguajxls 
against  a  wilful  abuse  of  power  as  human  prudence  and  foresight 
could  well  provide.  At  all  events,  it  is  conferred  upon  him  by  the 
Constitution  and  laws  of  the  United  States,  and  must,  therefore,  be 
respected  and  enforced  in  its  judicial  tribunals. 

A  question  very  similar  to  this  arose  in  the  case  of  Martin  v.  Mott, 
12  Wheat.  29-31.  The  first  clause  of  the  first  section  of  the  act  of 
February  28,  1795,  of  which  we  have  been  speaking,  authorizes  the 
President  to  call  out  the  militia  to  repel  invasion.  It  is  the  second 
clause  in  the  same  section  which  authorizes  the  call  to  suppress  an 
insurrection  against  a  State  government.  The  power  given  to  the 
President  in  each  case  is  the  same,  with  this  difference  onl}^,  that  it 
cannot  be  exercised  by  him  in  the  latter  case,  except  upon  the  appli- 
cation of  the  legislature  or  executive  of  the  State.  The  case  above 
mentioned  arose  out  of  a  call  made  by  the  President,  by  virtue 
of  the  power  conferred  by  the  first  clause ;  and  the  court  said 
that  "whenever  a  statute  gives  a  discretionary  power  to  any  person, 
to  be  exercised  by  him  upon  his  own  opinion  of  certain  facts,  it  is  a 
sound  rule  of  construction  that  the  statute  constitutes  him  the  sole 
and  exclusive  judge  of  the  existence  of  those  facts."  The  grounds 
upon  which  that  opinion  is  maintained  are  set  forth  in  the  report, 
and,  we  think,  are  conclusive.  The  same  principle  applies  to  the 
case  now  before  the  court.  Undoubtedly,  if  the  President,  in 
exercising  this  power,  shall  fall  into  error,  or  invade  the  rights  of  the 
people  of  the  State,  it  would  be  in  the  power  of  Congress  to  apply 
the  proper  remedy.  But  the  courts  must  administer  the  law  as  they 
find  it. 

The  remaining  question  is,  whether  the  defendants,  acting  under 


SECT.  III.]  LUTHER    V.    BORDEN.  605 

military  orders  issued  under  the  authority  of  the  government,  were 
justified  in  breaking  and  entering  the  plaintiff's  house.  In  relation 
to  the  act  of  the  legislature  declaring  martial  law,  it  is  not  necessary 
in  the  case  before  us  to  inquire  to  what  extent,  nor  under  what  cir- 
cumstances, that  power  may  be  exercised  by  a  State.  Unquestion- 
ably, a  military  government,  estal)lishedas  the  permanent  government 
of  the  State,  would  not  be  a  republican  government,  and  it  would  be 
the  duty  of  Congress  to  overthrow  it.  But  the  law  of  Rhode  Island 
evidently  contemplated  no  such  government.  It  was  intended  merely 
for  the  crisis,  and  to  meet  the  peril  in  which  the  existing  government 
was  placed  by  the  armed  resistance  to  its  authority.  It  was  so  un- 
derstood and  construed  by  the  State  authorities.  And,  unquestion- 
ably, a  State  may  use  its  military  power  to  put  down  an  armed 
insurrection,  too  strong  to  be  controlled  by  the  civil  authority.  The 
power  is  essential  to  the  existence  of  every  government,  essential  to 
the  preservation  of  order  and  free  institutions,  and  is  as  necessary  to 
the  States  of  this  Union,  as  to  any  other  government.  The  State 
itself  must  determine  what  degree  of  force  the  crisis  demands.  And 
if  the  government  of  Rhode  Island  deemed  the  armed  opposition  so 
formidable,  and  so  ramified  throughout  the  State  as  to  require  the 
use  of  its  military  force  and  the  declaration  of  martial  law,  we  see  no 
ground  upon  which  this  court  can  question  its  authority.  It  was  a 
state  of  war,  and  the  established  government  resorted  to  the  rights 
and  usages  of  war  to  maintain  itself,  and  to  overcome  the  unlawful 
opposition.  And  in  that  state  of  things  the  officers  engaged  in  its 
military  service  might  lawfully  arrest  any  one,  who,  from  the  infor- 
mation before  them,  they  had  reasonable  grounds  to  believe  was 
engaged  in  the  insurrection  ;  and  might  order  a  house  to  be  forcibly 
entered  and  searched,  when  there  were  reasonable  grounds  for  sup- 
posing he  might  be  there  concealed.  "Without  the  power  to  do  this, 
martial  law  and  the  military  array  of  the  government  would  be  mere 
parade,  and  rather  encourage  attack  than  repel  it.  No  more  force, 
however,  can  be  used  than  is  necessary  to  accomplish  the  object. 
And  if  the  power  is  exercised  for  the  purposes  of  oppression,  or  any 
injury  wilfully  done  to  person  or  property,  the  party  by  whom,  or 
by  whose  order,  it  is  committed,  would  undoubtedly  be  answerable. 

We  forbear  to  remark  upon  the  cases  referred  to  in  the  argument, 
in  relation  to  the  commissions  anciently  issued  by  the  kings  of  Eng- 
land to  commissioners,  to  proceed  against  certain  descriptions  of  per- 
sons in  certain  places  by  the  law  martial.  These  commissions  were 
issued  by  the  king  at  his  pleasure,  without  the  concurrence  or  author- 
ity of  Parliament,  and  were  often  abused  for  the  most  despotic  and 
oppressive  purposes.  They  were  used  before  the  regal  power  of 
England  was  well  defined,  and  were  finally  abolished  and  prohibited 
by  the  petition  of  right  in  the  reign  of  Charles  I.  But  they  bear  no 
analogy  in  any  respect  to  the  declaration  of  martial  law  by  the  legis- 
lative authority  of  the  State,  made  for  the  purposes  of  self-defence, 


606  THE   POWERS    OF   THE   EXECUTIVE.  [CHAP.  V. 

when  assailed  by  an  armed  force ;  and  the  cases  and  commentaries 
concerning  these  commissions  cannot,  therefore,  influence  the  con- 
struction of  the  lUiode  Island  law,  nor  furnish  any  test  of  the  law- 
fulness of  the  autliority  exercised  by  the  government. 

Upon  the  whole,  we  see  no  reason  for  disturbing  the  judgment  of 
the  Circuit  Court.  The  admission  of  evidence  to  prove  that  the  char- 
ter government  was  the  established  government  of  the  State,  was  an 
irregularity,  but  is  not  material  to  tlie  judgment.  A  Circuit  Court  of 
the  United  States,  sitting  in  Ehode  Island,  is  presumed  to  know  the 
constitution  and  law  of  the  State.  And  in  order  to  make  up  its 
opinion  upon  that  subject,  it  seeks  information  from  any  authentic 
and  available  source,  without  waiting  for  the  formal  introduction  of 
testimony  to  prove  it,  and  without  confining  itself  to  the  proofs 
whicli  the  parties  may  offer.  But  this  error  of  the  Circuit  Court  does 
not  affect  tlie  result.  For  whether  this  evidence  was  or  was  not 
received,  the  Circuit  Court,  for  the  reasons  hereinbefore  stated,  was 
bound  to  recognize  that  government  as  the  paramount  and  established 
authority  of  the  State. 

ISIuch  of  the  argument  on  the  part  of  the  plaintiff  turned  upon 
political  rights  and  political  questions,  upon  which  the  court  has 
been  urged  to  express  an  opinion.  We  decline  doing  so.  The  high 
power  has  been  conferred  on  this  court,  of  passing  judgment  ujjon 
the  acts  of  the  State  sovereignties,  and  of  the  legislative  and  execu- 
tive branches  of  the  Federal  government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  theiu 
respectively  by  the  Constitution  of  the  United  States.  This  tri- 
bunal, therefore,  should  be  the  last  to  overstep  the  boundaries  which 
limit  its  own  jurisdiction.  And  while  it  should  always  be  ready  to 
meet  any  question  confided  to  it  by  the  Constitution,  it  is  equally  its 
duty  not  to  pass  beyond  its  appropriate  sphere  of  action,  and  to  take 
care  not  to  involve  itself  in  discussions  which  properly  belong  to 
other  forums.  No  one,  we  believe,  has  ever  doubted  the  proposition 
that,  according  to  the  institutions  of  this  country,  the  sovereignty  in 
evei-y  State  resides  in  the  people  of  the  State,  and  that  they  may 
alter  and  change  their  form  of  government  at  their  own  pleasure. 
But  whether  they  have  changed  it  or  not,  by  abolishing  an  old 
government,  and  establishing  a  new  one  in  its  place,  is  a  question  to 
be  settled  by  the  political  power.  And  when  that  power  has  decided, 
the  courts  are  bound  to  take  notice  of  its  decision,  and  to  follow  it. 

The  judgment  of  the  Circuit  Court  must,  therefore,  be  affirmed.^ 

1  Mr.  .Tcstice  Woodbury  delivered  a  dissentinc:  opinion. 

In  the  case  of  Georgia  r.  Stanton,  6  Wall.  50  (1867),  in  which  it  was  sought  to 
restrain  defendant  as  Secretary  of  War  from  enforcing  the  Kecoustruction  Acts 
which  it  was  charged  would  result  in  the  destruction  and  overthrow  of  the  existing 
government  of  the  State,  Mu.  Justice  Nelson,  rendering  the  opinion  of  the  court, 
uses  this  language  :  — 

"  That  these  matters,  both  as  stated  in  the  body  of  tlie  bill  and  in  the  pravers  for 
relief,  call  for  the  judgment  of  the  court  upou  political  questions,  and  upon  rights, 


1 


SECT.  IV.]  UNITED   STATES   V.    GERMAINE.  607 


Section  IV.  —  Appointment  and  Removal  of  Officers. 


UNITED   STATES  v.  GERMAINE. 

99  United  States,  508.     1878. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  defendant  was  appointed  by  the  Commissioner  of  Pensions  to 
act  as  surgeon,  under  the  act  of  March  3,  1873,  the  third  section  of 
which  is  thus  stated  in  the  Revised  Statutes  as  sect.  4777 :  — 

"That  the  Commissioner  of  Pensions  be,  and  he  is  hereby,  empow- 
ered to  appoint,  at  his  discretion,  civil  surgeons  to  make  the  periodi- 
cal examination  of  pensioners  which  are  or  may  be  required  by  law, 
and  to  examine  applicants  for  pension,  where  he  shall  deem  an  exam- 
ination by  a  surgeon  appointed  by  him  necessary ;  and  the  fee  for 
such  examinations,  and  the  requisite  certificates  thereof  in  duplicate, 
including  postage  on  such  as  are  transmitted  to  pension  agents,  shall 
be  two  dollars,  which  shall  be  paid  by  the  agent  for  paying  pensions 
in  the  district  within  which  the  pensioner  or  claimant  resides,  out  of 
any  money  appropriated  for  the  payment  of  pensions,  under  such 
regulations  as  the  Commissioner  of  Pensions  may  prescribe." 

He  was  indicted  in  the  district  of  Maine  for  extortion  in  taking 
fees  from  pensioners  to  which  he  was  not  entitled.  The  law  under 
which  he  was  indicted  is  thus  set  forth  in  sect.  12  of  the  act  of  1825 
(4  Stat.  118) :  — 

not  of  persons  or  property,  but  of  a  political  character,  will  hardly  be  denied.  For  the 
riglits  for  the  protection  of  which  our  authority  is  invoked  are  the  rights  of  sov- 
ereignty, of  ])olitical  jurisdiction,  of  government,  of  corporate  existence  as  a  State, 
with  all  its  constitutional  powers  and  privileges.  No  case  of  private  rights  or  private 
property  infringed,  or  in  danger  of  actual  or  threatened  infringement,  is  presented  by 
the  1)111,  in  a  judicial  form,  for  the  judgment  of  tiie  court. 

"  It  is  true  the  bill,  in  setting  forth  the  political  rights  of  the  State,  and  of  its 
people  to  be  protected,  among  other  matters,  avers,  that  Georgia  owns  certain  real 
estate  and  buildings  therein,  State  capitol,  and  executive  mansion,  and  other  real  and 
per.'!onal  property  ;  and  that  putting  the  acts  of  Congress  into  execution,  and  destroy, 
ing  the  State,  wouhl  deprive  it  of  the  possession  and  enjoyment  of  its  ])roperty.  But 
it  is  apparent  that  this  reference  to  property,  and  statement  concerning  it,  are  onlj-  by 
way  of  showing  one  of  the  grievances  resulting  from  tlie  threatened  destruction  of  the 
State,  and  in  aggravation  of  it,  not  as  a  specific  ground  of  relief.  This  matter  of 
property  is  neither  stated  as  an  independent  ground,  nor  is  it  noticed  at  all  in  the 
prayers  for  relief.  Indeed  the  case,  as  made  in  the  bill,  would  have  stopped  far  short 
of  tlie  relief  sought  by  the  State,  and  its  main  purpose  and  design  given  up,  by  re- 
straining its  remedial  effect  simply  to  the  protection  of  the  title  and  possession  of  its 
property.  Such  relief  would  have  called  for  a  very  different  bill  from  the  one 
before  us." 

The  determination  of  a  State  boundary  is  not,  however,  a  political  question  in  this 
sense,  and  may  be  made  by  the  courts.     See  U.  S.  v.  T6xas,  142  U.  S.  621,  in/ru,  p.  676. 


608  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

"Every  officer  of  the  United  States  who  is  guilty  of  extortion 
under  color  of  his  office  shall  be  punished  by  a  fine  of  not  more  than 
$500,  or  by  imprisonment  not  more  than  one  year,  according  to  the 
aggravation  of  his  offence." 

The  indictment  being  remitted  into  the  Circuit  Court,  the  judges 
of  that  court  have  certified  a  division  of  opinion  upon  the  questions 
whether  such  appointment  made  defendant  an  officer  of  the  United 
States  within  the  meaning  of  the  above  act,  and  whether  upon  de- 
murrer to  the  indictment  judgment  should  be  rendered  for  the  United 
States  or  for  defendant. 

The  counsel  for  defendant  insists  that  art.  2,  sect.  2,  of  the  Consti- 
tution, prescribing  how  officers  of  the  United  States  shall  be  appointed, 
is  decisive  of  the  case  before  us.  It  declares  that  "  the  President 
shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Sen- 
ate shall  appoint,  ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Cburt,  and  all  other  officers  of  the  United 
States,  whose  appointments  are  not  herein  otherwise  provided  for  and 
which  shall  be  established  by  law.  But  the  Congress  may,  by  law, 
vest  the  appointment  of  such  inferior  officers  as  they  may  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments." 

The  argument  is  that  provision  is  here  made  for  the  appointment 
of  all  officers  of  the  United  States,  and  that  defendant,  not  being  ap- 
pointed in  either  of  the  modes  here  mentioned,  is  not  an  officer,  though 
he  may  be  an  agent  or  employee  working  for  the  government  and  paid 
by  it,  as  nine-tenths  of  the  persons  rendering  service  to  the  govern- 
ment undoubtedly  are,  without  thereby  becoming  its  officers. 

The  Constitution  for  purposes  of  appointment  very  clearly  divides 
all  its  officers  into  two  classes.  The  primary  class  requires  a  nomi- 
nation by  the  President  and  confirmation  by  the  Senate.  But  fore- 
seeing that  when  offices  became  numerous,  and  sudden  removals 
necessary,  this  mode  might  be  inconvenient,  it  was  provided  that,  in 
regard  to  offices  inferior  to  those  specially  mentioned,  Congress  might 
by  law  vest  their  appointment  in  the  President  alone,  in  the  courts 
of  law,  or  in  the  heads  of  departments.  That  all  persons  who  can  be 
said  to  hold  an  office  under  the  government  about  to  be  established 
under  the  Constitution  were  intended  to  be  included  within  one  or 
the  other  of  these  modes  of  appointment  there  can  be  but  little  doubt. 
This  Constitution  is  the  supreme  law  of  the  land,  and  no  act  of  Con- 
gress is  of  any  validity  which  does  not  rest  on  authority  conferred  by 
that  instrument.  It  is,  therefore,  not  to  be  supposed  that  Congress, 
when  enacting  a  criminal  law  for  the  punishment  of  officers  of  the 
United  States,  intended  to  punish  any  one  not  appointed  in  one  of 
those  modes.  If  the  punishment  were  designed  for  others  than  offi- 
cers as  defined  by  the  Constitution,  words  to  that  effect  would  be 
used,  as  servant,  agent,  person  in  the  service  or  employment  of  the 
government ;  and  this  has  been  done  where  it  was  so  intended,  as  in 


SECT.  IV.]  UNITED   STATES   V,   GERMAINE.  609 

the  sixteenth  section  of  the  act  of  1846,  concerning  embezzlement, 
by  which  any  officer  or  agent  of  the  United  States  and  all  persons 
particijMtinfj  in  the  ad,  are  made  liable.     9  Stat.  59. 

As  the  defendant  here  was  not  appointed  by  the  President  or  by  a 
court  of  law,  it  remains  to  inquire  if  the  Commissioner  of  Pensions, 
by  whom  he  was  appointed,  is  the  head  of  a  department,  within  the 
meaning  of  the  Constitution,  as  is  argued  by  the  counsel  for  plaintiffs. 

That  instrument  was  intended  to  inaugurate  a  new  system  of  gov- 
ernment, and  the  departments  to  which  it  referred  were  not  then  in 
existence.  The  clause  we  have  cited  is  to  be  found  in  the  article 
relating  to  the  executive,  and  the  word  as  there  used  has  reference 
to  the  subdivision  of  the  power  of  the  executive  into  departments, 
for  the  more  convenient  exercise  of  that  power.  One  of  the  defini- 
tions of  the  word  given  by  Worcester  is,  "  a  part  or  division  of  the 
executive  government,  as  the  Department  of  State,  or  of  the  Treas- 
ury." Congress  recognized  this  in  the  act  creating  these  subdivisions 
of  the  executive  branch  by  giving  to  each  of  them  the  name  of  a  de- 
partment. Here  we  have  the  Secretary  of  State,  who  is  by  law  the 
head  of  the  Department  of  State,  the  Departments  of  War,  Interior, 
Treasury,  &c.  And  by  one  of  the  latest  of  these  statutes  reorganiz- 
ing the  Attorney-General's  office  and  placing  it  on  the  basis  of  the 
others,  it  is  called  the  Department  of  Justice.  The  association  of  the 
words  "  heads  of  departments  "  with  the  President  and  the  courts  of 
law  strongly  implies  that  something  different  is  meant  from  the  in- 
ferior commissioners  and  bureau  officers,  who  are  themselves  the 
mere  aids  and  subordinates  of  the  heads  of  the  departments.  Such, 
also,  has  been  the  practice,  for  it  is  very  well  understood  that  the 
appointments  of  the  thousands  of  clerks  in  the  Departments  of 
the  Treasury,  Interior,  and  the  others,  are  made  by  the  heads  of 
those  departments,  and  not  by  the  heads  of  the  bureaus  in  those 
departments. 

So  in  this  same  section  of  the  Constitution  it  is  said  that  the 
President  may  require  the  opinion  in  writing  of  the  principal  officer 
in  each  of  tlie  executive  departments  relating  to  the  duties  of  their 
respective  offices. 

The  word  "department,"  in  both  these  instances,  clearly  means 
the  same  thing,  and  the  principal  officer  in  the  one  case  is  the 
equivalent  of  the  head  of  department  in  the  other. 

While  it  has  been  the  custom  of  the  President  to  require  these 
opinions  from  the  Secretaries  of  State,  the  Treasury,  of  War,  Xavy, 
&c.,  and  his  consultation  with  them  as  members  of  his  cabinet  has 
been  habitual,  we  are  not  aware  of  any  instance  in  which  such 
written  opinion  has  been  officially  required  of  the  head  of  any  of  the 
bureaus,  or  of  any  commissioner  or  auditor  in  these  departments. 

The  case  of  U.  S.  v.  Hartwell  (6  Wall.  385)  is  not,  as  supposed,  in 
conflict  with  these  views.  It  is  clearly  stated  and  relied  on  in  the 
opinion  that  Hartwell's  appointment  was  approved  by  the  Assistant 

39 


610  THE    POWERS   OF   THE   EXECUTirE.  [CHAP.  V. 

Secretary  of  the  Treasury  as  acting  head  of  that  department,  and  he 
was,  therefore,  an  officer  of  the  United  States. 

If  we  look  to  the  nature  of  defendant's  employment,  we  think  it 
equally  clear  that  he  is  not  an  officer.  In  that  case  the  court  said, 
the  term  embraces  the  ideas  of  tenure,  duration,  emolument,  and 
duties,  and  that  the  latter  were  continuing  and  permanent,  not 
occasional  or  temporary.  In  the  case  before  us,  the  duties  are  not 
continuing  and  permanent,  and  they  are  occasional  and  intermittent. 
The  surgeon  is  only  to  act  when  called  on  by  the  Commissioner  of 
Pensions  in  some  special  case,  as  when  some  pensioner  or  claimant 
of  a  pension  presents  himself  for  examination.  He  may  make  fifty 
of  these  examinations  in  a  year,  or  none.  He  is  required  to  keep  no 
place  of  business  for  the  public  use.  He  gives  no  bond  and  takes  no 
oath,  unless  by  some  order  of  the  Commissioner  of  Pensions  of  which 
we  are  not  advised. 

No  regular  appropriation  is  made  to  pay  his  compensation,  which 
is  two  dollars  for  every  certificate  of  examination,  but  it  is  paid  out 
of  money  appropriated  for  paying  pensions  in  his  district,  under  reg- 
ulations to  be  prescribed  by  the  commissioner.  He  is  but  an  agent 
of  the  commissioner,  appointed  by  him,  and  removable  by  him  at  his 
pleasure,  to  procure  information  needed  to  aid  in  the  performance  of 
his  own  official  duties.  He  may  appoint  one  or  a  dozen  persons  to  do 
the  same  thing.  The  compensation  may  amount  to  five  dollars  or 
five  hundred  dollars  per  annum.  There  is  no  penalty  for  his  absence 
from  duty  or  refusal  to  perform,  except  his  loss  of  the  fee  in  the 
given  case.  If  Congress  had  passed  a  law  requiring  the  commissioner 
to  appoint  a  man  to  furnish  each  agency  with  fuel  at  a  price  per  ton 
fixed  by  law  high  enough  to  secure  the  delivery  of  the  coal,  he  would 
have  as  much  claim  to  be  an  officer  of  the  United  States  as  the 
surgeons  appointed  under  this  statute. 

We  answer  that  the  defendant  is  not  an  officer  of  the  United 
States^  and  that  judgment  on  the  demurrer  must  be  entered  in  his 
favor.     Let  it  be  so  certified  to  the  Circuit  Court. 


BLAKE  V.  UNITED  STATES. 

103  United  States,  227.     1880. 

[This  suit  was  instituted  in  the  Court  of  Claims  by  Blake  to 
recover  salary  claimed  to  be  due  him  as  post  chaplain.  A  communi- 
cation by  him  to  the  Secretary  of  War  had  been  treated  and  ac- 
cepted as  a  resignation,  and  one  Gil  more  had  been  appointed  to  the 
position  by  the  President  and   confirmed   by  the    Senate,  and   had 


SECT.  lY.]  BLAKE   V.    UNITED   STATES.  611 

thereafter  performed  the  duties  of  the  office  and  received  the  salary 
therefor.  It  was  afterwards  found  by  the  President  that  Blake  was 
insane  at  the  time  he  wrote  his  resignation,  and  on  his  recovery  he 
was  reappointed  to  a  similar  position,  but  his  claim  for  salary  in  the 
mean  time  was  left  for  adjudication  in  the  Court  of  Claims,  where  it 
was  dismissed,  and  Elake  appeals.] 

Mr.  Justice  Harlax  delivered  the  opinion  of  the  court. 

The  claim  is  placed  upon  the  ground  that  before,  at  the  date  of, 
and  subsequent  to,  the  letter  addressed  to  the  Secretary  of  War,  which 
was  treated  as  his  resignation,  he  was  insane  in  a  sense  that  rendered 
him  irresponsible  for  his  acts,  and  consequently  that  his  supposed 
resignation  was  inoperative  and  did  not  have  the  effect  to  vacate  his 
office.  Did  the  appointment  of  Gilmore,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  the  post-chaplaincy  held  by  Blake,  operate, 
propria  virjore,  to  discharge  the  latter  from  the  service,  and  invest  the 
former  with  the  rights  and  privileges  belonging  to  that  office  ?  If 
this  question  be  answered  in  the  affirmative,  it  will  not  be  necessary 
to  inquire  whether  Blake  was,  at  the  date  of  the  letter  of  Dec.  24, 
18G8,  in  such  condition  of  mind  as  to  enable  him  to  perform,  in  a 
legal  sense,  the  act  of  resigning  his  office ;  or,  whether  the  acceptance 
of  his  resignation,  followed  by  the  appointment  of  his  successor,  by 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate,  is 
not,  in  view  of  the  relations  of  the  several  departments  of  the 
government  to  each  other,  conclusive,  in  this  collateral  proceeding,  as 
to  the  fact  of  a  valid  effectual  resignation. 

From  the  organization  of  the  government  under  the  present  Con- 
stitution, to  the  commencement  of  the  recent  war  for  the  suppression 
of  the  rebellion,  the  power  of  the  President,  in  the  absence  of  statu- 
tory regulations,  to  dismiss  from  the  service  an  officer  of  the  army  or 
navy,  was  not  questioned  m  any  adjudged  case,  or  by  any  depart- 
ment of  the  government. 

Upon  the  general  question  of  the  right  to  remove  from  office,  as 
incident  to  the  power  to  appoint,  Ex  parte  Hennen  (13  Pet.  259)  is 
instructive.  That  case  involved  the  authority  of  a  district  judge  of 
the  United  States  to  remove  a  clerk  and  appoint  some  one  in  his 
place. 

The  court,  among  other  things,  said  :  "  All  offices,  the  tenure  of 
which  is  not  fixed  by  the  Constitution  or  limited  by  law,  must  be  held 
either  during  good  behavior,  or  (which  is  the  same  thing  in  contem- 
plation of  law)  during  the  life  of  the  incumbent,  or  must  be  held  at 
the  will  and  discretion  of  some  department  of  the  government,  and. 
subject  to  removal  at  pleasure. 

"  It  cannot  for  a  moment  be  admitted  that  it  was  the  intention  of 
the  Constitution  that  those  offices  which  are  denominated  inferior 
offices  should  be  held  during  life.  And  if  removable  at  pleasure,  by 
whom  is  such  removal  to  be  made  ?  In  the  absence  of  all  constitu- 
tional provision  or  statutory  regulation,  it  would  seem  to  be  a  sound 


612  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

and  necessary  rule  to  consider  the  power  of  removal  as  incident  to 
the  power  of  appointment.  This  power  of  removal  from  office  was  a 
subject  much  disputed,  and  upon  which  a  great  diversity  of  opinion 
was  entertained  in  the  early  history  of  this  government.  This  re- 
lated, however,  to  the  power  of  the  President  to  remove  officers 
appointed  with  the  concurrence  of  the  Senate;  and  the  great  ques- 
tion was  whether  the  removal  was  to  be  by  the  President  alone,  or 
with  the  concurrence  of  the  Senate,  both  constituting  the  appointing 
power.  Xo  one  denied  the  power  of  the  President  and  Senate  jointly 
to  remove,  where  the  tenure  of  the  office  was  not  fixed  by  the  Consti- 
tution ;  which  was  a  full  recognition  of  the  principle  that  the  power 
of  removal  was  incident  to  the  power  of  appointment.  But  it  was 
very  early  adopted,  as  the  practical  construction  of  the  Constitution, 
that  this  power  was  vested  in  the  President  alone.  And  such  would 
appear  to  have  been  the  legislative  construction  of  the  Constitution." 
1  Kent,  Com.  309 ;  2  Story,  Const.  (4th  ed.),  sects.  1537-1540,  and 
notes ;  2  Marshall,  Life  of  Washington,  162 ;  Sergeant,  Const.  Law, 
372;  Rawle,  Const.,  c.  14. 

During  the  administration  of  President  Tyler,  the  question  was 
propounded  by  the  Secretary  of  the  Navy  to  Attorney-General 
Legare,  whether  the  President  could  strike  an  officer  from  the  rolls, 
without  a  trial  by  a  court-martial,  after  a  decision  in  that  officer's 
favor  by  a  court  of  inquiry  ordered  for  the  investigation  of  his  con- 
duct. His  response  was  :  "  Whatever  I  might  have  thought  of  the 
power  of  removal  from  office,  if  the  subject  were  res  Integra,  it  is  now 
too  late  to  dispute  the  settled  construction  of  1789,  It  is  according 
to  that  construction,  from  the  very  nature  of  executive  power,  abso- 
lute in  the  President,  subject  only  to  his  responsibility  to  the  country 
(his   constituents)  for  a   breach   of   such  a  vast  and   solemn   trust. 

3  Story,  Com.  Const.  397,  sect.  1538.  It  is  obvious  that  if  necessity 
is  a  sufficient  ground  for  such  a  concession  in  regard  to  officers  in  the 
civil  service,  the  argument  applies  a  multo  fortiori  to  the  military 
and  naval  departments.  ...  I  have  no  doubt,  therefore,  that  the 
President  had  the  constitutional  power  to  do  what  he  did,  and  that 
the  officer  in  question  is  not  in  the  service  of  the  United  States." 
The  same  views  were  expressed  by  subsequent  attorneys-general. 

4  Opin.  1 ;  6  id.  4 ;  8  id.  233 ;  12  id.  424  ;  15  id.  421. 

In  Du  Barry's  Case  (4  id.  612)  Attorney-General  Clifford  said  that 
the  attempt  to  limit  the  exercise  of  the  power  of  removal  to  the  exec- 
utive officers  in  the  civil  service  found  no  support  in  the  language  of 
the  Constitution  nor  in  any  judicial  decision  ;  and  that  there  was  no 
foundation  in  the  Constitution  for  any  distinction  in  this  regard 
between  civil  and  military  officers. 

In  Lansing's  Case  (6  id.  4)  the  question  arose  as  to  the  power  of 
the  President,  in  his  discretion,  to  remove  a  military  storekeeper. 
Attorney-General  Gushing  said :  "  Conceding,  however,  that  military 
storekeepers  are  officers,  or,  at  least,  quasi  officers,  of  the  army,  it 


SECT.  lY.]  BLAKE    V.    UNITED    STATES.  618 

does  not  follow  that  they  are  not  subject  to  be  deprived  of  their  com- 
mission at  the  will  of  the  Preside.it. 

"  I  am  not  aware  of  any  ground  of  distinction  in  this  respect,  so 
far  as  regards  the  strict  question  of  law,  between  officers  of  the 
army  and  any  other  officers  of  the  government.  As  a  general  rule, 
with  the  exception  of  judicial  officers  only,  they  all  hold  their  com- 
missions by  the  same  tenure  in  this  respect.  Keasons  of  a  special 
nature  may  be  deemed  to  exist  why  the  rule  should  not  be  applied  to 
military  in  the  same  way  as  it  is  to  civil  officers,  but  the  legal  appli- 
cability to  both  classes  of  officers  is,  it  is  conceived,  the  settled  con- 
struction of  the  Constitution.  It  is  no  answer  to  this  doctrine  to  say 
that  officers  of  the  army  are  subject  to  be  deprived  of  their  commis- 
sions by  the  decision  of  a  court-martial.  So  are  civil  officers  by 
impeachment.  The  difference  between  the  two  cases  is  in  the  form 
and  mode  of  trial,  not  in  the  principle,  which  leaves  unimpaired  in 
both  cases  alike  the  whole  constitutional  power  of  the  President. 

*•  It  seems  unnecessary  in  this  case  to  recapitulate  in  detail  the 
elements  of  constitutional  construction  and  historical  induction  by 
which  this  doctrine  has  been  established  as  the  public  law  of  the 
United  States.  I  observe  only  that,  so  far  as  regards  the  question  of 
abstract  power,  I  know  of  nothing  essential  in  the  grounds  of  legal 
conclusion,  which  have  been  so  thoroughly  explored  at  different  times 
in  respect  of  civil  officers,  which  does  not  apply  to  officers  of  the 
army." 

The  same  officer,  subsequently,  when  required  to  consider  this 
question,  said  that  "  the  power  has  been  exercised  in  many  cases  with 
approbation,  express  or  implied,  of  the  Senate,  and  without  challenge 
by  any  legislative  act  of  Congress.  And  it  is  expressly  reserved 
in  every  commission  of  the  officers,  both  of  the  navy  and  army." 
8  Opin.  231. 

Such  was  the  established  practice  in  the  Executive  Department, 
and  such  the  recognized  power  of  the  President  up  to  the  passage  of 
the  act  of  July  17,  1862,  c.  200  (12  Stat.  596),  entitled  "An  Act  to 
define  the  pay  and  emoluments  of  certain  officers  of  the  army,  and  for 
other  purposes,"  the  seventeenth  section  of  which  provides  that  "  the 
President  of  the  United  States  be,  and  hereby  is,  authorized  and 
requested  to  dismiss  and  discharge  from  the  military  service,  either 
in  the  army,  navy,  marine  corps,  or  volunteer  force,  any  officer  for 
any  cause  which,  in  his  judgment,  either  renders  such  officer  unsuit- 
able for,  or  whose  dismission  would  promote,  the  public  service." 

In  reference  to  that  act  Attorney-General  Devens  (15  Opin.  421) 
said,  with  much  reason,  that  so  far  as  it  "gives  authority  to  the 
President,  it  is  simply  declaratory  of  the  long-establislied  law.  It  is 
probable  that  the  force  of  the  act  is  to  be  found  in  the  word  're- 
quested,' by  which  it  was  intended  to  re-enforce  strongly  this  power 
in  the  hands  of  the  President  at  a  great  crisis  of  the  State." 

The  act  of  March  3,  1865,  c.  79  (13  Stat.  489),  provides  that,  in 


614  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

case  any  officer  of  the  military  or  naval  service,  thereafter  dismissed 
by  the  authority  of  tiie  President,  shall  make  application  in  writing 
tor  a  trial,  setting  forth,  under  oath,  tiiat  he  has  been  wrongfully  and 
unjustly  dismissed,  "the  President  shall,  as  soon  as  the  necessities 
ot  the  service  may  permit,  convene  a  court-martial  to  try  such  officer 
on  the  charges  on  which  he  was  dismissed.  And  if  such  court- 
martial  shall  not  award  dismissal  or  death  as  the  punishment  of  such 
officer,  the  order  of  dismissal  shall  be  void.  And  if  the  court- 
martial  aforesaid  shall  not  be  convened  for  the  trial  of  such  officer 
within  six  months  from  the  presentation  of  his  application  for  trial, 
the  sentence  of  dismissal  shall  be  void." 

Thus,  so  far  as  legislative  enactments  are  concerned,  stood  the  law 
in  reference  to  dismissals,  of  army  or  naval  officers,  by  the  President, 
nntil  the  passage  of  the  army  appropriation  act  of  July  17,  1866, 
c.  176  (14  iStat.  92),  the  fifth  section  of  which  is  as  follows :  — 

'•  That  section  seventeen  of  an  act,  entitled  '  An  Act  to  define  the 
pay  and  emoluments  of  certain  officers  of  the  army,'  approved  July 
seventeenth,  eighteen  hundred  and  sixty-two,  and  a  resolution,  en- 
titled 'A  Kesolution  to  authorize  the  President  to  assign  the  com- 
mand of  troops  in  the  same  field,  or  department,  to  officers  of  the 
same  grade,  without  regard  to  seniority,'  approved  April  fourth, 
eighteen  hundred  and  sixty-two,  be,  and  the  same  are  hereby  re- 
pealed. And  no  officer  in  the  military  or  naval  service  shall,  in  time 
of  peace,  be  dismissed  from  the  service,  except  upon  and  in  pursu- 
ance of  the  sentence  of  a  court-martial  to  that  effect,  or  in  commuta- 
tion thereof." 

Two  constructions  may  be  placed  upon  the  last  clause  of  that  sec- 
tion without  doing  violence  to  the  words  used.  Giving  thein  a  literal 
interpretation,  it  may  be  construed  to  mean,  that  although  the 
tenure  of  army  and  naval  officers  is  not  fixed  by  the  Constitution, 
they  shall  not,  in  time  of  peace,  be  dismissed  from  the  service,  under 
any  circumstances,  or  for  any  cause,  or  by  any  authority  whatever, 
except  in  pursuance  of  the  sentence  of  a  court-martial  to  that  effect, 
or  in  commutation  thereof.  Or,  in  view  of  the  connection  in  which 
the  clause  appears,  —  following,  as  it  does,  one  in  the  same  section 
repealing  provisions  touching  the  dismissal  of  officers  by  the  Presi- 
dent, alone,  and  to  assignments,  by  him,  of  the  command  of  troops, 
without  regard  to  seniority  of  officers,  — it  may  be  held  to  mean,  that, 
whereas,  under  the  act  of  July  17,  1S62,  as  well  as  before  its  passage, 
the  President,  alone,  was  authorized  to  dismiss  an  army  or  naval 
officer  from  the  service  for  any  cause  which,  in  his  judgment,  either 
rendered  such  officer  unsuitable  for,  or  whose  dismissal  would  pro- 
mote, the  public  service,  he  alone  shall  not,  thereafter,  in  time  of 
peace,  exercise  such  power  of  dismissal,  except  in  pursuance  of  a 
court-martial  sentence  to  that  effect,  or  in  commutation  thereof. 
Although  this  question  is  not  free  from  difficulty,  we  are  of  opinion 
that  the  latter  is  the  true  construction  of  the  act.     That  set'tion 


SECT,  IV.] 


BLAKE    V.    UNITED    STATES.  615. 


originated  in  the  Senate  as  an  amendment  of  the  army  appropriation 
bill  which  had  previously  passed  the  House  of  Representatives. 
Cong.  Globe,  39th  Congress,  pp.  3254,  3405,  3575,  and  3589.  It  is 
supposed  to  have  been  suggested  by  the  serious  ditferences  existing, 
or  which  were  apprehended,  between  the  legislative  and  executive 
brandies  of  the  government  in  reference  to  the  enforcement,  in  the 
States  lately  in  rebellion,  of  the  reconstruction  acts  of  Congress. 
Most,  if  not  all,  of  the  senior  officers  of  the  army  enjoyed,  as  we  may 
know  from  the  public  history  of  that  period,  the  confidence  of  the 
political  organization  then  controlling  the  legislative  branch  of  the 
government.  It  was  believed  that,  within  the  limits  of  the  authority 
conferred  by  statute,  they  would  carry  out  the  policy  of  Congress,  as 
indicated  in  the  reconstruction  acts,  and  su})press  all  attempts  to 
treat  them  as  unconstitutional  and  void,  or  to  overthrow  them  by 
force.  Hence,  by  way  of  preparation  for  the  conflict  then  appre- 
hended between  the  executive  and  legislative  departments  as  to  the 
enforcement  of  those  acts.  Congress,  by  the  fifth  section  of  the  act  of 
July  13,  1866,  repealed  not  only  the  seventeenth  section  of  the  act 
of  July  17,  1862,  but  also  the  resolution  of  April  4, 1862,  which  author- 
ized the  President,  whenever  military  operations  required  the  pres- 
ence of  two  or  more  officers  of  the  same  grade,  in  the  same  field  or 
department,  to  assign  the  command  without  regard  to  seniority  of 
rank.  In  furtherance,  as  we  suppose,  of  the  objects  of  that  legisla- 
tion, was  the  second  section  of  the  army  appropriation  act  of  March 
2,  1867,  c.  170  (14  Stat.  486),  establishing  the  headquarters  of  the 
general  of  the  army  at  Washington,  requiring  all  orders  and  instruc- 
tions relating  to  military  operations  issued  by  the  President  or 
Secretary  of  War  to  be  issued  through  that  officer,  and,  in  case  of  his 
inability,  through  the  next  in  rank,  and  declaring  that  the  general  of 
the  army  "  shall  not  be  removed,  suspended,  or  relieved  from  com- 
mand, or  assigned  to  duty  elsewhere  than  at  said  headquarters, 
except  at  his  own  request,  without  the  previous  approval  of  the 
Senate,  and  any  orders  or  instructions  relating  to  military  operations 
issued  contrary  to  the  requirements  of  this  section  shall  be  null  and 
void ;  and  any  officer  who  shall  issue  orders  or  instructions  contrary 
to  the  provision  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor in  office,"  &c. 

Our  conclusion  is  that  there  was  no  purpose,  by  the  fifth  section  of 
the  act  of  July  13,  1866,  to  withdraw  from  the  President  the  power, 
with  the  advice  and  consent  of  the  Senate,  to  supersede  an  officer  in 
the  military  or  naval  service  by  the  appointment  of  some  one  in  his 
place.  If  the  power  of  the  President  and  Senate,  in  this  regard, 
could  be  constitutionally  subjected  to  restrictions  by  statute  (as  to 
which  we  express  no  opinion),  it  is  sufficient  for  the  present  case  to 
say  that  Congress  did  not  intend  by  that  section  to  impose  them.  It 
is,  in  substance  and  effect,  nothing  more  than  a  declaration,  that  the 
power  theretofore  exercised  by  the  President,  without   the  concur- 


616  THE   POWERS   OF   THE   EXECUTIVE.  [CHAP.  V. 

rence  of  the  Senate,  of  summarily  dismissing  or  discharging  officers 
of  the  army  or  the  navy,  whenever  in  his  judgment  the  interest  of 
the  service  required  it  to  be  done,  shall  not  exist,  or  be  exercised,  in 
time  of  peace,  except  in  pursuance  of  the  sentence  of  a  court-martial 
or  in  commutation  thereof.  There  was,  as  we  think,  no  intention  to 
deny  or  restrict  the  power  of  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  displace  them  by  the  apj^ointmeut  of 
others  in  their  places. 

It  results  that  the  appointment  of  Gilmore,  with  the  advice  and 
consent  of  the  Senate,  to  the  office  held  by  Blake,  operated  in  law  to 
supersede  the  latter,  who  thereby,  in  virtue  of  the  new  appointment, 
ceased  to  be  an  officer  in  the  army  from  and  after,  at  least,  the  date 
at  which  that  appointment  took  effect,  —  and  this,  without  reference 
to  Blake's  mental  capacity  to  understand  what  was  a  resignation. 
He  was,  consequently,  not  entitled  to  pay  as  post-chaplain  after  July 
2,  1870,  from  which  date  his  successor  took  rank.  Having  ceased  to 
be  an  officer  in  the  army,  he  could  not  again  become  a  post-chaplain, 
except  upon  a  new  appointment,  by  and  with  the  advice  and  consent 
of  the  Senate.     Mimmack  v.  United  States,  97  U.  S.  426,  437. 

As  to  that  portion  of  the  claim  covering  the  period  between  April 
28,  1869,  and  July  2,  1870,  it  is  only  necessary  to  say,  that,  even 
were  it  conceded  that  the  appellant  did  not  cease  to  be  an  officer  in 
the  army  by  reason  of  the  acceptance  of  his  resignation,  tendered 
when  he  was  mentally  incapable  of  understanding  the  nature  and 
effect  of  such  an  act,  he  cannot  recover  in  this  action.  His  claim  for 
salary  during  the  above  period  accrued  more  than  six  years,  and  the 
disability  of  insanity  ceased  more  than  three  years  before  the  com- 
mencement of  this  action.  The  government  pleads  the  Statute  of 
Limitations,  and  it  must  be  sustained.  Congress  alone  can  give  him 
the  relief  which  he  seeks.  Judgment  affirmed. 


i 


SECT.  I.  a.]       OSBORN   V.   BANK   OF   THE   UNITED    STATES. 


617 


CHAPTER   VI. 
THE    JUDICIAL    DEPARTMENT. 


Section  I.  —  Constitutional  Grant  of  Jurisdiction. 


a.    Cases  arising  under  Constitution,  Lmvs,  or  Treaties  of  the 

United  States. 

OSBOEX  AND  Others,  Appellants,  v.  THE  PRESIDENT,  DI- 
RECTORS, AND  COMPANY  OF  THE  BANK  OF  THE 
UNITED   STATES,    Respondents. 

9  Wheaton,  738;  6  Curtis,  25L     1824. 

[This  suit  was  brought  in  the  Circuit  Court  of  the  United  States 
for  Ohio  by  the  bank  to  restrain  Osborn  and  others,  officers  of  the 
State,  from  collecting  a  State  tax  on  the  bank.  A  decree  was  ren- 
dered against  the  State  officers,  who  appealed.  In  the  Supreme 
Court  a  re-argument  was  requested  upon  the  point  of  the  constitu- 
tionality and  effect  of  the  provision  in  the  charter  of  the  bank, 
which  was  incorporated  under  act  of  Congress,  authorizing  it  to  sue 
in  the  Circuit  Courts  of  the  United  States.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

2.  We  will  now  consider  the  constitutionality  of  the  clause  in  the 
act  of  incorporation,  which  authorizes  the  bank  to  sue  in  the  Federal 
courts. 

In  support  of  this  clause,  it  is  said  that  the  legislative,  executive, 
and  judicial  powers  of  every  well  constructed  government  are  co- 
extensive with  each  other;  that  is,  they  are  potentially  coextensive. 
The  Executive  Department  may  constitutionally  execute  every  law 
which  the  legislature  may  constitutionally  make,  and  the  Ju<licial 
Department  may  receive  from  the  legislature  the  power  of  construing 
every  such  law.  All  governments  which  are  not  extremely  defective 
in  their  organization  must  possess  Avithin  themselves  the  means  of 
expounding  as  well  as  enforcing  their  own  laws.  If  we  examine  the 
Constitution  of  the  United  States,  we  find  that  its  framers  kept  this 


t!18  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

great  political  principle  in  view.  The  2l1  article  vests  the  whole 
executive  power  in  the  President;  and  the  3d  article  declares;  "that 
the  judicial  power  shall  extend  to  all  cases  in  law  and  equity  arising 
under  this  Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority." 

This  clause  enables  the  Judicial  Department  to  receive  jurisdiction 
to  the  full  extent  of  the  Constitution,  laws,  and  treaties  of  the  United 
States,  when  any  question  respecting  them  shall  assume  such  a  form 
that  the  judicial  power  is  capable  of  acting  on  it.  That  power  is 
capable  of  acting  only  when  the  subject  is  submitted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  law.  It  then  be- 
comes a  case,  and  the  Constitution  declares  that  the  judicial  power 
shall  extend  to  all  cases  arising  under  the  Constitution,  laws,  and 
treaties  of  the  United  States. 

The  suit  of  The  Bank  of  the  United  States  v.  Osborn  and  others 
is  a  case,  and  the  question  is,  whether  it  arises  under  a  law  of  the 
United  States. 

The  appellants  contend  that  it  does  not,  because  several  questions 
may  arise  in  it  which  depend  on  the  general  principles  of  the  law, 
not  on  any  act  of  Congress. 

If  this  were  sufficient  to  withdraw  a  case  from  the  jurisdiction  of 
the  Federal  courts,  almost  every  case,  although  involving  the  con- 
struction of  a  law,  would  be  withdrawn ;  and  a  clause  in  the  Consti- 
tution relating  to  a  subject  of  vital  importance  to  the  government, 
and  expressed  in  the  most  comprehensive  terms,  would  be  construed 
to  mean  almost  nothing.  There  is  scarcely  any  case  every  part  of 
"which  depends  on  the  Constitution,  laws,  or  treaties  of  the  United 
States.  The  questions  whether  the  fact  alleged  as  the  foundation 
of  the  action  be  real  or  fictitious ;  whether  the  conduct  of  the  plain- 
tiff has  been  such  as  to  entitle  him  to  maintain  his  action ;  whether 
his  right  is  barred ;  whether  he  has  received  satisfaction,  or  has  in 
any  manner  released  his  claims,  are  questions,  some  or  all  of  which 
may  occur  in  almost  every  case ;  and  if  their  existence  be  sufficient 
to  arrest  the  jurisdiction  of  the  court,  words  which  seem  intended  to 
be  as  extensive  as  the  Constitution,  laws,  and  treaties  of  the  Union, 
which  seem  designed  to  give  the  courts  of  the  government  the  con- 
struction of  all  its  acts,  so  far  as  they  affect  the  rights  of  individuals, 
would  be  reduced  to  almost  nothing. 

In  those  cases  in  which  original  jurisdiction  is  given  to  the  Supreme 
Court,  the  judicial  power  of  the  United  States  cannot  be  exercised  in 
its  appellate  form.  In  every  other  case  the  power  is  to  be  exercised 
in  its  original  or  appellate  form,  or  both,  as  the  wisdoni  of  Congress 
may  direct.  With  the  exception  of  these  cases  in  which  original 
jurisdiction  is  given  to  this  court,  there  is  none  to  which  the  judi- 
cial power  extends,  from  which  the  original  jurisdiction  of  the 
inferior  courts  is  excluded  by  the  Constitution.  Original  jurisdic- 
tion, so  far  as  the  Constitution  gives  a  rule,  is  coextensive  with  the 


SECT.  1.  a.]        OSBORN   V.    BANK    OF   THE    UNITED   STATES.  619 

judicial  power.  We  find  in  the  Constitution  no  prohibition  to  its 
exercise,  iu  every  case  iu  which  tlie  judicial  power  can  be  exercised. 
It  would  be  a  very  bold  construction  to  say  that  this  power  could  be 
applied  in  its  appellate  form  only,  to  the  most  important  class  of 
cases  to  which  it  is  applicable. 

The  Constitution  establishes  the  Supreme  Court,  and  defines  its 
jurisdiction.  It  enumerates  cases  iu  which  its  jurisdiction  is  original 
and  exclusive;  and  then  defines  that  which  is  appellate;  but  does 
not  insinuate  that,  in  any  such  case,  the  power  cannot  be  exercised 
in  its  original  form  by  courts  of  original  jurisdiction.  It  is  not  in- 
sinuated that  the  judicial  power,  in  cases  depending  on  the  character 
of  the  cause,  cannot  be  exercised  in  the  first  instance  iu  the  courts  of 
the  Union,  but  must  first  be  exercised  in  the  tribunals  of  the  State ; 
tribunals  over  which  the  government  of  the  Union  has  no  adequate 
control,  and  which  may  be  closed  to  any  claim  asserted  under  a  law 
of  the  United  States. 

We  perceive,  then,  no  ground  on  which  the  proposition  can  be 
maintained,  that  Congress  is  incapable  of  giving  the  Circuit  Courts 
original  jurisdiction,  in  any  case  to  which  the  appellate  jurisdiction 
extends. 

We  ask,  then,  if  it  can  be  sufficient  to  exclude  this  jurisdiction, 
that  the  case  involves  questions  depending  on  general  principles  ? 
A  cause  may  depend  on  several  questions  of  fact  and  law.  Some 
of  these  may  depend  on  the  construction  of  a  law  of  the  United 
States;  others  on  principles  unconnected  with  that  law.  If  it  be  a 
sufficient  foundation  for  jurisdiction,  that  the  title  or  right  set  up 
by  the  party,  may  be  defeated  by  one  construction  of  the  Constitu- 
tion or  law  of  the  United  States,  and  sustained  by  the  opposite  con- 
struction, provided  the  facts  necessary  to  support  the  action  be  made 
out,  then  all  the  other  questions  must  be  decided  as  incidental  to 
this,  which  gives  that  jurisdiction.  Those  other  questions  cannot 
arrest  the  proceedings.  Under  this  construction,  the  judicial  power 
of  the  Union  extends  effectively  and  beneficially  to  that  most  impor- 
tant class  of  cases,  which  depend  on  the  character  of  the  cause.  On 
the  opposite  construction,  the  judicial  power  never  can  be  extended 
to  a  whole  case,  as  expressed  by  the  Constitution,  but  to  those  parts 
of  cases  only  which  present  the  particular  question  involving  the 
construction  of  the  Constitution  or  the  law.  We  say,  it  never  can 
be  extended  to  the  whole  case,  because,  if  the  circumstance  that 
other  points  are  involved  in  it  shall  disable  Congress  from  author- 
izing the  courts  of  the  Union  to  take  jurisdiction  of  the  original 
cause,  it  eqiuilly  disables  Congress  from  authorizing  those  courts 
to  take  jurisdiction  of  the  whole  cause,  on  an  appeal,  and  thus  will 
be  restricted  to  a  single  question  in  that  cause ;  and  words  obviously 
intended  to  secure  to  those  who  claim  rights  under  the  Constitution, 
laws,  or  treaties  of  the  United  States,  a  trial  in  the  Federal  courts, 
will  be  restricted  to  the  insecure  remedy  of  an  appeal  upon  an  in« 


620  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

sulated  point,  after  it  Las  received  that  shape  which  may  be  given  to 
it  by  another  tribunal,  into  which  he  is  forced  against  his  will. 

We  think,  then,  that  when  a  question  to  which  the  judicial  power 
of  the  Union  is  extended  by  the  Constitution,  forms  an  ingredient  of 
the  original  cause,  it  is  in  the  power  of  Congress  to  give  the  Circuit 
Courts  jurisdiction  of  that  cause,  although  other  questions  of  fact  or 
of  law  may  be  involved  in  it. 

The  case  of  the  bank  is,  we  think,  a  very  strong  case  of  this  descrip- 
tion. The  charter  of  incorporation  not  only  creates  it,  but  gives  it 
every  faculty  which  it  possesses.  The  power  to  acquire  rights  of 
any  description,  to  transact  business  of  any  description,  to  make 
contracts  of  any  description,  to  sue  on  those  contracts,  is  given  and 
measured  by  its  charter,  and  that  charter  is  a  law  of  the  "United 
States.  This  being  can  acquire  no  right,  make  no  contract,  bring  no 
suit,  which  is  not  authorized  by  a  law  of  the  United  States.  It  is 
not  only  itself  the  mere  creature  of  a  law,  but  all  its  actions  and  all 
its  rights  are  dependent  on  the  same  law.  Can  a  being,  thus  consti- 
tuted, have  a  case  which  does  not  arise  literally,  as  well  as  substan- 
tially, under  the  law  ? 

Take  the  case  of  a  contract,  which  is  put  as  the  strongest  against 
the  bank. 

When  a  bank  sues,  the  first  question  which  presents  itself,  and 
which  lies  at  the  foundation  of  the  cause,  is,  has  this  legal  entit}-  a 
right  to  sue  ?  Has  it  a  right  to  come,  not  into  this  court  particu- 
larly, but  into  any  court  ?  This  depends  on  a  law  of  the  United 
States.  The  next  question  is,  has  this  being  a  right  to  make  this 
particular  contract  ?  If  this  question  be  decided  in  the  negative, 
the  cause  is  determined  against  the  plaintiff;  and  this  question,  too, 
depends  entirely  on  a  law  of  the  United  States.  These  are  impor- 
tant questions,  and  they  exist  in  every  possible  case.  The  right  to 
sue,  if  decided  once,  is  decided  forever;  but  the  power  of  Congress 
was  exercised  antecedently  to  the  first  decision  on  that  right,  and  if 
it  was  constitutional  then,  it  cannot  cease  to  be  so,  because  the  par- 
ticular question  is  decided.  It  may  be  revived  at  the  will  of  the 
party,  and  most  probably  would  be  renewed,  were  the  tribunal  to  be 
changed.  But  the  question  respecting  the  right  to  make  a  particular 
contract,  or  to  acquire  a  particular  property,  or  to  sue  on  account 
of  a  particular  injur}*,  belongs  to  every  particular  case,  and  may  be 
renewed  in  every  case.  The  question  forms  an  original  ingredient 
in  every  cause.  Whether  it  be  in  fact  relied  on  or  not,  in  the  de- 
fence, it  is  still  a  part  of  the  cause,  and  may  be  relied  on.  The  right 
of  the  plaintiff  to  sue  cannot  depend  on  the  defence  which  the  de- 
fendant may  choose  to  set  up.  His  right  to  sue  is  anterior  to  that 
defence,  and  must  depend  on  the  state  of  things  when  the  action  is 
brought.  The  questions  which  the  case  involves,  then,  must  deter- 
mine its  character,  whether  those  questions  be  made  in  the  cause  or 
not. 


SECT.  I.  a.]        OSBORN    V.   BANK    OF   THE   UNITED    STATES.  621 

The  appellants  say,  that  the  case  arises  on  the  contract ;  but  the 
validity  of  the  contract  depends  on  a  law  of  the  United  States,  and 
the  plaintiff  is  compelled,  in  every  case,  to  show  its  validity.  The 
case  arises  emphatically  under  the  law.  The  act  of  Congress  is  its 
foundation.  The  contract  could  never  have  been  made,  but  under 
the  authority  of  that  act.  The  act  itself  is  the  first  ingredient  in 
the  case,  is  its  origin,  is  that  from  which  every  other  part  arises. 
That  other  questions  may  also  arise,  as  the  execution  of  the  contract, 
or  its  performance,  cannot  change  the  case,  or  give  it  any  other 
origin  than  the  charter  of  incorporation.  The  action  still  originates 
in,  and  is  sustained  by,  that  charter. 

The  clause  giving  the  bank  a  right  to  sue  in  the  Circuit  Courts 
of  the  United  States  stands  on  the  same  principle  with  the  acts 
authorizing  officers  of  the  United  States  who  sue  in  their  own  names, 
to  sue  in  the  courts  of  the  United  States.  The  Postmaster-General, 
for  example,  cannot  sue  under  that  part  of  the  Constitution  which 
gives  jurisdiction  to  the  Federal  courts,  in  consequence  of  the  charac- 
ter of  the  party,  nor  is  he  authorized  to  sue  by  tlie  Judiciary  Act. 
1  Stats,  at  Large,  73.  He  comes  into  the  courts  of  the  Union 
under  the  authority  of  an  act  of  Congress,  the  constitutionality  of 
which  can  only  be  sustained  by  the  admission  that  his  suit  is  a  case 
arising  under  a  law  of  the  United  States.  If  it  be  said  that  it  is 
such  a  case,  because  a  law  of  the  United  States  authorizes  the  con- 
tract, and  authorizes  the  suit,  the  same  reasons  exist  with  respect  to 
a  suit  brought  by  the  bank.  That,  too,  is  such  a  case ;  because  that 
suit,  too,  is  itself  authorized,  and  is  brought  on  a  contract  authorized 
by  a  law  of  the  United  States.  It  depends  absolutely  on  that  law, 
and  cannot  exist  a  moment  without  its  authority. 

If  it  be  said  that  a  suit  brought  by  the  bank  may  depend  in  fact 
altogether  on  questions  unconnected  with  any  law  of  the  United 
States,  it  is  equally  true,  with  respect  to  suits  brought  by  the  Post- 
master-General. The  plea  in  bar  may  be  payment,  if  the  suit  be 
brought  on  a  bond,  or  7io7i  assumpsit,  if  it  be  brought  on  an  open 
account,  and  no  other  question  may  arise  than  what  respects  the 
complete  discharge  of  the  demand.  Yet  the  constitutionality  of 
the  act  authorizing  the  Postmaster-General  to  sue  in  the  courts  of  the 
United  States  has  never  been  drawn  into  question.  It  is  sustained 
singly  by  an  act  of  Congress,  standing  on  that  construction  of  the 
Constitution  which  asserts  the  right  of  the  legislature  to  give  original 
jurisdiction  to  the  Circuit  Courts,  in  cases  arising  under  a  law  of  the 
United  States. 

The  clause  (1  Stats,  at  Large,  322),  in  the  patent  law,  authorizing 
suits  in  the  Circuit  Courts,  stands,  we  think,  on  the  same  principle. 
Such  a  suit  is  a  case  arising  under  a  law  of  the  United  States.  Yet 
the  defendant  may  not,  at  the  trial,  question  the  validity  of  the 
patent,  or  make  any  point  which  requires  the  construction  of  an  act 
of  Congress.     He  may  rest  his  defence  exclusively  on  the  fact  that 


622  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VL 

he  has  not  violated  the  right  of  the  plaintiff.  That  this  fact  becomes 
the  sole  question  made  in  the  cause,  cannot  oust  the  jurisdiction  of 
the  court,  or  establish  the  position,  that  the  case  does  not  arise  under 
a  law  of  the  United  States. 

It  is  said  that  a  clear  distinction  exists  between  the  party  and  the 
cause;  that  the  party  may  originate  under  a  law  with  which  the 
cause  has  no  connection ;  and  that  Congress  may,  with  the  same 
propriety,  give  a  naturalized  citizen,  who  is  the  mere  creature  of  a 
law,  a  right  to  sue  in  the  courts  of  the  United  States,  as  give  that 
right  to  the  bank. 

This  distinction  is  not  denied;  and  if  the  act  of  Congress  was  a 
simple  act  of  incorporation,  and  contained  nothing  more,  it  might 
be  entitled  to  great  consideration.  But  the  act  does  not  stop  with 
incorporating  the  bank.  It  proceeds  to  bestow  upon  the  being  it 
has  made,  all  the  faculties  and  capacities  which  that  being  possesses. 
Every  act  of  the  bank  grows  out  of  this  law,  and  is  tested  by  it.  To 
use  the  language  of  the  Constitution,  every  act  of  the  bank  arises 
out  of  this  law. 

A  naturalized  citizen  is,  indeed,  made  a  citizen  under  an  act  of 
Congress,  but  the  act  does  not  proceed  to  give,  to  regulate,  or  to  pre- 
scribe his  capacities.  He  becomes  a  member  of  the  society,  possess- 
ing all  the  rights  of  a  native  citizen,  and  standing,  in  the  view  of 
the  Constitution,  on  the  footing  of  a  native.  The  Constitution  does 
not  authorize  Congress  to  enlarge  or  abridge  those  rights.  The  simple 
power  of  the  national  legislature  is,  to  prescribe  a  uniform  rule  of 
naturalization,  and  the  exercise  of  this  power  exhausts  it,  so  far  as 
respects  the  individual.  The  Constitution  then  takes  him  up,  and, 
among  other  rights,  extends  to  him  the  capacity  of  suing  in  the 
courts  of  the  United  States,  precisely  under  the  same  circumstances 
under  which  a  native  might  sue.  He  is  distinguishable  in  nothing 
from  a  native  citizen,  except  so  far  as  the  Constitution  makes  the 
distinction.     The  law  makes  none. 

There  is,  then,  no  resemblance  between  the  act  incorporating  the 
bank,  and  the  general  naturalization  law.     2  Stats,  at  Large,  153. 

Upon  the  best  consideration  we  have  been  able  to  bestow  on  this 
subject,  we  are  of  opinion  that  the  clause  in  the  act  of  incorporation, 
enabling  the  bank  to  sue  in  the  courts  of  the  United  States,  is  con- 
sistent with  the  Constitution,  and  to  be  obeyed  in  all  courts. 

[The  merits  of  the  case  are  then  considered  ;  also  the  question 
whether  the  suit  is  in  effect  against  the  State  of  Ohio  in  violation 
of  the  Eleventh  Amendment  to  the  Federal  Constitution.  This  last 
point  of  the  case  is  sufficiently  referred  to  in  cases  given  infra,  on 
pages  702  to  720.     The  decree  is  affirmed.^] 

1  Mr.  Justice  Johnson  rendered  a  concurring  opinion. 

In  Pacific  Railroad  Removal  Cases,  115  U.  S.  1  (1885),  Mr.  Jcstice  Brad- 
ley, rendering  the  opinion  of  the  court,  uses  this  language  :  — 

"  We  are  of  opinion  that  corporations  of  the  United  States,  created  by  and  organ- 


SECT.  I.  a.]  PACIFIC    RAILROAD   REMOVAL    CASES. 


623 


ized  under  acts  of  Congress  like  the  plaintiffs  in  error  in  these  cases,  are  entitled  as 
such  to  remove  into  the  Circuit  Courts  of  the  United  States  suits  brought  against 
them  in  tiie  Stute  courts,  under  and  by  virtue  of  the  act  of  March  3,  1875,  on  the 
ground  that  such  suits  are  suits  '  arising  under  tlie  laws  of  the  United  States.'  We 
do  not  propose  to  go  into  a  lengthy  argument  on  the  subject;  we  think  that  the  ques- 
tion has  been  substantially  decided  long  ago  by  this  court.  The  exhaustive  argument 
of  Chief  Justice  Marshall  in  the  case  of  Osborn  v.  Bank  of  the  United  States,  9 
Wheat.  738,  817-828,  delivered  more  than  sixty  years  ago,  and  always  acquiesced  in, 
renders  any  further  discussion  unnecessary  to  show  that  a  suit  by  or  against  a  corpo- 
ration of  the  United  States  is  a  suit  arising  under  the  laws  of  the  United  States.  That 
arfiiment  was  the  basis  of  the  decision  on  the  jurisdictional  question  in  that  case. 
Tlie  precise  question,  it  is  true,  was  as  to  the  power  of  Congress  to  authorize  the  bank 
to  sue  and  be  sued  in  the  United  States  courts.  The  words  of  its  charter  were,  that 
the  bank  should  be  made  able  and  capable  in  law  to  '  sue  and  be  sued,  plead  and  be 
impleaded,  answer  and  be  answered,  defend  and  be  defended,  in  all  State  courts  hav- 
in"-  competent  jurisdiction,  and  in  any  Circuit  Court  of  the  United  States.'  The 
power  to  create  such  a  jurisdiction  in  the  Federal  courts  rested  solely  on  the  truth  of 
the  proposition,  that  a  suit  by  or  against  the  bank  would  be  a  suit  arising  under  the 
laws  of  the  United  States;  for  the  Constitution  confined  the  judicial  power  of  the 
United  States  to  these  four  classes  of  cases,  namely :  first,  to  cases  in  law  and  equity, 
arising  under  the  Constitution,  the  laws  of  the  United  States,  and  treaties  made  under 
their  authority ;  secondly,  to  cases  affecting  amba.ssadors,  other  public  ministers  and 
consuls;  thirdlv,  to  cases  of  admiralty  and  maritime  jurisdiction  ;  fourthly,  to  certain 
controversies  depending  on  the  cliaracter  of  the  parties,  such  as  controversies  to  which 
the  United  States  are  a  party,  those  between  two  or  more  States,  or  a  State  and  citizens 
of  another  State,  or  citizens  of  different  States,  or  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  or  a  State  or  its  citizens  and  foreign  States, 
citizens,  or  subjects.  Now,  suits  by  or  against  the  United  States  Bank  could  not  pos- 
sibly, as  such,  belong  to  any  of  these  classes  except  the  first,  namely,  cases  in  law  and 
equity  arising  under  the  Constitution,  laws,  or  treaties  of  the  United  States;  and  the 
Supreme  Coiirt,  as  well  as  the  distinguished  counsel  who  argued  the  Osborn  case,  so 
understood  it.  Unless,  therefore,  a  case  in  which  the  bank  was  a  party  was  for  that 
reason  a  case  arising  under  the  laws  of  the  United  States,  Congress  would  not  have 
had  the  power  to  authorize  it  to  sue  and  be  sued  in  the  Circuit  Court  of  the  United 
States.  And  to  this  question,  to  wit,  whether  such  a  case  was  a  suit  arising  under 
the  laws  of  the  United  States,  the  court  directed  its  principal  attention.  But  as  it 
was  objected  that  several  questions  of  general  law  might  arise  in  a  case,  besides  that 
which  depended  upon  an  act  of  Congress,  the  court  first  disposed  of  that  objection, 
holding  that,  as  scarcely  any  case  occurs  every  part  of  which  depends  on  the  Consti- 
tution, laws,  or  treaties  of  the  United  States,  it  is  suflficient  for  the  purposes  of  Federal 
jurisdiction  if  the  case  necessarily  involves  a  question  depending  on  such  Constitution, 
laws,  or  treaties." 

[The  quoted  portions  of  that  opinion  are  omitted,  as  the  portions  referred  to  are 
given  in  full  above.] 

"  If  the  case  of  Osborn  v.  The  Bank  of  the  United  States  is  to  be  adhered  to  as  a 
sound  exposition  of  the  Constitution,  there  is  no  e.scape  from  the  conclusion  that  these 
suits  against  the  plaintiffs  in  error,  considering  the  said  pliiintiffs  as  corporations 
created  by  and  organized  under  the  acts  of  Congress  referred  to  in  the  several  peti- 
tions for  removal  in  these  cases,  were  and  are  suits  arising  under  the  laws  of  the 
United  States.  An  examination  of  those  acts  of  Congress  shows  that  the  corpora- 
tions now  before  us,  not  only  derive  their  existence,  but  their  powers,  their  functions, 
their  duties,  and  a  large  portion  of  their  resources,  from  those  acts,  and,  by  virtue 
thereof,  sustain  important  relations  to  the  government  of  the  United  States." 


1 


624  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 


SOUTHEPtX  PACIFIC   PtAILPvOAD   COMPANY   v. 

CALIFOKNIA. 

lis  United  States,  109.     1886. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  is  a  suit  brouglit  by  the  State  of  California,  in  one  of  its  own 
courts,  against  the  Southern  Pacific  Ilailroad  Company  to  recover 
831,470.58  claimed  to  be  due  for  taxes.  The  railroad  company 
answered  the  complaint,  setting  up,  among  others,  the  following 
defences :  — 

1.  That  under  and  by  virtue  of  the  acts  of  Congress  of  July  27, 
18G6,  14  Stat.  292,  ch.  278;  March  3,  1871,  16  Stat.  573,  ch/l22; 
and  May  2,  1872,  17  Stat.  59,  ch.  132,  the  defendant  "  became,  and 
ever  since  has  been,  a  Federal  corporation,  and  has  held  its  fran- 
chises and  exercised  all  its  corporate  powers  under  the  government 
of  the  United  States ;  "  or,  "  if,  by  virtue  of  the  several  acts  of  Con- 
gress .  .  .  referred  to,  it  did  not  become  a  Federal  corporation,  yet 
it  holds  under  the  government  of  the  United  States  all  the  corporate 
powers  and  franchise  granted  to  it  by  the  said  several  Acts  of  Con- 
gress as  the  trustee  for  the  government,  and  for  the  governmental 
uses  and  purposes  specified  in  said  acts  ;  "  "  that  the  government  of 
the  United  States  has  never  given  to  the  State  of  California  the  right 
to  lay  any  tax  upon  the  franchise,  existence,  or  operations  of  de- 
fendant ; "  that  the  "  value  of  all  the  franchises  held  and  corporate 
powers  exercised  by  defendant  under  said  acts  of  Congress  "  were 
included  in  the  valuation  of  the  property  of  the  company  upon  which 
the  taxes  sued  for  were  assessed,  and  that  by  reason  of  the  premises 
the  taxes  are  illegal  and  void. 

2.  That  the  property  of  the  company  for  which  the  taxes  sued  for 
were  levied  was,  and  is,  encumbered  by  a  mortgage  securing  an  in- 
debtedness of  the  railroad  company  exceeding  83,000  a  mile,  and  that 
it  was  valued  for  taxation  without  deduction  on  account  of  such 
encumbrance,  because  such  was  the  requirement  of  the  statute  with 
respect  to  railroad  corporations  owning  railroads  within  the  State, 
and  operated  in  more  than  one  county,  and  this  corporation  was,  and 
is,  of  that  class. 

3.  That  the  statute  under  which  the  taxes  were  levied  is  repugnant 
to  Art.  XIV.  of  the  Amendments  of  the  Constitution  of  the  United 
States,  inasmuch  as  it  deprives  railroad  corporations  of  the  State 
operated  in  more  than  one  county  of  the  equal  protection  of  the  laws, 
1,  by  providing  that  the  property  of  such  corporations  shall  be  valued 
for  taxation  to  them  without  deduction  on  account  of  mortgage  en- 
ciunbrances,  while  the  mortgaged  property  of  other  corporations  and 
of  natural  persons  is  taxed  to  its  owner  only  on  its  value  after  the 
value  of  the  mortgage  has  been  deducted ;  .and,  2,  by  failing  to  provide 


SECT.  I.  a.]       SOUTHERN    PACIFIC    RAILROAD   V.    CALIFORNIA. 


625 


a  tribunal  for  the  correction  of  errors  in  the  valuation  of  the  property 
of  such  railroad  corporations  for  taxation,  when  such  a  tribunal  is 
provided  for  all  other  corporations  and  for  natural  persons. 

4.  That  the  statute  is  still  further  repugnant  to  the  same  amend- 
ment, because  it  deprives  such  corporations  of  their  property  without 
due  process  of  law,  there  being  no  provision  for  notice  to  them  of  a 
time,  place,  or  tribunal  for  a  hearing  in  defence  of  their  rights  in  the 
valuation  of  their  property  for  taxation. 

Upon  the  filing  of  this  answer,  the  railroad  company  presented  its 
petition,  accompanied  with  the  necessary  security,  for  the  removal  of 
the  suit  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
California,  under  the  act  of  March  3,  1875,  18  Stat.  470,  ch.  137,  ou 
the  ground  that  the  action  "is  a  suit  at  law  of  a  civil  nature  and 
arising  under  the  Constitution  and  laws  of  the  United  States."  This 
petition  was  filed  in  time.  The  State  court  proceeded  with  the  suit 
notwithstanding  the  petition,  and  gave  judgment  against  the  railroad 
company  for  the  full  amount  of  the  tax  and  the  statutory  penalty. 
From  this  judgment  the  corporation  appealed  to  the  Supreme  Court, 
where  the  only  question  presented  for  decision  was  "  whether  the 
Federal  ^Constitution  and  the  act  of  Congress  authorized  a  removal  of 
an  action  from  a  State  to  a  Federal  court  brought  by  a  State  to  re- 
cover taxes  levied  under  its  laws  on  the  property  of  a  being  created 
by  its  power  in  one  of  its  own  courts."  This  question  was  decided 
against  the  corporation,  and  the  judgment  of  the  court  below  affirmed. 
To  this  judgment  of  affirmance  the  present  writ  of  error  was  brought 
on  the  allowance  of  the  Chief  Justice  of  the  Supreme  Court  of  the 
State. 

In  Railroad  Co.  v.  Mississippi,  102  U.  S.  135,  141,  it  was  decided 
that  a  suit  brought  by  a  State  in  one  of  its  own  courts  against 
a  corporation  of  its  own  creation  can  be  removed  to  the  Circuit  Court 
of  the  United  States,  under  the  act  of  March  3,  1875,  if  it  is  a  suit 
arising  under  the  Constitution  or  laws  of  the  United  States,  although 
it  may  involve  questions  other  than  those  which  depend  on  the  Con- 
stitution and  laws.  The  case  of  Ames  v.  Kansas,  111  U.  S.  449,  is 
to  the  same  effect;  and  in  Starin  v.  New  York,  115  U.  S.  248,  257,  it 
was  stated,  as  the  effect  of  all  the  authorities  on  the  subject,  that  if, 
from  the  questions  involved  in  a  suit,  "  it  appears  that  some  title, 
right,  privilege,  or  immunity,  on  which  the  recovery  depends,  will  be 
defeated  by  one  construction  of  the  Constitution  or  a  law  of  the 
United  States,  or  sustained  by  the  opposite  construction,  the  case  will 
be  one  arising  under  the  Constitution  or  laws  of  the  United  States, 
within  the  meaning  of  that  term  as  used  in  the  act  of  1875  ;  other- 
wise not." 

Applying  these  rules,  which  must  now  be  considered  as  settled,  to 
the  present  case,  it  is  apparent  that  the  court  below  erred  in  deciding 
that  the  suit  was  not  removable  ;  for  it  distinctly  appears  that  the 
right  of  the  State  to  recover  was  made  by  the  pleadings  to  depend, 

40 


626  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TT. 

1,  on  the  power  of  the  State  to  tax  the  franchises  of  the  corporation 
derived  from  the  acts  of  Congress,  which  were  specially  referred  to,  as 
well  as  the  property  used  in  connection  therewith,  and,  2,  on  the  effect 
of  Art.  XIV.  of  the  Amendments  of  the  Constitution  on  the  valid- 
ity of  the  statutes  under  which  the  taxes  sued  for  were  levied. 
The  first  depended  on  the  construction  of  the  acts  of  Congress,  and 
the  second  on  the  construction  of  the  constitutional  amendment.  If 
decided  in  one  way  the  State  might  recover,  if  in  another  it  would  be 
defeated,  at  least  in  part.  The  right  of  removal  does  not  depend 
iipon  the  validity  of  the  claim  set  up  under  the  Constitution  or  laws. 
It  is  enough  if  the  claim  involves  a  real  and  substantial  dispute  or 
controversy  in  the  suit.  In  this  case  there  can  be  no  doubt  about  that. 
The  Circuit  Court  of  the  United  States  for  the  district  of  California 
has  already  decided  more  than  once,  in  other  cases  involving  precisely 
the  same  questions,  that  the  statute  on  which  the  recovery  depends 
was  unconstitutional  and  void,  and  some  of  these  cases  are  now  pend- 
ing here  on  writs  of  error.  Already  much  time  has  been  devoted  in 
this  court  to  their  argument  under  special  assignments. 

The  judgment  of  the  Supreme  Court  is  reversed  and  the  cause  re- 
manded, with  directions  that  it  be  sent  back  to  the  Superior  Court  of 
Los  Angeles  County  for  removal  to  the  Circuit  Court  of  the  United 
States,  in  accordance  with  the  prayer  of  the  petition  filed  for  that 
purpose.  Judgment  reversed. 


BOCK  V.  PEKKINS. 

139  United  States,  628.     1891. 

]\Ir.  Justice  Haklan  delivered  the  opinion  of  the  court. 

This  action  involves  the  title  to  a  certain  stock  of  goods  seized 
under  attachments  sued  out  against  the  property  of  H.  P.  Lane  from 
the  Circuit  Court  of  the  United  States  for  the  ]S^orthern  District  of 
Iowa,  and  directed  to  the  marshal  of  that  district  for  execution.  The 
goods,  when  seized,  were  in  the  possession  of  the  plaintiff  in  error, 
who  claimed  the  right  to  hold  them  under  an  assignment  made  to  him 
by  Lane  before  the  attachments  were  issued.  Bock  seeks  to  recover 
from  Perkins,  the  marshal,  and  from  Thrift  and  Hopkins,  his  deputies, 
damages  in  the  sura  of  ten  thousand  dollars  for  their  seizure.  The 
defence  was,  that  the  goods  were  the  property  of  Lane  at  the  time  of 
the  seizure,  and,  therefore,  were  liable  to  be  taken  under  the  attach- 
ments. Upon  the  petition  of  the  defendants,  accompanied  by  a 
proper  bond,  and  an  affidavit  setting  forth  the  nature  of  the  defence, 
the  case  was  removed  into  the  court  below  for  trial  as  one  arising 
under  the  laws  of  the  United  States.  The  plaintiff  moved  to  remand 
it  to  the  State  court.     The  motion  was  denied,  and  by  direction  of 


SECT.  I.  a.]  BOCK   V.    PERKINS.  627 

the  court  the  jury  returned  a  verdict  for  the  defendants.    A  judgment 
in  their  favor  was  accordingly  entered.     Bock  v.  Terkius,  28  Fed. 

Rep.  123. 

The  court  below  properly  retained  the  case  for  trial.     Every  mar- 
shal of  the  United  States,  as  well  as  his  deputy,  must  take  an  oath 
or  affirmation  that  he  will  faithfully  execute  all  lawful  precepts  di- 
rected to  him,  and  in  all  things  well  and  truly  perform  the  duties  of 
his  office.     The  marshal  must  also  give  bond,  with  sureties,  for  the 
faithful  performance  of  the  duties  of  his  office  by  himself  and  dep- 
uties.    And   marshals    and    their  deputies    have,  in    the   respective 
States,  the  same  powers  in  executing  the  laws  of  the  United  States 
as  sheriffs  and   their  deputies  have  in  executing  the  laws  of  such 
States.     Rev.  Stat.  §§  782,   783,788.     A  case,  therefore,  depending 
upon  the  inquiry  whether  a  marshal  or  his  deputy  has  rightfully  ex- 
ecuted a  lawful  precept  directed  to  the  former  from  a  court  of  the 
United  States,  is  one  arising  under  the  laws  of  the  United  States ; 
for,  as  this  court  has  said,  "  cases  arising  under   the   laws  of  the 
United  States  are  such  as  grow  out  of  the  legislation  of  Congress, 
whether  they  constitute  the  right  or  privilege,  or  claim  or  protection, 
or  defence  of  the  party,  in  whole  or  in  part,  by  whom  they  are  as- 
serted."    Tennessee  v.  Davis,  100  U.  S.  257,  264  ;  Railroad  Co.  v. 
Mississippi,  102   U.  S.  135,  141.     If   the  goods  in   question,  when 
seized,  were  the  property  of  Lane,  the  marshal  and  his  deputies  were 
in  the  discharge  of  duties  imposed  upon  them   by  the  laws  of  the 
United  States  ;  and  for  any  failure  in  that  regard  he  would  be  liable 
to  suit  by  any  one  thereby  injured.    Rev.  Stat.  §  784.     This  case  was, 
therefore,  one  arising  under  the  laws  of  the  United  States,  and  re- 
movable from  the  State  court.     Feibelman  v.  Packard,  109  U.  S.  421, 
423;  Bachrack  v.  Norton,  132  U.  S.  337  ;  Reagan  v.  Aiken,  [138  U.  S. 
109];  Houser  v.  Clayton,   3  Woods,  273;  Ellis  v.  Norton,  IG   Fed. 
Rep.  4. 

No  different  doctrine  was  announced  in  Buck  v.  Colbath,  3  Wall. 
334.  On  the  contrary,  that  case  sustains  the  view  we  have  just  ex- 
pressed. Colbath  sued  Buck  in  a  State  court  in  trespass  for  taking 
his  goods,  the  latter  pleading  simply  that  he  was  marshal  of  the 
United  States,  and  had  seized  the  goods  under  an  attachment  against 
the  property  of  certain  parties  named  therein,  but  not  averring  that 
the  goods  belonged  to  the  defendants  named  in  the  writ.  This  court, 
upon  error  to  the  highest  court  of  the  State,  held  that  the  marshal 
.  was  guilty  of  trespass  in  levying  upon  the  property  of  one  against 
whom  the  writ  did  not  run,  and  could  be  sued  therefor  in  a  State 
court  —  the  m.ere  fact  that  the  writ  issued  from  a  Federal  court  con- 
stituting no  defence.  The  judgment  in  that  case  against  the  marshal 
was  reviewed  here  under  the  act  of  Congress  authorizing  such  review 
in  cases  where  a  party  specially  claimed  the  protection  of  an  author- 
ity exercised  under  the  United  States,  and  the  decision  withheld  the 
protection  so  claimed.     The   decision  sustains  the  proposition  that 


628  THE   JUDICIAL   DEPARTMENT.  [CHAP,  VI. 

where  a  marshal,  being  sued  in  trespass  in  a  State  court  for  taking 
property  under  a  writ  of  attachment  to  him  directed,  defends  upon 
the  ground  that  the  property  attached  belonged  to  the  defendant 
named  in  the  writ,  the  case  is  one  arising  under  the  laws  of  the 
United  States,  and  therefore  removable. 

[The  merits  of  the  case  are  then  considered   and  the  judgment 
is  affirmed.] 


b.    Cases  affecting  Ambassadors^  other  Public  Ministers^ 
and  Consuls. 

BORS   V.    PPvESTON. 
Ill  United  States,  252.     1884. 

This  action  was  brought  in  the  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  New  York.  The  plaintiff,  Preston,  is 
a  citizen  of  that  State,  while  the  defendant  is  the  consul  at  the  port 
of  New  York,  for  the  Kingdoms  of  Norway  and  Sweden. 

The  object  of  the  action  is  to  recover  damages  for  the  alleged 
unlawful  conversion  by  defendant,  to  his  own  use,  of  certain  articles 
of  merchandise.  The  answer  denies  the  material  allegations  of  the 
complaint,  and,  in  addition,  by  way  of  counterclaim,  asks  judgment 
against  the  plaintiff  for  certain  sums.  To  the  counterclaim  a  repli- 
cation was  filed,  and  a  trial  had  before  a  jury,  which  resulted  in  a 
verdict  in  favor  of  plaintiff  for  $7,313.10.  For  that  amount  judg- 
ment was  entered  against  the  defendant.  The  defendant  sued  out 
this  writ  of  error.  The  following  assignments  of  error  are  found  in 
the  record :  — 

"  First  assignment  of  error.  That  the  plaintiff  in  error  being  be- 
fore, at  the  time  of  the  commencement  of  this  suit,  and  ever  since 
Consul  of  the  Kingdoms  of  Norway  and  Sweden,  he  ought  not, 
according  to  the  Constitution  and  laws  of  the  United  States,  to  have 
been  impleaded  in  the  Circuit  Court,  but  in  the  District  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  or  in  some  of 
the  District  Courts,  and  that  the  Circuit  Court  had  not  jurisdiction  of 
this  cause,  and  should  have  directed  a  verdict  for  said  defendant. 

"  Second  assignment  of  error.  That  judgment  was  given  for  the 
defendant  in  error  against  the  plaintiff  in  error,  when  by  the  laws  of 
the  United  States  the  judgment  ought  to  have  been  given  for  the 
plaintiff  in  error  against  the  defendant  in  error,  it  being  admitted 
that  the  plaintiff  in  error  was,  at  the  time  of  the  transaction  on  the 
8th  of  April,  and  continued  to  the  trial,  the  Consul  for  Sweden  and 
Norway,  at  the  port  of  New  York,  whereby  the  Circuit  Court  had  no 
jurisdiction  of  the  cause." 


SECT.  I.  b.]  BORS   V.    PRESTON.  629 

Mk.  Justice  Harlan  delivered  the  opinion  of  the  court.  After 
reciting  the  facts  in  the  above  language,  he  continued  :  — 

The  assignments  of  error  question  the  jurisdiction  of  the  Circuit 
Court,  under  the  Constitution  and  the  laws  of  the  United  States,  to 
hear  and  determine  any  suit  whatever  brought  against  the  consul  of 
a  foreign  government. 

Some  reference  was  made  in  argument  to  the  fact  that  the  defend- 
ant did  not  in  the  court  below  plead  exemption,  by  virtue  of  his 
official  character,  from  suit  in  a  Circuit  Court  of  the  United  States. 
To  this  it  is  sufficient  to  reply  that  this  court  must,  from  its  own  in- 
spection of  the  record,  determine  whether  a  suit  against  a  person 
holding  the  position  of  consul  of  a  foreign  government  is  excluded 
from  the  jurisdiction  of  the  Circuit  Courts.  In  cases  of  which  the 
Circuit  Courts  may  take  cognizance  only  by  reason  of  the  citizenship 
of  the  parties,  this  court,  as  its  decisions  indicate,  has,  except  under 
special  circumstances,  declined  to  express  any  opinion  upon  the 
merits  on  appeal  or  writ  of  error,  where  the  record  does  not  affirma- 
tively show  jurisdiction  in  the  court  below  ;  this,  because  the  courts 
of  the  Union,  being  courts  of  limited  jurisdiction,  the  presumption 
in  every  stage  of  the  cause  is,  that  it  is  without  their  jurisdiction 
unless  the  contrary  appears  from  the  record.  Grace  v.  American 
Insurance  Company,  109  U.  S.  278,  283;  Robertson  v.  Cease,  97 
U.  S.  646. 

Much  more,  therefore,  will  we  refuse  to  determine  on  the  merits, 
and  will  reverse  on  the  point  of  jurisdiction,  cases  where  the  record 
shows  affirmatively  that  they  are  of  a  class  which  the  statute  ex- 
cludes altogether  from  the  cognizance  of  Circuit  Courts.  If  this  were 
not  so  it  would  be  in  the  power  of  the  parties  by  negligence  or  design 
to  invest  those  courts  with  a  jurisdiction  expressly  denied  to  them. 
To  these  considerations  it  may  be  added,  that  the  exemption  of  the 
consul  of  a  foreign  government  from  suit  in  particular  courts  is  the 
priv;legG,  not  of  the  person  who  happens  to  fill  that  office,  but  of 
the  State  or  government  he  represents.  It  was  so  decided  in  Davis 
V.  Packard,  7  Pet.  276,  284.  While  practically  it  may  be  of  no  con- 
sequence whether  original  jurisdiction  of  suits  against  consuls  of 
foreign  governments  is  conferred  upon  one  court  of  the  United  States 
rather  than  another,  it  is  sufficient  that  the  legislative  branch  of  the 
government  has  invested  particular  courts  with  jurisdiction  in  the 
premises. 

We  proceed  then  to  inquire  whether,  under  the  Constitution  and 
laws  of  the  United  States,  a  Circuit  Court  may,  under  any  circum- 
stances, hear  and  determine  a  suit  against  the  consul  of  a  foreign 
government ;  in  other  words,  whether  other  courts  have  been  invested 
with  exclusive  jurisdiction  of  such  suits. 

The  Constitution  declares  that  "  the  judicial  power  of  the  United 
States  shall  extend  ...  to  all  cases  affecting  ambassadors  or  other 
public  ministers  and  consuls  j "  "  to  controversies  between  citizens  of 


630  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

a  State  and  foreign  citizens  or  subjects ;  "  that  "  in  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls,  ...  the  Supreme 
Court  shall  have  original  jurisdiction  ;  "  and  that  in  all  other  cases 
previously  mentioned  in  the  same  clause  "  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions and  under  such  regulations  as  the  Congress  shall  make." 

Tlie  Judiciary  Act  of  1789  invested  the  District  Courts  of  the 
United  States  with  "jurisdiction,  exclusively  of  the  courts  of  the 
several  States,  of  all  suits  against  consuls  or  vice-consuls,"  except 
for  offences  of  a  certain  character;  this  court,  with  "  original,  but 
not  exclusive,  jurisdiction  of  all  suits  ...  in  which  a  consul  or  vice- 
consul  shall  be  a  party  ;  "  and  the  Circuit  Courts,  with  jurisdiction  of 
civil  suits  in  which  an  alien  is  a  p^arty.  1  Stat.  76-80.  In  this  act 
we  have  an  afl&rmance  by  the  first  Congress  —  many  of  whose  mem- 
bers participated  in  the  convention  which  adopted  the  Constitution, 
aud  were,  therefore,  conversant  with  the  purposes  of  its  framers  —  of 
the  principle  that  the  original  jurisdiction  of  this  court  of  cases  in 
which  a  consul  or  vice-consul  is  a  party,  is  not  necessarily  exclusive, 
and  that  the  subordinate  courts  of  the  Union  may  be  invested  with 
jurisdiction  of  cases  affecting  such  representatives  of  foreign  govern- 
ments. On  a  question  of  constitutional  construction,  this  fact  is 
entitled  to  great  weight. 

Very  early  after  the  passage  of  that  act  the  case  of  United  States 
V.  Kavara,  2  Dall.  297,  was  tried  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Pennsylvania,  before  Justices  Wilson  and 
Iredell  of  this  court,  and  the  district  judge.  It  was  an  indictment 
against  a  consul  for  a  misdemeanor,  of  which,  it  was  claimed,  the 
Circuit  Court  had  jurisdiction  under  the  eleventh  section  of  the  Judi- 
ciary Act,  giving  Circuit  Courts  "exclusive  cognizance  of  all  crimes 
and  offences  cognizable  under  the  authority  of  the  United  States," 
except  where  that  act  "otherwise  provides,  or  the  laws  of  the  United 
States  shall  otherwise  direct,  and  concurrent  jurisdiction  with  the 
District  Courts  of  the  crimes  and  offences  cognizable  therein."  In 
behalf  of  the  accused  it  was  contended  that  this  court,  in  virtue  of 
the  constitutional  grant  to  it  of  original  jurisdiction  in  all  cases  affect- 
ing consuls,  had  exclusive  jurisdiction  of  the  prosecution  against 
him.  Mr.  Justice  Wilson  and  the  district  judge  concurred  in  over- 
ruling this  objection.  They  were  of  opinion  that  although  the 
Constitution  invested  this  court  with  original  jurisdiction  in  cases 
affecting  consuls,  it  was  competent  for  Congress  to  confer  concurrent 
jurisdiction,  in  those  cases,  upon  such  inferior  courts  as  might,  by 
law,  be  established.  Mr.  Justice  Iredell  dissented,  upon  the  ground 
that  the  word  "original,"  in  the  clause  of  the  Constitution  under  ex- 
amination, meant  exclusive.  The  indictment  was  sustained,  and  the 
defendant  upon  the  final  trial,  at  which  Chief  Justice  Jay  presided, 
was  found  guilty.  He  was  subsequently  pardoned  on  condition  that 
he  would  surrender  his  commission  and  exequatur. 


SECT.  I.  b.]  BORS   V.    PRESTON.  631 

In  United  States  v.  Ortega,  11  Wheat.  467,  —  which  was  a  criminal 
prosecution,  in  a  Circuit  Court  of  the  United  States,  for  the  offence 
of  offering  personal  violence  to  a  public  minister,  contrary  to  the  law 
of  nations  and  the  act  of  Congress,  —  one  of  the  questions  certified 
for  decision  was  whether  the  jurisdiction  conferred  by  the  Constitu- 
tion upon  this  court,  in  cases  affecting  ambassadors  or  other  public 
ministers  and  consuls,  was  not  only  original  but  exclusive  of  the  Cir- 
cuit Courts.  But  its  decision  was  waived  and  the  case  determined 
upon  another  ground.  Of  that  case  it  was  remarked  by  Chief  Justice 
Taney,  in  Gittings  ii.  Crawford,  Taney's  Dec.  1,  5,  that  an  expression 
of  opinion  upon  that  question  would  not  have  been  waived  had  the 
court  regarded  it  as  settled  by  previous  decisions. 

In  Davis  v.  Packard,  xibi  siqji-a,  upon  error  to  the  Court  for  the 
Correction  of  Errors  of  the  State  of  [ISTew  York,  the  precise  question 
presented  was  whether,  under  the  Constitution  and  laws  of  the 
United  States,  a  State  court  could  take  jurisdiction  of  civil  suits 
against  foreign  consuls.  It  was  determined  in  the  negative,  upon 
the  ground  that  by  the  ninth  section  of  the  act  of  1789  jurisdiction 
was  giv^en  to  the  District  Courts  of  the  United  States,  exclusively  of 
the  courts  of  the  several  States,  of  all  suits  against  consuls  and  vice- 
consuls,  except  for  certain  offences  mentioned  in  the  act.  The  juris- 
diction of  the  State  courts  was  denied  because — and  no  other  reason 
was  assigned  —  jurisdiction  had  been  given  to  the  District  Courts  of 
the  United  States  exclusively  of  the  former  courts ;  a  reason  which 
probably  would  not  have  been  given  had  the  court,  as  then  organized, 
supposed  that  the  constitutional  grant  of  original  jurisdiction  to  this 
court,  in  all  cases  affecting  consuls,  deprived  Congress  of  power  to 
confer  concurrent  original  jurisdiction,  in  such  cases,  upon  the  sub- 
ordinate courts  of  the  Union.  It  is  not  to  be  supposed  that  the  clause 
of  the  Constitution  giving  original  jurisdiction  to  this  court  in  cases 
affecting  consuls,  was  overlooked,  and,  therefore,  the  decision,  in  that 
case,  ma}'  be  regarded  as  an  affirmance  of  the  constitutionality  of  the 
act  of  1789,  giving  original  jurisdiction  in  such  cases,  also,  to  District 
Courts  of  the  United  States.  And  it  is  a  significant  fact,  that  in  the 
decision  in  Davis  v.  Packard,  Chief  Justice  Marshall  concurred, 
although  he  had  delivered  the  judgments  in  INIarbury  v.  ]\Iadison, 
1  Cranch,  137;  Cohens  v.  Virginia,  6  Wheat.  261;  and  Osborn  v.  Bank 
of  the  United  States,  9  Wheat.  738,  821,  some  of  the  general  ex- 
l)ressions  in  which  are  not  infrequently  cited  in  support  of  the  broad 
proposition  that  the  jurisdiction  of  this  court  is  made  by  the  Consti- 
tution exclusive  of  every  other  court,  in  all  cases  of  which  by  that 
instrument  it  is  given  original  jurisdiction.  It  may  also  be  observed 
that  of  the  seven  justices  who  concurred  in  the  judgment  in  Davis  v. 
Packard,  five  participated  in  the  decision  of  Osborn  v.  Bank  of  the 
United  States. 

In  St.  Luke's  Hospital  v.  Barclay,  3  Blatch.  259,  which  was  a 
suit  in  equity  in  the  Circuit  Court  of  the  United  States  for  the  South* 


632  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

ern  District  of  New  York,  the  question  was  distinctly  raised  whether 
the  consular  character  of  tlie  alien  defendant  exempted  him  from  the 
jurisdiction  of  the  Circuit  Courts.  The  jurisdiction  of  the  Circuit 
Court  was  maintained,  the  opinion  of  the  court  being  that  the  juris- 
diction of  the  District  Courts  was  made  by  statute  exclusive  only  of 
the  State  courts,  and  that  under  the  eleventh  section  of  the  act  of 
1789,  the  defendant  being  an  alien, — no  exception  being  made  tlierein 
as  to  those  who  were  consuls,  —  was  amenable  to  a  suit  in  the  Circuit 
Court  brought  by  a  citizen.  Subsequently  the  question  was  reargued 
before  Mr.  Justice  Nelson  and  the  district  judge,  and  the  propo- 
sition was  pressed  that  the  defendants  could  not  be  sued  except 
in  this  court  or  in  some  District  Court.  But  the  former  ruling 
was  sustained. 

In  Graham  ??.  Stucken,  4  Blatch.  50,  the  same  question  was 
carefully  considered  by  Mr.  Justice  Nelson,  who  again  held  that  the 
constitutional  grant  of  original  jurisdiction  to  this  court  in  cases 
affecting  consuls  ;  the  legislative  grant  in  the  act  of  1789  to  this  court 
of  original  but  not  exclusive  jurisdiction  of  suits  in  which  a  consul 
or  vice-consul  is  a  party ;  and  the  legislative  grant  of  jurisdiction  to 
the  District  Courts,  exclusive  of  the  State  courts,  of  suits  against  con- 
suls or  vice-consuls,  did  not  prevent  the  Circuit  Courts,  Avhich  had 
jurisdiction  of  suits  to  which  an  alien  was  a  party,  from  taking  cog- 
nizance of  a  suit  brought  by  a  citizen  against  an  alien,  albeit  the 
latter  was,  at  the  time,  the  consul  of  a  foreign  government. 

In  Gittings  v.  Crawford,  Taney's  Dec.  1,  which  was  a  suit'  upon 
a  promissory  note  brought  in  the  District  Court  of  the  United  States 
for  Maryland,  by  a  citizen  of  that  State  against  a  consul  of  Great 
Britain,  the  point  was  made  in  the  Circuit  Court  on  writ  of  error  that 
by  the  Constitution  of  the  United  States  this  court  had  exclusive 
jurisdiction  of  such  cases. 

The  former  adjudications  of  this  and  other  courts  of  the  Union 
were  there  examined,  and  the  conclusion  reached  —  and  in  that  con- 
clusion we  concur  —  that,  as  Congress  was  not  expressly  prohibited 
from  giving  original  jurisdiction  in  cases  affecting  consuls  to  the  in- 
ferior judicial  tribunals  of  the  United  States,  neither  public  policy 
nor  convenience  would  justify  the  court  in  implying  such  prohibition, 
and  upon  such  implication,  pronounce  the  act  of  1789  to  be  unconsti- 
tutional and  void.  Said  Chief  Justice  Taney  :  "  If  the  arrangement 
and  classification  of  the  subjects  of  jurisdiction  into  appellate  and 
original,  as  respects  the  Supreme  Court,  do  not  exclude  that  tribunal 
from  appellate  power  in  the  cases  where  original  jurisdiction  is 
granted,  can  it  be  right,  from  the  same  clause,  to  imply  words  of  ex- 
clusion as  respects  other  courts  whose  jurisdiction  is  not  there  limited 
or  prescribed,  but  left  for  the  future  regulation  of  Congress  ?  The 
true  rule  in  this  case  is,  I  think,  the  rule  which  is  constantly  applied 
to  ordinary  acts  of  legislation,  in  which  the  grant  of  jurisdiction  over 
a  certain  subject-matter  to  one  court,  does  not,  of  itself,  imply  that 


SECT.  I.  b.]  BORS    V.    PRESTON,  633 

that  jurisdiction  is  to  be  exclusive.  In  the  clause  in  question,  there 
is  nothing  but  mere  affirmative  words  of  grant,  and  none  that  import 
a  design  to  exclude  the  subordinate  jurisdiction  of  other  courts  of  the 
United  States  on  the  same  subject-matter."  Taney's  Dec.  9.  After 
alluding  to  the  fact  that  the  position  of  consul  of  a  foreign  govern- 
ment is  sometimes  filled  by  one  of  our  own  citizens,  he  observes  : 
"  It  could  hardly  have  been  the  intention  of  the  statesmen  who 
framed  our  Constitution  to  require  that  one  of  our  citizens  who  had 
a  petty  claim  of  even  less  than  five  dollars  against  another  citizen, 
Avho  had  been  clothed  by  some  foreign  government  with  the  consular 
office,  should  be  compelled  to  go  into  the  Supreme  Court  to  have  a 
jury  summoned  in  order  to  enable  him  to  recover  it;  nor  could  it  have 
been  intended,  that  the  time  of  that  court,  with  all  its  high  duties  to 
perform,  should  be  taken  up  with  the  trial  of  every  petty  offence  that 
might  be  committed  by  a  consul  in  any  part  of  the  United  States ; 
that  consul,  too,  being  often  one  of  our  own  citizens." 

Such  was  the  state  of  the  law  when  the  Revised  Statutes  of  the 
United  States  went  into  operation.  By  section  563  it  is  provided  that 
"the  District  Courts  shall  have  jurisdiction  ...  of  all  suits  against 
consuls  or  vice-consuls,"  except  for  certain  offences ;  by  section  629, 
that  "the  Circuit  Courts  shall  have  original  jurisdiction"  of  certain 
classes  of  cases,  among  which  are  civil  suits  in  which  an  alien  is  a 
party ;  by  section  687,  that  this  court  shall  have  "  original  but  not 
exclusive  jurisdiction  of  all  suits  ...  in  which  a  consul  or  vice- 
consul  is  a  party;"  and  by  section  711,  that  the  jurisdiction  vested 
in  the  courts  of  the  United  States  in  the  cases  and  proceedings  there 
mentioned  —  among  which  (par.  8)  are  "  suits  against  ambassadors 
or  other  public  ministers  or  their  domestics,  or  domestic  servants,  or 
against  consuls  or  vice-consuls"  —  shall  be  exclusive  of  the  courts  of 
the  several  States.  But  by  the  act  of  February  18th,  1875,  that  part 
of  section  711  last  quoted  was  repealed,  18  Stat.  318;  so  that,  by  the 
existing  law,  there  is  no  statutory  provision  which,  in  terms,  makes 
the  jurisdiction  of  the  courts  of  the  United  States  exclusive  of  the 
State  courts  in  suits  against  consuls  or  vice-consuls. 

It  is  thus  seen  that  neither  the  Constitution  nor  any  act  of  Con- 
gress defining  the  powers  of  the  Courts  of  the  United  States  has 
made  the  jurisdiction  of  this  court,  or  of  the  District  Courts,  ex- 
clusive of  the  Circuit  Courts  in  suits  brought  against  persons  who 
hold  the  position  of  consul,  or  in  suits  or  proceedings  in  which  a 
consul  is  a  party.  The  jurisdiction  of  the  latter  courts,  conferred 
without  qualification,  of  a  controversy  between  a  citizen  and  an  alien, 
is  not  defeated  by  the  fact  that  the  alien  happens  to  be  the  consul  of 
a  foreign  government.  Consequently,  the  jurisdiction  of  the  court 
below  cannot  be  questioned  upon  the  ground  simply  that  the  defend- 
ant is  the  consul  of  the  Kingdom  of  Norway  and  Sweden. 

But  as  this  court  and  the  District  Courts  are  the  only  courts  of  the 
Union  which,  under  the  Constitution  or  the  existing  statutes,  are  iu- 


634  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

vested  with  jurisdiction,  without  reference  to  the  citizenship  of  the 
parties,  of  suits  against  consuls,  or  in  which  consuls  are  parties,  and 
since  the  Circuit  Court  was  witliout  jurisdiction,  unless  the  defendant 
is  an  alien  or  a  citizen  of  some  State  other  than  New  York,  it  remains 
to  consider  whether  the  record  shows  him  to  be  either  such  citizen  or 
an  alien.  There  is  neither  averment  nor  evidence  as  to  his  citizen- 
ship, unless  the  conceded  fact  that  he  is  the  consul  of  a  foreign  gov- 
ernment is  to  be  taken  as  adequate  proof  that  he  is  a  citizen  or 
subject  of  that  government.  His  counsel  insist  that  the  consul  of  a 
foreign  country,  discharging  his  duties  in  this  country,  is,  in  the 
absence  of  any  contrary  evidence,  to  be  presumed  in  law  to  be  a  citizen 
or  subject  of  tlie  country  he  represents.  This  presumption,  it  is 
claimed,  arises  from  the  nature  of  his  office  and  the  character  of  the 
duties  he  is  called  upon  to  discharge.  But,  in  our  opinion,  the  prac- 
tice of  the  different  nations  does  not  justify  such  presumption. 
"  Though  the  functions  of  consul,"  says  Kent,  "  would  seem  to  require 
that  he  should  not  be  a  subject  of  the  State  m  which  he  resides,  yet 
the  practice  of  the  maritime  powers  is  quite  lax  on  this  point,  and  it 
is  usual,  and  thought  most  convenient,  to  appoint  subjects  of  the  for- 
eign country  to  be  consuls  at  its  ports."  1  Kent,  44.  In  Gittings  v. 
Crawford,  uhi  supra,  it  was  said  by  Chief  Justice  Taney  that,  "  in 
this  country,  as  well  as  others,  it  often  happens  that  the  consular 
office  is  conferred  by  a  foreign  government  on  one  of  our  own  citi- 
zens." It  is  because  of  this  practice  that  the  question  has  frequently 
arisen  as  to  the  extent  to  which  citizens  of  a  country,  exercising 
the  functions  of  foreign  consuls,  are  exempt  from  the  political  and 
municipal    duties    which    are   imposed   upon    their   fellow   citizens. 

1  Halleck's  International  Law,  London  ed.,  vol.  1,  ch.  11,  §  10  et  seq. 
In  an  elaborate  opinion  by  Attorney-General  Gushing  addressed  to 
Secretary  Marcy,  the  question  was  considered  whether  citizens  of  the 
United  States,  discharging  consular  functions  here  by  appointment 
of  foreign  governments,  were  subject  to  service  in  the  militia  or  as 
jurors.  8  Opin.  Attys.-Genl.  169.  It  was,  perhaps,  because  of  the 
difficulties  arising  in  determining  questions  of  this  character  that 
many  of  the  treaties  between  the  United  States  and  other  countries 
define  with  precision  the  privileges  and  exemptions  given  to  consuls 
of  the  respective  nations  —  exemptions  from  public  service  being 
accorded,  as  a  general  rule,  only  to  a  consul  who  is  a  citizen  or  sub- 
ject of  the  country  he  represents.  Rev.  Stat,  of  Dist.  Col.,  Public 
Treaties,  Index,  title  "  Consuls." 

But  it  seems  unnecessary  to  pursue  the  subject  further.  When 
the  jurisdiction  of  the  Circuit  Court  depends  upon  the  alienage  of 
one  of  the  parties,  the  fact  of  alienage  must  appear  affirmatively 
either  in  the  pleadings  or  elsewhere  in  the  record.  Brown  v.  Keene, 
8  Pet.  115;  Bingham  v.  Cabot,  3  Dall.  382;  Capron  v.  Van  Noorden, 

2  Cranch,  126;  Robertson  v.  Cea,se,  supra.  It  cannot  be  inferred, 
argumentatively,  from  the  single  circumstance  that  such  person  holds 


SECT.  I.  C.J  WARING    V.    CLARKE.  635 

and  exercises  the  office  of  consul  of  a  foreign  government  Neither 
the  adjudged  cases  nor  the  practice  of  this  government  prevent  an 
American  citizen  —  not  holding  an  office  of  profit  or  trust  under  the 
United  States  —  from  exercising  in  this  country  the  office  of  consul 
of  a  foreign  government. 

Our  conclusion  is  that,  as  it  does  not  appear  from  the  record  that 
the  defendant  is  an  alien,  and  since  it  is  consistent  with  the  record 
that  the  defendant  was  and  is  a  citizen  of  the  same  State  with  the 
plaintiff,  the  record,  as  it  now  is,  does  not  present  a  case  which  the 
Circuit  Court  had  authority  to  determine.  Without,  therefore,  con- 
sidering the  merits  of  this  cause. 

The  judgment  lymst  be  reversed,  and  the  cause  remanded  for  such 
further  proceedings  as  may  be  consistent  with  this  o^nnion.  It 
is  so  ordered. 

Mr.  Justice  Gray.  Mr.  Justice  Miller  and  myself  concur  in 
the  judgment  of  reversal,  on  the  ground  that  the  Circuit  Court  had 
no  jurisdiction  of  the  case,  because  the  record  does  not  show  that  the 
defendant  was  an  alien,  or  a  citizen  of  a  different  State  from  that  of 
which  the  plaintiff  was  a  citizen.  We  express  no  opinion  upon  the 
question  whether,  if  the  record  had  shown  that  state  of  facts,  as  well 
as  that  the  defendant  was  a  consul,  the  Circuit  Court  would  have 
had  jurisdiction. 


c.   Cases  of  Admiralty  and  Maritime  Jurisdiction. 

WAPvIXG   V.    CLARKE. 
5  Howard,  441 ;  16  Curtis,  45G.     1846. 

Wayne,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  libel  in  rem,  to  recover  damages  for  injuries  arising  from 
a  collision,  alleged  to  have  happened  within  the  ebb  and  flow  of  the 
tide  in  the  Mississippi  River,  about  ninety-five  miles  above  New 
Orleans. 

The  decree  of  the  Circuit  Court  is  resisted  upon  the  merits,  and 
also  upon  the  ground  that  the  case  is  not  within  the  admiralty  and 
maritime  jurisdiction  of  the  courts  of  the  United  States. 

We  will  first  consider  the  point  of  jurisdiction. 

The  learned  counsel  for  the  appellants,  Mr.  Reverdy  Johnson,  con- 
tended that,  even  if  the  evidence  proved  that  the  collision  took  place 
within  the  ebb  and  flow  of  the  tide,  the  court  had  not  jurisdiction, 
because  the  locality  is  ivfra  corpus  comltntus. 

Two  "-rounds  were  taken  to  maintain  that  position. 


636  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

1.  That  the  grant  in  the  Constitution  of  "  all  cases  of  admiralty 
and  maritime  jurisdiction''"  was  limited  to  what  were  cases  of  ad- 
miralty and  maritime  jurisdiction  in  England,  when  our  revolution- 
ary war  began,  or  when  the  Constitution  was  adopted,  and  that  a 
collision  between  ships  within  the  ebb  and  flow  of  the  tide,  wfra 
coijnis  comitatus,  was  not  one  of  them. 

2.  That  the  distinguishing  limitation  of  admiralty  jurisdiction,  and 
decisive  test  against  it,  in  England  and  in  the  United  States,  except 
in  the  cases  allowed  in  England,  was  the  competency  of  a  court  of 
common  law  to  give  a  remedy  in  a  given  case  in  a  trial  by  jury. 
And,  as  auxiliary  to  this  ground,  it  was  urged  that  the  clause  in  the 
9th  section  of  the  judiciary  act  of  1789,  1  Statutes  at  Large,  77, 
*'  saving  to  suitors  in  all  cases  the  right  of  a  common-law  remedy, 
where  the  common  law  is  competent  to  give  it,"  took  away  such 
cases  from  the  admiralty  jurisdiction  of  the  courts  of  the  United 
States. 

The  same  positions  have  been  taken  again  by  Mr.  Ames  and  Mr. 
Whipple,  in  the  case  of  the  New  Jersey  Steam  Navigation  Company 
V.  The  Merchant's  Bank  of  Boston,  6  How.  344.  Everything  in  sup- 
port of  them,  which  could  be  drawn  from  the  history  of  admiralty 
jurisdiction  in  England,  or  from  what  had  been  its  practice  in  the 
United  States,  and  from  adjudged  cases  in  both  countries,  was  urged 
by  those  gentlemen.  All  must  admit,  who  heard  them,  that  nothing 
was  omitted  which  could  be  brought  to  bear  upon  the  subject.  We 
come,  then,  to  the  decision  of  these  points,  with  every  advantage 
which  learned  research,  and  ingenious  and  comprehensive  deduction 
from  it,  can  give  us. 

It  is  the  first  time  that  the  point  has  been  distinctly  presented  to 
this  court,  whether  a  case  of  collision  in  our  rivers,  where  the  tide 
ebbs  and  flows,  is  within  the  admiralty  jurisdiction  of  the  courts  of 
the  United  States,  if  the  locality  be,  in  the  sense  in  which  it  is  used 
by  the  common-law  judges  in  England,  infra  corpus  comitatus.  It  is 
this  point  that  we  are  now  about  to  decide  ;  and  it  is  our  wish  that 
nothing  which  may  be  said  in  the  course  of  our  remarks  shall  be  ex- 
tended to  embrace  any  other  case  of  contested  admiralty  jurisdiction. 
We  do  not  think  that  either  of  the  grounds  taken  can  be  main- 
tained. But,  before  giving  our  reasons  for  this  conclusion,  it  will  be 
well  for  us  to  state  the  cases  in  which  the  instance  court  in  England 
exercised  jurisdiction  when  our  Constitution  was  adopted. 

In  cases  to  enforce  judgments  of  foreign  admiralty  courts,  when  the 
person  or  his  goods  are  within  the  jurisdiction.  Mariners'  wages, 
except  when  the  contract  was  under  seal,  or  made  out  of  the  custom- 
ary way  of  such  contracts.  Bottomry,  in  certain  cases  only,  and 
under  many  restrictions.  Salvage,  Avhen  the  property  shipwrecked 
was  not  cast  ashore.  Cases  between  the  several  owners  of  ships, 
when  they  disputed  among  themselves  about  the  policy  or  advantage 
of  sending  her  upon  a  particular  voyage.     In  cases  of  goods,  and  the 


SECT.  I.  C]  WARING    V.    CLARKE.  637 

proceeds  of  goods  piratically  taken,  which  will  be  arrested  by  a 
warrant  from  the  court,  as  belonging  to  the  crown  and  as  droits  of 
the  admiralty.  And  in  cases  of  collision  and  injuries  to  property  or 
persons  on  the  high  seas. 

It  may  as  well  be  said  by  us,  at  once,  that,  in  cases  of  this  last 
class,  it  has  frequently  been  adjudicated  in  the  English  common-law 
courts,  since  the  restraining  statutes  of  Eichard  II.  and  Henry  IV. 
were  passed,  that  high  seas  mean  that  portion  of  the  sea  which 
washes  the  open  coast ;  and  that  any  branch  of  the  sea  within  the 
fauces  ten-cB,  where  a  man  may  reasonably  discern  from  shore  to 
shore,  is,  or  at  least  may  be,  within  the  body  of  a  county.  In  fact, 
the  general  rule  in  England  has  been,  since  the  time  of  Lord  Coke, 
upon  the  interpretation  given  by  the  courts  of  common  law  to  the 
statutes  13  &  15  Richard  II.  and  2  Henry  IV.,  to  prohibit  the 
admiralty  from  exercising  jurisdiction  in  civil  cases,  or  causes  of 
action  arising  infra  corpus  comitatus.  So  sternly  has  the  admiralty 
been  excluded  from  what  we  believe  to  have  been  its  ancient  juris- 
diction in  England,  that  a  prohibition  within  a  few  years  has  been 
issued  in  a  case  of  collision  happening  between  the  Isle  of  Wight 
and  the  Hampshire  coast;  and  a  case  of  collision  in  the  river  Hum- 
ber,  twenty  miles  from  the  main  sea,  but  within  the  flux  and  reflux 
of  the  tide,  has  been  held  not  to  be  within  the  admiralty  jurisdiction. 
The  Public  Opinion,  2  Hagg.  398. 

It  has  not,  however,  been  the  undisputed  rule,  nor  allowed  to  be 
the  correct  interpretation  of  the  statutes  of  Richard.  It  has  always 
been  contended  by  the  advocates  of  the  admiralty,  that  ports,  creeks, 
and  rivers  are  within  its  jurisdiction,  and  not  within  those  statutes; 
meaning  that  the  ancient  jurisdiction  in  such  localities  was  not  ex- 
cluded by  the  words  of  the  statutes,  Browne,  however,  in  his  Civil 
and  Admiralty  Law,  vol.  2,  p.  92,  thinks  they  were  within  the  words 
of  the  statutes ;  not  meaning,  though,  to  affirm  the  declaration  of 
Lord  Coke,  that  those  statutes  were  affirmative  of  the  common  law. 
We  think  they  were  not.  However  much  every  true  English  and 
American  lawyer  may  feel  himself  indebted  to  the  learning  of  that 
great  lawyer,  and  will  ever  be  cautious  of  disparaging  it,  it  is  difficult 
for  any  one  to  read  and  reflect  upon  the  part  which  he  took  in  the 
controversy  upon  admiralty  jurisdiction  in  England,  without  assent- 
ing to  Mr.  Justice  Buller's  remarks,  in  Smart  v.  Wolf,  3  Durn.  & 
East,  348 :  "  With  respect  to  what  is  said  relative  to  the  admiralty 
jurisdiction  in  4th  Inst.  135,  I  think  that  part  of  Lord  Coke's  work 
has  always  been  received  with  great  caution,  and  frequently  contra- 
dicted. He  seems  to  have  entertained  not  only  a  jealousy  of,  but  au 
enmity  against,  that  jurisdiction.  The  passage  in  4th  Inst.  13;"),  dis- 
allowing the  right  to  take  stipulations,  is  expressly  denied  in  2  Lord 
Raym.  1826.  And  I  may  conclude  with  the  words  of  Lord  Holt  in 
that  case,  that  in  this  case  'the  admiralty  had  jurisdiction,  and  there 
is  neither  statute  nor  common  law  to  restrain  them.' " 


638  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TI. 

Having  thus  admitted,  to  the  fullest  extent,  the  locality  in  Eng- 
land within  which  the  courts  of  common  law  permitted  the  admiralty 
to  exercise  jurisdiction  in  cases  of  collision,  we  return  to  the  ground 
taken,  that  the  same  limitation  is  to  be  imposed,  in  like  cases,  upon 
the  admiralty  courts  of  the  United  States. 

We  have  already  said,  it  cannot  be  maintained.  It  is  opposed  by 
general,  and  also  by  constitutional  considerations,  to  which  we  have 
not  heard  an  answer. 

In  the  first  place,  those  who  framed  the  Constitution,  and  the  law- 
yers in  America  in  that  day,  were  familiar  with  a  different  and  more 
extensive  jurisdiction  in  most  of  the  States  when  they  were  colonies, 
than  was  allowed  in  England,  from  the  interpretation  which  was 
given  by  the  common-law  courts  to  the  restraining  statutes  of  Rich- 
ard II.  and  Henry  IV.  The  commissions  to  the  vice-admirals  in  the 
colonies  in  North  America,  insular  and  continental,  contained  a 
much  larger  jurisdiction  than  existed  in  England  when  they  were 
granted.  That  to  the  governor  of  New  Hampshire,  investing  him 
with  the  power  of  an  admiralty  judge,  declares  the  jurisdiction  to 
extend  "  throughout  all  and  every  the  sea-shores,  public  streams, 
ports,  fresh-water  rivers,  creeks,  and  arms,  as  well  of  the  sea  as  of  the 
rivers  and  coasts  whatsoever,  of  our  said  provinces." 

In  a  work  by  Anthony  Stokes,  his  Majesty's  Chief  Justice  in 
Georgia,  entitled  "  A  View  of  the  Constitution  of  the  British  Colo- 
nies in  North  America  and  the  West  Indies,"  will  be  found,  at  page 
166,  the  form  of  the  commission  of  vice-admiral  for  the  provinces  in 
North  America.  He  says,  in  page  150,  the  dates  in  tlie  commission 
are  arbitrary,  and  the  name  of  any  particular  province  is  omitted. 
Its  language  is:  "And  we  do  hereby  remit  and  grant  unto  you,  the 
aforesaid  A.  B.,  our  power  and  authority  in  and  throughout  our 
province  of aforementioned,  &c.,  &c.,  and  maritime  ports  what- 
soever, of  the  same  and  thereto  adjacent,  and  also  throughout  all  and 
every  of  the  sea-shores,  public  streams,  ports,  fresh-water  rivers, 
creeks,  and  arms,  as  well  of  the  sea  as  of  the  rivers  and  coasts  what- 
soever, of  our  said  province  of  F."  The  extracts  from  both  commis- 
sions are  the  same.  We  have  the  authority  of  Chief  Justice  Stokes, 
that  all  given  in  the  colonies  were  alike.  The  jurisdiction  given  in 
those  commissions  is  as  large  as  was  exercised  in  the  ancient  prac- 
tice in  admiralty  in  England.  It  should  be  observed,  too,  that  they 
were  given  long  before  any  difficulties  occurred  between  the  mother 
country  and  ourselves  ;  and  that  they  contained  no  power  complained 
of  by  us  afterwards,  when  it  was  said  an  attempt  was  made  to  ex- 
tend admiralty  powers  "  beyond  these  ancient  limits."  The  king's 
authority  to  grant  those  commissions  in  the  colonies  has  never  been, 
and  cannot  be,  denied.  In  all  the  appeals  taken  from  the  colonial 
courts  to  the  High  Court  of  Admiralty  in  England,  no  such  thing  was 
ever  intimated. 

Was  it  not  known,  also,  that,  whilst  the  States  were  colonies,  vice- 


SECT.  I.  C]  WARING   V.    CLARKE.  639 

admiralty  courts  had  been  in  all  of  them,  —  in  some,  as  has  just  been 
said,  by  commissions  from  the  crown,  with  additional  powers  con- 
ferred upon  them  by  acts  of  Parliament ;  in  others,  by  rights  reserved 
in  their  charters,  and  in  other  colonies  by  their  own  legislation  ?  — 
that,  whether  from  either  source,  they  exercised  a  jurisdiction  over 
all  maritime  contracts,  and  over  torts  and  injuries,  as  well  in  ports 
as  upon  the  high  seas  ?  —  that  acts  of  Parliament  recognized  their 
jurisdiction  as  original  maritime  jurisdiction,  in  all  seizures  for  con- 
travention of  the  revenue  laws  ? 

Was  not  a  larger  jurisdiction  in  admiralty  exercised  in  Massachu- 
setts, throughout  her  whole  colonial  existence,  than  was  permitted 
to  the  admiralty  in  England  by  the  prohibitions  of  her  common-law 
courts  ?  Were  her  members  in  the  convention  which  formed  our 
Constitution  ignorant  of  it  ? 

Were  the  members  from  Pennsylvania  and  South  Carolina  for- 
getful that  the  extent  of  the  admiralty  jurisdiction  in  tlie  colonies 
had  been  the  subject  of  judicial  inquiry  in  England,  growing  out  of 
proceedings  in  the  admiralty  courts  of  both  of  those  States  in  revenue 
cases  ?  —  that  it  had  been  decided  in  1754,  in  the  case  of  The  Vrow 
Dorothea,  2  Rob.  246,  —  which  was  an  appeal  from  the  vice-admiralty 
judge  in  South  Carolina  to  the  High  Court  of  Admiralty,  and  thence 
to  the  delegates,  —  that  the  jurisdiction  in  admiralty  in  the  colonies 
for  a  breach  of  the  revenue  laws  was  in  its  nature  maritime,  and 
was  not  a  jurisdiction  specially  conferred  by  the  statute  of  William 
'III.  c.  22,  §  3 ;  a  judgment  which  subsequently  received  the  assent 
of  all  the  common-law  judges,  in  a  reference  to  them  from  the  Privy 
Council?  2  Rob.  246;  8  Wheat.  397,  note.  This,  too,  after  an 
eminent  lawyer,  Mr.  West,  assigned  as  counsel  to  the  Commissioners 
of  Trade  and  Plantations,  had,  in  1720,  expressed  the  opinion  that 
the  statutes  of  13  &  15  Richard  II.  c.  3,  and  2  Henry  IV.  c.  11,  and 
27  Elizabeth,  c.  11,  were  not  introductive  of  new  laws,  but  only 
declarative  of  the  common  law,  and  were  therefore  of  force  in  the 
plantations ;  and  that  none  of  the  acts  of  trade  and  navigation  gave 
the  admiralty  judges  in  the  West  Indies  increase  of  jurisdiction  be- 
yond that  exercised  by  the  High  Court  of  Admiralty  at  home. 

Shall  it  be  presumed,  also,  that  the  members  of  the  convention 
were  altogether  disregardful  of  what  had  been  the  early  legislation 
of  several  of  the  States,  when  they  were  colonies,  upon  admiralty 
jurisdiction  and  the  rules  for  proceeding  in  such  courts  ?  —  of  the 
larger  jurisdiction  given  by  Virginia  by  her  act  of  1660.  than  was  at 
that  time  allowed  to  the  admiralty  in  England  ?  —  that  it  was  passed 
in  the  year  that  the  ordinance  of  the  republican  government  in  Eng- 
land expired  by  the  restoration  ?  That  ordinance  revived  much  of 
the  ancient  jurisdiction  in  admiralty.  It  was  judicially  acted  upon 
in  England  for  twelve  years.  When  it  expired  there,  the  enlightened 
influences  connected  with  trade  and  foreign  commerce,  "and  the 
uncertainty  of  jurisdiction  in  the  trial  of  maritime  causes,"  which 


640  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

led  to  its  enactment,  no  doubt  had  their  weight  in  inducing 
Virginia,  then  our  leading  colony  in  commerce,  to  adopt  by  legisla- 
tion many  of  its  provisions.  That  ordinance  and  the  act  of  Virginia 
have,  in  our  view,  important  bearings  upon  the  point  under  con- 
sideration. They  were  well  known  to  those  who  represented  Vir- 
ginia in  the  convention.  In  its  proceedings  they  had  an  active  and 
intellectual  agency,  which  makes  it  very  unlikely  that  they  were 
unmindful  of  the  admiralty  jurisdiction  in  Virginia.  In  iSTew  York, 
also,  there  was  a  court  of  admiralty,  the  proceedings,  of  which  were 
according  to  the  course  of  the  civil  law.  Maryland,  too,  had  her 
admiralty,  differing  in  jurisdiction  from  that  of  England. 

Further,  the  proceedings  of  our  Continental  Congress  in  1774  afford 
reasons  for  us  to  conclude  that  no  such  limitation  was  meant.  The 
admiralty  jurisdiction,  ancient  and  circumscribed  as  it  afterwards 
was  in  England,  and  as  it  was  exercised  in  the  colonies,  was  neces- 
sarily the  subject  of  examination,  when  the  Congress  was  preparing 
the  declaration  and  resolves  of  the  14th  October,  1774 ;  in  which  it  is 
said  "  that  the  several  acts  of  4  Geo.  III.  c.  15,  34 ;  5  Geo.  III. 
c.  25;  6  Geo.  III.  c.  52;  7  Geo.  III.  c.  41;  and  8  Geo.  III.  c.  22, 
which  impose  duties  for  the  purpose  of  raising  a  revenue  in  America, 
extend  the  power  of  the  admiralty  courts  beyond  their  ancient  limits." 
Journal  of  Congress,  1774,  21.  Again,  when  it  was  said  (Journal, 
33),  after  reciting  other  grievances  under  the  statute  of  1767 :  "  And 
amidst  the  just  fears  and  jealousies  thereby  occasioned,  a  statute  was 
made  in  the  next  year  (1768)  to  establish  courts  of  admiralty  on  a 
new  model,  expressly  for  the  end  of  more  effectually  recovering  of 
the  penalties  and  forfeitures  inflicted  by  acts  of  Parliament,  framed 
for  the  purpose  of  raising  revenue  in  America."  And  again,  in  the 
address  to  the  king  (Journal,  47),  it  is  said  :  "  By  several  acts  of 
Parliament,  made  in  the  4th,  5th,  6th,  7th,  and  8th  years  of  your 
Majesty's  reign,  duties  are  imposed  upon  us  for  the  purpose  of  rais- 
ing a  revenue,  and  the  powers  of  the  admiralty  and  vice-admiralty 
courts  are  extended  beyond  their  ancient  limits;  whereby  our  prop- 
erty is  taken  from  us  without  our  consent,"  &c.  Why  this  repeated 
allusion  to  the  ancient  limits  of  admiralty  jurisdiction,  by  men  fully 
acquainted  with  every  part  of  English  jurisprudence,  if  they  had  not 
believed  it  had  existed  in  England  at  one  time  much  beyond  what 
was  at  that  time  its  exercise  in  her  admiralty  courts  ? 

With  these  proceedings  of  the  Continental  Congress  every  member 
of  the  convention  which  framed  the  Constitution  was  familiar.  They 
knew,  also,  what  had  been  the  extent  and  the  manner  of  the  exercise 
of  admiralty  jurisdiction  in  the  States,  after  the  war  began,  until 
the  Articles  of  Confederation  had  been  ratified,  —  what  it  had  been 
thence  to  the  adoption  of  the  Constitution.  Advised,  as  they  were 
by  personal  experience,  of  the  dilficulties  which  attended  the  separate 
exercise  by  the  States  of  admiralty  powers,  before  the  confederation 
was  formed,  and  afterwards   from  the  restricted  grant  of  judicial 


SECT.  I.  C]  WARING   V.   CLARKE.  641 

power  in  its  articles,  can  it  be  supposed,  in  framing  the  Constitution, 
when  they  were  endeavoring  to  apply  a  remedy  for  those  evils  by 
getting  the  States  to  yield  admiralty  jurisdiction  altogether  to 
the  United  States,  it  was  intended  to  circumscribe  the  larger  juris- 
diction existing  in  them  to  the  limited  cases,  and  those  only  then 
allowed  in  England  to  be  cases  of  admiralty  and  maritime  juris- 
diction ?  —  that  the  latter  was  exclusively  intended  without  any 
reference  to  the  former,  with  which  they  were  most  familiar  ? 
Can  it  be  reasonable  to  infer  that  such  were  the  intentions  of  the 
framers  of  the  Constitution  ?  Is  it  not  more  reasonable  to  say,  — 
nay,  may  we  not  cay  it  is  certain,  —  that,  in  their  discussions  and 
thoughts  upon  the  grant  of  admiralty  jurisdiction,  they  mingled 
with  what  they  knew  were  cases  of  admiralty  jurisdiction  in  Eng- 
land, what  it  actually  was  and  had  been  in  the  States  they  were 
representing,  with  an  enlarged  comprehension  of  the  controversy 
which  had  been  carried  on  in  England  for  more  than  two  hundred 
years,  between  the  judges  of  the  common-law  courts  and  the  admi- 
ralty, upon  the  subject  of  its  jurisdiction  ?  Besides,  nothing  can  be 
found  in  the  debates  of  the  convention,  nor  in  its  proceedings,  nor 
in  the  debates  of  tlie  conventions  in  the  States  upon  the  Constitution, 
to  sanction  such  an  idea.  It  is  remarkable,  too,  that  the  words,  "  all 
cases  of  admiralty  and  maritime  jurisdiction,"  as  they  now  are  in  the 
Constitution,  were  in  the  first  plan  of  government  submitted  to  the 
convention,  and  that  in  all  subsequent  proceedings  and  reports  they 
were  never  changed.  There  was  but  one  opinion  concerning  the 
grant,  and  that  was,  the  necessity  to  give  a  power  to  the  United 
States  to  relieve  them  from  the  difficulties  which  had  arisen  from 
the  exercise  of  admiralty  jurisdiction  by  the  States  separately.  Tliat 
would  not  have  been  accomplished,  if  it  had  been  intended  to  limit  the 
power  to  the  few  cases  of  which  the  English  courts  took  cognizance. 
But,  besides  what  we  have  already  said,  there  is,  in  our  opinion, 
an  unanswerable  constitutional  objection  to  the  limitation  of  "all 
cases  of  admiralty  and  maritime  jurisdiction,"  as  it  is  expressed  in 
the  Constitution,  to  the  cases  of  admiralty  and  maritime  jurisdiction 
in  England  when  our  Constitution  was  adopted.  To  do  so  would 
make  the  latter  a  part  and  parcel  of  the  Constitution,  —  as  much  so 
as  if  those  cases  wei-e  written  upon  its  face.  It  would  take  away 
from  the  courts  of  the  United  States  the  interpretation  of  what  were 
cases  of  admiralty  and  maritime  jurisdiction.  It  would  be  a  denial 
to  Congress  of  all  legislation  upon  the  subject.  It  would  make,  for 
all  time  to  come,  without  an  amendment  of  the  Constitution,  tliat 
unalterable  by  any  legislation  of  ours,  which  can  at  any  time  be 
changed  by  the  Parliament  of  England, — a  limitation  which  never 
could  have  been  meant,  and  cannot  be  inferred  from  the  words,  which 
extend  the  jurisdiction  of  the  courts  of  the  United  States  '' to  all 
cases  of  admiralty  and  maritime  jurisdiction."  One  extension  of  the 
jurisdiction   of  the  courts  of  the  United  States  exists  beyond  the 

41 


642  THE  JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

limitation  proposed,  just  as  it  existed  in  the  colonies  before  they 
became  independent  States,  which  never  has  been  a  caco  of  admiralty 
jurisdiction  in  England.  We  mean  seizures  under  the  laws  of  im- 
post, navigation,  or  trade  of  the  United  States,  where  the  seizures 
•  are  made  on  waters  navigable  from  the  sea  by  vessels  of  ten  or  more 
tons  burden,  within  the  respective  districts  of  the  courts,  as  well  as 
upon  the  high  seas.  And  this,  we  have  shown  in  a  previous  part 
of  this  opinion,  was  decided  in  England  as  early  as  1754,  with  the 
subsequent  assent  of  the  common-law  judges,  not  to  be  a  juris- 
diction conferred  upon  the  courts  of  admiralty  in  the  colonies  by 
statutes,  but  was  a  case  in  the  colonies  of  admiralty  jurisdiction. 
2  Rob.  246.  And  so  it  is  treated  in  the  9th  section  of  the  judi- 
ciary act  of  1789.  We  cannot  help  thinking  that  section  —  a  declara- 
tion by  Congress  contemporary  with  the  adoption  of  the  Constitution 

very  decisive  against  the  limitation    contended    for  by  counsel 

in  this  case.  Again,  this  court  decided,  as  early  as  1805  (2  Cranch, 
406),  in  the  case  of  The  Sally,  that  the  forfeiture  of  a  vessel,  under 
the  act  of  Congress  against  the  slave-trade,  was  a  case  of  admiralty 
and  maritime  jurisdiction,  and  not  of  common  law.  And  so  it 
had  done  before,  in  the  case  of  The  La  Vengeance,  3  Dall.  297. 
Again,  Congress,  by  an  act  passed  the  19th  of  June,  1813  (3  Stats. 
at  Large,  2),  declared  that  a  vessel  employed  in  a  fishing  voyage 
should  be  answerable  for  the  fishermen's  share  of  the  fish  caught, 
upon  a  contract  made  on  land,  in  the  same  form  and  to  the  same 
effect  as  any  other  vessel  is  by  law  liable  to  be  proceeded  against  for 
the  wages  of  seamen  or  mariners  in  the  merchant  service.  We  shall 
cite  no  more,  though  we  might  do  so,  of  legislative  and  judicial  inter- 
pretations, to  show  that  the  admiralty  jurisdiction  of  the  courts  of 
the  United  States  is  not  confined  to  the  cases  of  admiralty  jurisdic- 
tion in  England  when  the  Constitution  was  adopted. 

No  such  interpretation  has  been  permitted  in  respect  to  any  other 
power  in  the  Constitution.  In  what  aspect  would  it  not  be  pre- 
sented, if  applied  to  the  clause  immediately  preceding  the  grant  of 
admiralty  jurisdiction,  "  to  all  cases  affecting  ambassadors,  other 
ministers  and  consuls  •'  ?  Is  that  grant,  too,  to  be  interpreted  by 
the  jurisdiction  which  the  English  common-law  courts  exercise  in 
cases  affecting  those  functionaries,  or  to  be  regulated  by  what  Lord 
Coke  says,  in  4  Inst.  152,  to  be  their  liabilities  to  punishment  for 
offences  ?  Try  the  interpretation  proposed  by  its  application  to 
the  grant  to  Congress  ''to  establish  uniform  laws  on  the  subject  of 
bankruptcies  throughout  the  United  States."  Would  it  not  result 
in  this,  that  all  the  power  which  Congress  had  under  that  grant  was 
the  bankrupt  system  of  England  as  it  existed  there  when  the  Con- 
stitution was  adopted  ?  Such  a  limitation  upon  that  clause  we  deny. 
We  think  we  may  very  safely  say,  such  interpretations  of  any  grant 
in  the  Constitution,  or  limitations  upon  those  grants,  according  to 
any  English  legislation  or  judicial  rule,  cannot  be  permitted.     At 


SECT.  I.  c]  WARING   V.    CLARKE.  643 

most,  thej  furnish  only  analogies  to  aid  us  in  our  constitutional 
expositions.  We  therefore  conclude  that  the  grant  of  admiralty 
power  to  the  courts  of  the  United  States  was  not  intended  to  be 
limited  or  to  be  interpreted  by  what  were  cases  of  admiralty  juris- 
diction in  England  when  the  Constitution  was  adopted. 

We  will  now  consider  the  proposition,  that  the  test  against  admi- 
ralty jurisdiction  in  England  and  the  United  States  is  the  competency 
of  a  court  of  common  law  to  give  a  remedy  in  a  given  case  in  a  trial 
by  jury ;  or  that  in  all  cases,  except  in  seamen's  wages,  where  the 
courts  of  common  law  have  a  concurrent  jurisdiction  with  the  admi- 
ralty, and  can  try  the  cause  and  give  redress,  that  alone  takes  away  the 
admiralty  jurisdiction.  It  has  the  authority  of  Lord  Coke  to  sustain  it. 
But  it  was  the  effort  and  the  design  of  Lord  Coke  to  make  locality  the 
boundary  in  cases  of  contract,  as  well  as  in  tort,  that  is,  to  limit  the 
jurisdiction  in  admiralty  to  contracts  made  on  the  sea,  and  to  be  exe- 
cuted on  the  sea ;  and  to  exclude  its  jurisdiction  in  all  cases  of  marine 
contracts  made  on  the  land,  though  they  related  exclusively  to  marine 
services,  principally  to  be  executed  on  the  sea.  To  that  extent  the 
admiralty  courts  were  prohibited  by  the  common-law  judges  from  ex- 
ercising jurisdiction,  until  the  unreasonableness  and  inconvenience  of 
the  restriction  forced  them  to  relax  it  in  the  case  of  seamen's  wages. 
Then  it  was  that  the  common-law  courts  began  to  reflect  upon  what 
jurisdiction  in  admiralty  rested,  and  upon  the  principles  upon  which 
it  would  attach.  With  the  acknowledgment  of  all  of  them  ever 
since,  it  was  affirmed  that  the  subject-matter,  and  not  locality,  deter- 
mined the  jurisdiction  in  cases  of  contract.  Passing  over  intermediate 
decisions  showing  the  manner  and  the  reasons  given  for  the  relaxa- 
tion in  the  one  case,  and  the  revival  of  the  other,  for  which  the 
admiralty  always  contended,  we  will  cite  the  case  of  Menetone  v. 
Gibbons,  3  Durn.  &  East,  2C9,  270.  Lord  Kenyon  and  Sir  Francis 
Buller  say,  in  that  case,  the  question  whether  the  admiralty  has  or 
has  not  jurisdiction,  depends  upon  the  subject-matter.  We  wish  it 
to  be  remarked,  however,  that  the  manner  of  proceeding  is  another 
affair,  with  which  we  do  not  meddle  now. 

It  was  only  upon  the  principle  that  the  subject-matter  in  cases  of 
contract  determined  the  jurisdiction,  that  this  court  decided  the  cases 
of  The  Aurora,  1  Wheat.  96,  The  General  Smith,  4  Wheat.  438,  and 
The  St.  Jago  de  Cuba,  9  Wheat.  409. 

If,  then,  in  both  classes  of  civil  cases  of  which  the  instance  court 
has  jurisdiction,  subject-matter  in  the  one  class,  and  locality  in  the 
other,  ascertains  it,  neither  a  jury  trial  nor  the  concurrent  jurisdiction 
of  the  common-law  courts  can  be  a  test  for  jurisdiction  in  either  class. 
Crimes  as  well  those  of  which  the  admiralty  has  jurisdiction  as  those 
of  which  it  has  not,  except  in  cases  of  impeachment,  the  Constitution 
declares  shall  be  tried  by  a  jury.  But  there  is  no  provision,  as  the 
Constitution  originally  was,  from  which  it  can  be  inferred  that  civil 
causes  in  admiralty  were  to  be  tried  by  a  jury,  contrary  to  what  the 


644  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VL 

framers  of  the  Constitution  knew  was  the  mode  of  trial  of  issues  of 
fact  in  the  admiralty.  We  confess,  then,  we  cannot  see  how  they  are 
to  be  embraced  in  the  Seventh  Amendment  of  the  Constitution,  pro- 
viding that  in  suits  at  common  law  the  trial  by  jury  should  be  pre- 
served. Cases  under  ^20  are  not  so  provided  for.  Does  not  the 
specification  of  amount  show  the  class  of  suits  meant  in  the  amend- 
ment, if  anything  could  show  it  more  conclusively  than  the  term 
"suits  at  common  law"  ? 

Suits  at  common  law  are  a  distinct  class,  so  recognized  in  the 
Constitution,  whether  they  be  such  as  are  concurrent  with  suits  of 
which  there  is  jurisdiction  in  admiralty,  or  not.  Can  concurrent 
jurisdiction  imply  exclusion  of  jurisdiction  from  tribunals,  in  cases  ad- 
mitted to  have  been  cases  in  admiralty,  without  trial  by  jury  ?  Again, 
suits  at  common  law  indicate  a  class,  to  distinguish  them  from  suits 
in  equity  and  admiralty ;  cases  in  admiralty,  another  class  distinguish- 
able from  both,  as  well  as  to  the  system  of  laws  determining  them  as 
the  manner  of  trial,  except  that  in  equity  issues  of  fact  may  be  sent 
to  the  common-law  courts  for  a  trial  by  jury.  Suppose,  then,  the 
Seventh  Amendment  of  the  Constitution  had  not  been  made,  suits  at 
the  common  law  and  in  admiralty  would  have  been  tried  in  the  ac- 
customed way  of  each.  But  an  amendment  is  made,  inhibiting  any 
law  from  being  passed  which  shall  take  away  the  right  of  trial  by 
jury  in  suits  at  common  law.  Xow  by  wliat  rule  of  interpretation 
or  by  what  course  of  reasoning  can  such  a  provision  be  converted 
into  an  inhibition  upon  the  mode  of  trial  of  suits  which  are  not  ex- 
clusively suits  at  common  law,  recognized,  too,  as  such  by  the  Con- 
stitution, for  the  trial  of  which  Congress  can  establish  courts  which 
are  not  courts  of  common  law,  but  courts  of  admiralty,  without  or 
with  a  jury,  in  its  discretion,  to  try  all  issues  of  fact  ?  Tried  in  either 
way,  though,  they  are  still  cases  in  admiralty,  and  this  power  in  Con- 
gress under  the  grant  of  admiralty  jurisdiction,  to  try  issues  of  fact 
in  it  by  jury,  being  as  well  known  wlien  the  Seventh  Amendment  was 
made  as  it  is  now,  is  conclusive  that  it  was  done  with  reference  to 
suits  at  common  law  alone.  There  is  no  escape  from  this  result, 
unless  it  is  to  be  implied  that  the  amendments  were  proposed  by 
persons  careless  or  ignorant  of  the  difference  in  the  mode  of  trial  of 
suits  at  common  law  and  in  admiralty.  But  they  were  not  so,  for 
we  find  some  of  them  in  Congress,  a  few  months  after,  preparing  and 
concurring  in  the  enactment  of  a  law,  that  the  "  trials  of  issues  in  fact 
in  the  District  Courts,  in  all  causes  except  civil  causes  of  admiralty 
and  maritime  jurisdiction,  shall  be  by  jury." 

In  respect  to  the  clause  in  the  9th  section  of  the  judiciary  act,  — 
"  saving  and  reserving  to  suitors  in  all  cases  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it,"  —  we  remark,  its 
meaning  is,  that  in  cases  of  concurrent  jurisdiction  in  admiralty  and 
common  law  the  jurisdiction  in  the  latter  is  not  taken  away.  The 
saving  is  for  the  benefit  of  suitors,  plaintiff  and  defendant,   when 


SECT.  I.  c]  WARING   V.    CLARKE.  645 

the  plaintiff  in  a  case  of  concurrent  jurisdiction  chooses  to  sue  in 
the  common-law  courts,  so  giving  to  himself  and  the  defendant 
all  the  advantages  which  such  tribunals  can  give  to  suitors  in 
them.  It  certainly  could  not  have  been  intended  more  for  the 
beneiit  of  the  defendant  than  for  the  plaintiff,  which  would  be  the 
case  if  he  could  at  his  will  force  the  plaintiff  into  a  common-law 
court,  and  in  that  way  release  himself  and  his  property  from  all  the 
responsibilities  which  a  court  of  admiralty  can  impose  upon  both,  as 
a  security  and  indemnity  for  injuries  of  which  a  libellant  may  com- 
plain,—  securities  which  a  court  of  common  law  cannot  give. 

Having  disposed  of  the  objections  to  the  jurisdiction  of  the  courts 
of  admiralty  of  the  United  States,  growing  out  of  the  supposed  limi- 
tation of  them  to  the  cases  allowed  in  England  and  from  the  test  of 
jury  trial,  we  proceed  to  consider  that  objection  to  jurisdiction  in  this 
case,  because  the  collision  took  place  iiifni  corpus  comltatus.  We 
have  admitted  the  validity  of  this  objection  in  England,  but,  on  the 
other  hand,  it  cannot  be  denied  that  the  restriction  there  to  cases  of 
collision  happening  snpev  altum  viare,  or  without  the  fauces  terrce, 
was -imposed  by  tlie  statutes  of  Richard,  contrary  to  what  had  been 
in  England  the  ancient  exercise  of  admiralty  jurisdiction  in  ports  and 
havens  within  the  ebb  and  flow  of  the  tide.  We  have  seen  no  case, 
ancient  or  modern,  from  which  it  can  correctly  be  inferred  that  such 
exercise  of  jurisdiction  was  prohibited  by  mere  force  of  the  common 
law.  The  most  that  can  be  said  in  favor  of  the  statutes  of  Richard 
being  affirmative  of  the  common  law,  are  the  assertions  of  Lord  Coke 
and  the  prohibitions  of  the  common-law  courts,  subsequent  to  those 
statutes,  and  founded  upon  them,  restricting  the  jurisdiction  of  the 
courts  of  admiralty  to  cases  of  collisions  happening  upon  the  high 
seas;  contrary  to  what  we  have  already  said  was  its  ancient  jurisdic- 
tion in  ports  and  havens  in  cases  of  torts  and  collision,  and  certainly 
in  opposition  to  what  was  then,  and  still  continues  to  be,  the  admi- 
ralty jurisdiction,  in  cases  of  collision,  of  every  other  country  in 
Europe. 

But  giving  to  such  prohibitions  of  the  courts  of  common  law  the 
utmost  authority  claimed  for  them,  — that  is,  that  they  are  affirmances 
of  the  common  law  as  interpretations  of  the  statutes  of  Richard,  — 
does  it  follow  that  they  are  to  be  taken  as  a  rule  in  the  admiralty 
courts  of  the  United  States  in  cases  of  collision  ?  Must  it  not  first 
be  shown  that  the  statutes  of  Richard  were  in  force  as  such  in 
ii.merica,  and  that  the  colonies  considered  and  adopted  that  portion 
of  the  common  law  as  applicable  to  their  situation  ?  Now,  the  stat- 
utes of  Richard  were  never  in  force  in  any  of  the  colonies,  except  as 
they  were  adopted  by  the  legislation  of  some  of  them  ;  and  the  com- 
mon law  only  in  its  general  principles,  as  they  were  applicable,  with 
such  portions  of  it  as  were  adopted  by  common  consent  in  any  one  of 
the  colonies,  or  by  statute.  This  being  so,  the  rule  in  England  for 
collision  cases  being  neither  obligatory  here  by  the  statutes  of  Rich- 


646  THE    JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

avd  nor  by  the  coininou  law,  we  feel  ourselves  permitted  to  look 
beyond  them,  to  ascertain  what  the  locality  is  which  ;;ives  jurisdic- 
tion to  the  courts  of  the  United  States  iu  cases  of  collision  or  tort, 
or  what  makes  the  subject-matter  of  any  service  or  undertaking  a 
marine  contract.  Are  we  bound  to  say,  because  it  has  been  so  said 
by  the  common-law  courts  in  England,  in  reference  to  the  point 
under  discussion,  that  sea  always  means  high  sea,  or  the  main  sea  ? 

that  the  waters  flowing  from  it  into   havens,  ports,  and  rivers  are 

not  "  parcel  of  the  sea  "  ?  —  that  the  fact  of  the  political   division  of 
a  country  into  counties  makes  it  otherwise,  and  takes  away  the  juris- 
diction in  admiralty,  in  respect  to  all  the  marine  means  of  commerce 
and  the  injuries  which  may  be  done  to  vessels  in  their  passage  from 
the  sea  to  their  ports   of  destination,  and  in  their  outward-bound 
voyages  until  they  are  upon  the   high   sea  ?     Is  there  not  a  surer 
foundation  for  a  correct  ascertainment  of  the  locality  of  marine  juris- 
diction in  the  general  admiralty  law,  than  the  designation  of  it  by  the 
common-law  courts  in  England?     Especially  when  the  latter  has  in 
no  instance  been  applied  \)y  England  as  a  limitation  upon  the  general 
admiralty  law  in  any  of  her  colonies;  and  when  in  all  of  them,  until 
the  act  of  2  William  IV.  c.  51,  was  passed,  the  commissions  gave  to 
her  vice-admirals  jurisdiction  throughout  "all  and  every  of  the  sea- 
shores, public  streams,  ports,  fresh-water  rivers,  creeks,  and  arms,  as 
well  of  the  sea  as  of  the  rivers  and  coasts  whatsoever."     Besides,  the 
use  of  the  word  "sea"  to  fix  admiralty  jurisdiction,  and  what  part  of 
it  might  be  within  the  body  of  a  county,  have  not  been  settled  points 
among    the   common-law  judges  in    England.      Lord   Hale  differed 
from   Lord  Coke.     The  former,   in   defining  what  the  sea  is,   says  : 
"That  it  is  either  that  which  lies  within  the  body  of  the  county  or 
without;  that  arm  or  branch  of  the  sea  which  lies  within  the  fauces 
terrce  is,  or  at  least  may  be,  within  the  body  of  a  county  ;  that  part 
Avhich  lies  not  within  the  body  of  a  county  is  called  the  main  sea." 
It  is  difficult  to  reconcile  the  differences  of  opinion  and  of  definition 
given   by  the  common-law  courts  in   Lord  Coke's  day,  and  for  fifty 
years  afterwards,   as  to  the  meaning  and  legal  application  of  the 
word   "  sea,"  so  as  to  make  a  practical  rule  to  govern  the  decisions  of 
cases,  or  to  determine  what  were  cases  of  admiralty  jurisdiction,    I)ut 
there  is  no  difficulty  in  making  such  a  rule,  if  the  construction  of  it, 
by  the  admiralty  courts,  is  adopted.     In  that  construction,  it  meant 
not  only  high  sea,  but  arms  of  the  sea,  waters  flowing  from  it  into 
yiorts  and  havens,  and  as  high  upon  rivers  as  the  tide  ebbs  and  flows. 
We  think  in  the   controversy  between  the  courts  of  admiralty  and 
common  law,  upon  the  subject  of  jurisdiction,  that  the  former  have 
the  best  of  the  argument;  that  they  maintain  the  jurisdiction  for 
which  they  contend  with  more  learning,  more  directness  of  purpose, 
and  without  any  of  that  verbal  subtilty  which  is  found  in  the  argu- 
ments of  their  adversaries.     The  conclusions  of  the  admiralty,  too, 
are  more  congenial  with  our  geographical  condition.     We  may  very 


SECT.  I.  c]  WARING    V.    CLARKE.  647 

reasonably  infer  they  were  thonght  so  on  that  account  by  the  framers 
of  the  Constitntion  when  the  judicial  grant  was  expressed  by  them  in 
the  words,  ''all  cases  of  admiralty  and  maritime  jurisdiction."  In 
those  words  it  is  given  by  Congress  to  the  courts,  leaving  to  them  the 
interpretation  of  what  were  such  cases ;  as  well  the  subject-matter 
which  makes  them  so,  as  the  locality  which  gives  admiralty  jurisdic- 
tion in  cases  of  tort  and  collision.  The  grant,  too,  has  been  inter- 
preted by  this  court  in  some  cases  of  the  first  class,  which  leaves  no 
doubt  upon  our  minds  as  to  the  locality  which  gives  jurisdiction  in 
the  other.  We  do  not  consider  it  an  open  question,  but  res  adjudi- 
cata  by  this  court.  In  Peyroux  et  al.  v.  Howard  and  Varion,  7  Pet. 
342,  the  objection  to  the  jurisdiction  was  overruled,  upon  the  ground 
that  the  subject-matter  of  the  service  rendered  was  maritime,  and 
performed  within  the  ebb  and  flow  of  the  tide,  at  New  Orleans.  The 
court  say,  although  the  current  in  the  Mississippi  at  New  Orleans 
may  be  so  strong  as  not  to  be  turned  backward  by  the  tide,  yet  if  the 
effect  of  the  tide  upon  the  current  is  so  great  as  to  occasion  a  regular 
rise  and  fall  of  thu  water,  it  may  properly  be  said  to  be  within  the 
ebb  and  flow  of  tlie  tide.  The  material  consideration  is,  whether  the 
service  is  essentially  a  maritime  service,  and  to  be  performed  on 
the  sea  or  on  tide  water.  In  the  case  of  The  Steamboat  Orleans  v. 
Phoebus,  11  Pet.  175,  the  jurisdiction  of  the  court  was  denied,  on  the 
ground  that  the  boat  was  not  employed  or  intended  to  be  employed 
in  navigation  and  trade  on  the  sea,  or  on  tide  waters.  In  Steamboat 
Jefferson,  Johnson  claimant,  10  Wheat.  428,  this  court  says  :  "  In 
respect  to  contracts  for  the  hire  of  seamen,  the  admiralty  never  pre- 
tended to  claim,  nor  could  it  rightfully  exercise,  any  jurisdiction, 
except  in  cases  where  the  service  was  substantially  performed,  or  to 
be  performed,  on  the  sea  or  upon  waters  within  the  ebb  and  flow  of 
the  tide.  This  is  the  prescribed  limit,  which  it  was  not  at  liberty  to 
transcend.  We  say,  the  service  was  to  be  substantially  performed  on 
the  sea,  or  on  tide  water,  because  there  is  no  doubt  that  the  jurisdic- 
tion exists,  although  the  commencement  or  termination  of  the  voyage 
may  happen  to  be  at  some  place  beyond  the  reach  of  the  tide.  The 
material  consideration  is,  whether  the  service  is  essentially  a  mari- 
time service.  In  the  present  case  the  voyage,  not  only  in  its  com- 
mencement and  termination,  but  in  all  its  intermediate  progress,  was 
several  hundred  miles  above  the  ebb  and  flow  of  the  tide ;  and  in  no 
just  sense  can  the  wages  be  considered  as  earned  in  a  maritime  em- 
ployment." In  United  States  v.  Coombs,  12  Pet.  72,  where  the 
(p\estion  certified  to  the  coiirt  directly  involved  what  was  the  admi- 
ralty jurisdiction,  under  the  grant  of  "all  cases  of  admiralty  and 
maritime  jurisdiction,"  the  language  of  this  court  is  :  "  The  question 
which  arises  is,  What  is  the  true  nature  and  extent  of  the  admiralty 
jurisdiction  ?  Does  it  in  cases  where  it  is  dependent  upon  local- 
ity, reach  beyond  high-water  mark  ?  Our  opinion  is,  that  in  cases 
purely  dependent  upon  the  locality  of  the  act  done,  it  is  limited  to 


648  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

the  sea,  aud  to  tide  waters,  as  far  as  the  tide  flows  ;  and  that  it  does 
not  reach  beyond  high-water  mark.  It  is  the  doctrine  wliich  has 
been  repeatedly  asserted  by  this  court ;  aud  we  see  no  reason  to 
depart  from  it."  Now,  though  none  of  the  foregoing  cases  are  cases 
of  collision  upon  tide  waters,  but  of  contracts,  services  rendered  es- 
sentially maritime,  and  in  a  case  of  wreck,  —  the  point  ruled  in  all  of 
them,  as  to  the  jurisdiction  of  the  court  in  tide  water  as  far  as  the 
tide  flows,  was  directly  presented  for  decision  in  each  of  them.  The 
locality  of  jurisdiction,  then,  having  been  ascertained,  it  must  com- 
prehend cases  of  collision  happening  in  it.  Our  conclusion  is,  that 
the  admiralty  jurisdiction  of  the  courts  of  the  United  States  extends 
to  tide  waters,  as  far  as  the  tide  flows,  though  that  may  be  infra  cor- 
pus comitatus ;  that  the  case  before  us  did  happen  where  the  tide 
ebbed  and  flowed  infra  corjms  comitatus,  and  that  the  court  has  juris- 
diction to  decree  upon  the  claim  of  the  libellant  for  damages. 

Before  leaving  this  point,  however,  we  desire  to  say  that  the  9th 
section  of  the  judiciary  act  countenances  all  the  conclusions  which 
have  been  announced  in  this  opinion.  We  look  upon  it  as  legislative 
action  contemporary  with  the  first  being  of  the  Constitution,  expres- 
sive of  the  opinion  of  some  of  its  framers,  that  the  grant  of  admiralty 
jurisdiction  was  to  be  interpreted  by  the  courts  in  accordance  with 
the  acknowledged  principles  of  general  admiralty  law.  In  that  sec- 
tion the  distinction  is  made  between  high  seas  and  waters  which  are 
navigable  from  the  sea  by  vessels  of  ten  or  more  tons  burden.  Ad- 
miralty jurisdiction  is  given  upon  both,  and  though  the  latter  is 
confined  by  the  language  to  cases  of  seizure,  it  is  so  wutli  the  under- 
standing that  such  cases  were  strictly  of  themselves  within  the  ad- 
miralty jurisdiction.  It  declares  that  issues  of  fact  in  civil  causes  of 
admiralty  and  maritime  jurisdiction  shall  not  be  tried  by  a  jury,  and 
makes  so  clear  an  assignment  to  the  courts  of  jurisdiction  in  criminal, 
admiralty,  and  common-law  suits,  that  the  last  two  cannot  be  so  con- 
founded as  to  place  both  of  them  under  the  Seventh  Amendment  of 
the  Constitution,  which  is  :  "  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wdse  re-examined,  in  any  court  of  the  United  States,  than  according 
to  the  rules  of  the  common  law." 

[On  consideration  of  the  merits  of  the  case  the  decree  was  affirmed. 
Mr.  Justice  Caton  delivered  a  concurring  opinion  and  Me.  Justice 
Woodbury  delivered  a  dissenting  opinion.^] 

1  In  the  case  of  The  Propellkr  Genesee  Chiefs.  Fitzhigh,  12  How.  443  (1851), 
the  question  was  raised  whether  the  courts  of  the  United  States  liad  jurisdiction  in 
admiralty  over  a  case  of  collision  on  Lake  Ontario.  Mr.  Chief  Justice  Tanet, 
delivering  the  opinion  of  the  court,  used  this  language  :  — 

"  At  the  time  the  Constitution  of  the  Ignited  States  was  adopted,  and  our  courts  of 
admiralty  went  into  operation,  the  .lefinition  which  had  been  adopted  in  England  was 
equally  proi)Pr  here.  In  the  old  thirteen  States  the  far  greater  jiart  of  the  navigalde 
waters  are  tide  waters.     And  in  the  States  which  were  at  that  period  in  any  degree 


SECT.  I.  c]       THE   PROPELLER   GENESEE    CHIEF   V.    FITZHUGH.  649 

commercial,  and  where  courts  of  admiralty  were  called  on  to  exercise  their  jurisdic- 
tion, every  public  river  was  tide  water  to  the  head  of  navigation.  And,  indeed,  until 
the  discovery  of  steanihoats,  there  could  be  nothing  like  foreign  commerce  uj)ou 
waters  with  an  unchanging  current  resisting  tlie  upward  passage.  The  courts  of  the 
United  States,  tlierefore,  naturally  adopteil  tiie  English  mode  of  defining  a  public 
river,  and  consequently  the  boundary  of  aiiniiralty  jurisdiction.  It  measured  it  by 
tide  water.  And  that  definition  having  found  its  way  into  our  courts,  became,  after  a 
time,  the  familiar  mode  of  describing  a  public  river,  and  was  repeated,  as  cases 
occurred,  without  particularly  examining  wliether  it  was  as  universally  applicable  in 
this  country  as  it  was  in  England.  If  there  were  no  waters  in  the  United  States 
which  are  public,  as  contradistinguished  from  private,  except  where  there  is  tide,  then 
unquestionably  here  as  well  as  in  England  tide  water  must  be  the  limits  of  admiralty 
power.  And  as  the  Englisli  definition  was  adopted  in  our  courts,  and  constantly  used 
in  judicial  proceedings  and  forms  of  pleading,  borrowed  from  England,  the  public 
character  of  the  river  was  in  process  of  time  lost  sight  of,  and  tlie  jurisdiction  of  the 
admiralty  treated  as  if  it  was  limited  by  the  tide.  The  descripti  m  of  a  public  navi- 
gable river  was  substituted  in  the  place  of  the  thing  intended  to  be  described.  And 
under  the  natural  influence  of  precedents  and  established  forms,  a  definition  originally 
correct  was  adiicred  to  and  acted  on,  after  it  had  ceased,  from  a  change  in  circuni- 
stances,  to  be  the  true  description  of  public  waters.  It  was  under  the  influence  of 
these  precedents  and  this  usage  that  the  case  of  The  Thomas  Jefferson,  10  Wheat. 
428,  was  decided  in  this  court,  and  the  jurisdiction  of  the  courts  of  admiralty  of  the 
United  States  declared  to  be  limited  to  tlie  ebb  and  flow  of  the  tide.  The  Steamboat 
Orleans  v.  Phcebus,  11  Pet.  175,  afterwards  followed  this  case,  merely  as  a  point 
decided. 

"  It  is  the  decision  in  tlie  case  of  The  Thomas  Jefferson  which  mainly  embarrasses 
the  court  in  the  present  inquiry.  We  are  sensible  of  the  great  weight  to  which  it  is 
entitled.  But  at  the  same  time  we  are  convinced  that,  if  we  follow  it,  we  follow  an 
erroneous  decision  into  which  the  court  fell,  when  the  great  importance  of  the  ques- 
tion as  it  now  presents  itself  could  not  be  foreseen  ;  and  the  subject  did  not  therefore 
receive  tliat  deliberate  consideration  wliich  at  this  time  would  liave  been  given  to  it 
by  the  eminent  men  who  presided  here  when  that  case  was  decided.  For  the  decision 
was  made  in  1825,  wiien  the  commerce  on  the  rivers  of  the  West  and  on  the  lakes  was 
in  its  infancy,  and  of  little  importance,  and  but  little  regarded  compared  with  that  of 
the  present  day. 

"  Moreover,  the  nature  of  the  questions  concerning  the  extent  of  tlie  admiralty 
jurisdiction,  which  have  arisen  in  this  court,  were  not  calculated  to  call  its  attention 
particularly  to  the  one  we  are  now  considering.  The  point  in  dispute  has  generally 
been,  whether  the  jurisdiction  was  not  as  limited  in  the  United  States  as  it  was  in 
England  at  the  time  the  Constitution  was  adojited.  And  if  it  was  so  limited,  tlien  it 
did  not  extend  to  contracts  for  maritime  services  when  made  on  land ;  nor  to  torts  and 
collisions  on  a  tide-water  river,  if  they  took  place  in  the  body  of  a  county.  The 
attention  of  the  court,  therefore,  in  former  cases,  has  been  generally  strongly  at- 
tracted to  that  question,  and  never,  we  believe,  until  recently,  drawn  to  the  one  we 
are  now  discussing,  except  in  the  case  of  Tlie  Thomas  .Jefferson,  afterwards  followed 
in  The  Steamboat  Orleans  i'.  Phoebus,  as  already  mentioned.  For,  with  this  excep- 
tion, tlie  cases  always  arose  on  contracts  for  services  on  tide  water,  or  were  upon  libels 
for  collisions  or  other  torts  committed  within  the  ebl)  and  flow  of  the  tide.  There  was, 
therefore,  no  necessity  for  inquiring  whether  the  jurisdiction  extended  furtlier  in  a 
public  navigal)le  water.  And  following  the  Englisli  definition,  tide  was  assumed  and 
spoken  of  as  its  limit,  although  that  particular  question  was  not  before  the  court. 

"The  attention  of  the  court  was,  however,  drawn  to  this  subject  in  the  case  of 
Waring  v.  Clarke.  5  How.  441,  which  was  decided  in  1848.  The  colli.si(m  took  jilace 
on  the  Mississijipi  River,  near  tlie  bayou  Goulah,  and  there  was  much  doubt  whether 
the  tide  flowed  so  high.  There  was  a  good  deal  of  conflicting  evidence.  But  the 
majority  of  the  court  thought  there  was  sufiicient  proof  of  tide  there,  and  con.se- 
quently  it  was  not  necessary  to  consider  whether  the  admir.alty  power  extended 
higiier. 


650  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

"  But  that  case  showed  the  unreasonableness  of  giving  a  construction  to  the  Con- 
stitutiou  which  would  measure  the  jurisdiction  of  the  admiralty  by  the  tide.  For  if 
such  be  the  construction,  then  a  line  drawn  across  the  river  Mississippi  would  limit 
the  jurisdiction,  although  there  were  ports  of  entry  above  it,  and  the  water  as  deep 
and  navigable,  and  the  commerce  as  ricii,  and  exposed  to  the  same  hazards  and  inci- 
dents, as  the  commerce  below.  The  distinction  would  be  purely  artificial  and  arbi- 
trary as  well  as  unjust,  and  would  make  the  Constitution  of  the  United  States  subject 
one  part  of  a  public  river  to  the  jurisdiction  of  a  court  of  the  United  States,  and  deny 
it  to  auotiier  part  e(jually  public  and  but  a  few  yards  distant. 

"  It  is  evident  that  a  definition  that  would  at  this  day  limit  public  rivers  in  tliis 
country  to  tide-water  rivers,  is  utterly  inadmissible.  We  have  thousands  of  miles  of 
public  navigable  water,  including  lakes  and  rivers  in  which  there  is  no  tide.  And 
certainly  there  can  be  no  reason  for  admiralty  power  over  a  public  tide  water,  which 
does  not  apply  with  equal  force  to  any  other  public  water  used  for  commercial  pur- 
poses and  foreign  trade.  Tlie  lakes  and  the  waters  connecting  them  are  undoubtedly 
public  waters,  and  we  think  are  within  the  grant  of  admiralty  and  maritime  jurisdic- 
tion in  the  Constitution  of  the  United  States. 

"  We  are  the  more  convinced  of  the  correctness  of  tlie  rule  we  have  now  laid  down, 
because  it  is  obviously  tlie  one  adopted  by  Congress  in  1789,  when  the  government 
went  into  operation.  For  the  9th  section  of  the  judiciary  act  of  1789,  1  Stats,  at  Large, 
76,  by  which  the  first  courts  of  admiralty  were  established,  declares  that  the  District 
Courts  '  shall  have  exclusive  cognizance  of  all  civil  causes  of  admiralty  and  maritime 
jurisdiction  including  all  seizures  under  the  laws  of  impost,  navigation,  or  trade  of  the 
United  States,  where  the  seizures  are  made  on  waters  which  are  navigable  from  the 
sea  by  vessels  of  ten  or  more  tons  burden,  within  their  respective  districts,  as  well  as 
upon  the  high  seas.' 

"  The  jurisdiction  is  here  made  to  depend  upon  the  navigable  character  of  the 
water,  and  not  upon  tlie  ebb  and  flow  of  the  tide.  If  the  water  was  navigable,  it  was 
deemed  to  be  public ;  and  if  public,  was  regarded  as  within  the  legitimate  scope  of  the 
admiralty  jurisdiction  conferred  by  the  Constitution." 

In  the  case  of  The  Steamboat  Magnolia,  20  How.  296  (1857),  which  was  a 
proceeding  in  admiralty  on  account  of  a  collision  occurring  in  the  Alabama  Kiver  in 
the  county  of  Wilcox,  in  the  State  of  Alaliama,  it  was  contended  that  the  jurisdiction 
in  admiralty  did  not  attach,  because,  first,  the  collision  was  within  the  body  of  the 
county,  and,  second,  because  it  was  at  a  point  on  the  river  above  tide  water.  Mr. 
Justice  Grier,  delivering  the  opinion  of  the  court,  used  the  following  language;  — 

"  1.  The  Alabama  Kiver  flows  through  the  State  of  Alabama.  It  is  a  great  public 
river,  navigable  from  the  sea  for  many  miles  above  the  ebb  and  flow  of  the  tide. 
Vessels  licensed  for  the  coasting  trade,  and  those  engaged  in  foreign  commerce,  pass  on 
its  waters  to  ports  of  entry  within  the  State.  It  is  not,  like  the  Mississippi,  a  boundary 
between  coterminous  States.  Neither  is  it,  like  the  Penobscot  (see  Veazie  v.  Moore, 
14  How.  568),  made  subservient  to  the  internal  trade  of  the  State,  by  artificial  means 
and  dams  constructed  at  its  mouth,  rendering  it  inaccessible  to  sea-going  vessels.  It 
diflfers  from  the  Hudson,  which  rises  in  and  passes  through  the  State  of  New  York,  in 
tlie  fact  that  it  is  navigable  for  ships  and  vessels  of  the  largest  class  far  above  where 
its  waters  are  affected  by  the  tide. 

"  Before  the  adoption  of  the  present  Constitution,  each  State,  in  the  exercise  of  its 
sovereign  power,  had  its  own  Court  of  Admiralty,  having  jurisdiction  over  the  harbors, 
creeks,  inlets,  and  public  navigable  waters  connected  with  the  sea.  This  jurisdiction 
was  exercised  not  only  over  rivers,  creeks,  and  inlets,  which  were  boundaries  to  or 
passed  through  other  States,  but  also  where  they  were  wholly  within  the  State.  Such 
a  distinction  was  unknown,  nor  (as  it  appears  from  the  decision  of  this  court  in  the 
case  of  Waring  v.  Clark,  5  How.  441)  had  these  courts  been  driven  from  the  exercise 
of  jurisdiction  over  torts  committed  on  navigable  water  within  the  body  of  a  county, 
by  the  jealousy  of  the  comnn)n-law  courts. 

"  When,  therefore,  the  exercise  of  admiralty  and  maritime  jurisdiction  over  its 
ptib'lic  rivers,  ports,  and  havens  was  surrendered  by  each  State  to  the  government  of 
the  United  States,  without  an  exception  as  to  subjects  or  places,  this  court  cannot 


I 


SECT.  I.  C]  THE   STEAMBOAT   MAGNOLIA,  651 

interpolate  one  into  the  Constitution,  or  introduce  an  arbitrary  distiuctiou  which  has 
no  foundation  in  reason  or  precedent. 

"The  objection  to  jurisdiction  stated  in  the  plea,  'that  the  collision  was  within  the 
county  of  Wilcox,  in  the  State  of  Alabama,'  can  therefore  have  no  greater  force  or 
effect  from  the  fact  alleged  in  the  argnmenl,  that  tiie  Alabama  Kiver,  so  far  as  it  is 
navigable,  is  wholly  within  the  boumlary  of  the  i^tate.  It  amounts  only  to  a  renewal 
of  tiie  old  contest  between  courts  of  common  law  and  courts  of  admiraltj-,  as  to  tlicir 
jurisdiction  within  the  body  of  a  county.  This  question  has  been  finally  adjudicated 
in  this  court,  and  the  argument  exhaustedj  in  tlie  case  of  Waring  v.  Clark.  After  an 
exjierience  of  ten  years,  we  liave  not  been  called  on  by  the  bar  to  review  its  principles 
as  founded  in  error,  nor  have  we  heard  of  any  complaints  by  the  people  of  wrongs 
suffered  on  account  of  its  supposed  infringement  of  the  right  of  trial  by  jury.  So 
far,  therefore,  as  the  solution  of  the  (juestiou  now  before  us  is  affected  by  the  fact 
that  the  tort  was  committed  within  the  body  of  a  county,  it  must  be  considered  as 
finally  settled  by  the  decision  in  that  case. 

"  2.  The  second  ground  of  objection  to  the  jurisdiction  of  the  court  is  founded  on 
the  fact  that  though  the  collision  complained  of  occurred  in  a  great  navigable  river, 
it  was  on  a  part  of  that  river  not  affected  by  the  flux  and  reflux  of  the  tide,  but  '  far 
above  it.' 

"  This  objection,  also,  is  one  which  has  heretofore  been  considered  and  decided  by 
this  court,  after  full  argument  and  much  deliberation.  In  the  case  of  The  Genesee 
Ciiief,  12  How.  444,  we  have  decided,  that  tliougli  in  England  the  flux  and  reflux 
of  the  tide  was  a  sound  and  reasonable  test  of  a  navigable  river,  because  on  that 
island  tide  water  and  navigable  water  were  synonymous  terms,  yet  that  '  there  is 
certainly  nothing  in  tlie  el)b  and  flow  of  the  tide  that  makes  the  waters  peculiarly 
suitable  for  admiralty  jurisdiction,  nor  anything  in  the  absence  of  a  tide  that  renders 
it  unfit.  If  it  is  a  public  navigable  water  on  which  commerce  is  carried  on  between 
different  States  or  nations,  the  reason  for  the  jurisdiction  is  precisely  tlie  same.  And 
if  a  distinction  is  made  on  that  account,  it  is  merely  arbitrary,  witliout  any  foundation 
in  reason  —  and,  indeed,  contrary  to  it.'  The  case  of  the  Thomas  Jefferson,  10 
Wheaton,  and  others,  which  had  hastily  adopted  this  arbitrary  and  (in  this  country) 
false  test  of  navigable  waters,  were  necessarily  overruled. 

"  Since  tiie  decision  of  these  cases,  the  several  District  Courts  have  taken  jurisdic- 
tion of  cases  of  collision  on  the  great  public  navigable  rivers.  Some  of  these  cases 
have  been  brought  to  this  court  by  appeal,  and  in  no  instance  has  any  objection  been 
taken,  either  by  the  counsel  or  the  court,  to  the  jurisdiction,  because  the  collision  was 
within  the  body  of  a  county,  or  above  the  tide.  See  Fritz  v.  Bull,  12  How.  4G6  : 
Walsli  V.  Rogers,  13  How.  283;  Tiie  Steamboat  New  World,  16  How.  469;  Ure  v. 
Kauffman,  19  How.  56;  New  York  and  Virginia  S.  B.  Co.  v.  Calderwood,  19  How. 
245. 

"  In  our  opinion,  therefore,  neitlier  of  the  facts  alleged  in  the  answer,  nor  both  of 
them  taken  together,  will  constitute  a  sufficient  exception  to  the  jurisdiction  of  the 
District  Court. 

"  It  is  due,  however,  to  the  learned  counsel  who  has  presented  the  argument  for 
respondent  in  this  case,  to  say,  that  he  has  not  attem])ted  to  impugn  the  decision  of 
this  court  in  the  case  of  Waring  v.  Clark,  nor  to  question  the  sufliciency  of  the  reasons 
given  in  the  case  of  The  Genesee  Chief  for  overruling  the  case  of  The  Thomas  Jeffer- 
son; but  he  contends  that  tiie  case  of  The  Genesee  Chief  decided  that  the  act  of  Con- 
gress of  1845,  'extending  the  jurisdiction  of  the  District  Court  to  certain  c.xses  upon 
the  lakes,'  «S;c.,  was  not  only  constitutional,  but  also  that  it  conferred  a  new  jurisdic- 
tion, which  the  court  did  not  possess  before ;  and  consetjuently,  as  that  act  was  con- 
fined to  the  lakes,  and  '  to  vessels  of  twenty  or  more  tons  burden,  licensed  and 
employed  in  the  business  of  commerce  and  navigation  between  ports  and  places  in 
different  States  and  Territories,'  it  cannot  authorize  the  District  Courts  in  assuming 
jurisdiction  over  waters  and  subjects  not  included  in  the  act,  and  more  especially 
where  the  navigable  portion  of  the  river  is  wholly  within  the  boundary  of  a  single 
State.  It  is  contended  also  tliat  the  case  of  Fritz  r.  Bull,  and  those  which  follow  it, 
sustaining  the  jurisdiction  of  the  Court  of  Admiralty  over  torts  ou  the  Mississippi 


652  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

River,  cannot  be  reconciled  with  the  points  decided  in  the  former  case,  as  just  stated, 
unless  on  the  hypcithesis  that  the  act  uf  1845  be  construed  to  include  the  Mississippi 
and  other  great  rivers  of  the  West;  which  it  uiauifcstl}-  does  not. 

"  But  it  never  has  been  iisserted  by  this  court,  either  in  the  case  of  Fritz  v.  Bull  or 
in  any  otiier  case,  that  the  admiralty  jurisdiction  exercised  over  the  great  navigable 
rivers  of  the  West  was  claimed  under  the  act  of  1845,  or  by  virtue  of  anytliiug  therein 
contained. 

"  The  Constitution,  in  defining  the  powers  of  the  courts  of  the  United  States, 
extends  them  to  '  all  cases  of  admiralty  and  maritime  jurisdiction.'  It  defines  how 
much  of  the  judicial  power  shall  be  exercised  by  the  Supreme  Court  only;  and  it  was 
left  to  Congress  to  ordain  and  establish  other  courts,  and  to  fix  the  boundary  and 
extent  of  their  respective  jurisdictions.  Congress  might  give  any  of  these  courts  the 
whole  or  so  mucli  of  the  admiralty  jurisdiction  as  it  saw  fit.  It  might  extend  their 
jurisdiction  over  all  navigable  waters,  and  all  siiips  and  vessels  tliereou,  or  over  some 
navigable  waters,  and  vessels  of  a  certain  description  only.  Conse(iuently,  as  Con- 
gress had  never  before  1845  conferred  admiralty  jurisdiction  over  tiie  Northern  fresh- 
water lakes  /lot  '  navigable  from  the  sea,'  the  District  Courts  could  not  assume  it  by 
virtue  of  this  clause  in  the  Constitution.  An  act  of  Congress  was  therefore  necessary 
to  confer  this  jurisdiction  on  those  waters,  and  was  completely  within  the  constitu- 
tional powers  of  Congress ;  unless,  by  some  unbending  law  of  nature,  fresh-water 
lakes  and  rivers  are  necessarily  within  the  category  of  those  that  are  not  '  navijiable,' 
and  whicli,  consequently,  could  not  be  subjected  to  '  admiralty  jurisdiction,'  any  more 
than  canals  or  railroads. 

"  When  these  States  were  colonies,  and  for  a  long  time  after  the  adoption  of  the 
Constitution  of  the  United  States,  the  shores  of  tlie  great  lakes  of  the  North,  above 
and  beyond  the  ocean  tides,  were  as  yet  almost  uuiuhaltited,  except  by  savages.  The 
necessities  of  commerce  and  the  progress  of  steam  navigation  had  not  as  yet  called  for 
the  exercise  of  admiralty  jurisdiction,  except  on  the  ocean  border  of  tlie  Atlantic 
States. 

'■  The  judiciary  act  of  1789,  in  defining  the  several  powers  of  the  courts  established 
by  it,  gives  to  the  District  Courts  of  the  United  States  '  exclusive  original  cognizance 
of  all  civil  cases  of  admiralty  and  maritime  jurisdiction,  including  all  seizures,  &c., 
when  they  are  made  on  waters  which  are  navigable  from  the  sea  by  vessels  of  ten  or 
more  tons  burden,  &c.,  as  well  as  upon  the  high  seas.' 

"  So  long  as  the  commerce  of  the  country  was  centred  chiefly  on  the  Eastern 
Atlantic  ports,  where  the  fresh-water  rivers  were  seldom  navigable  above  tide  water, 
no  inconvenience  arose  from  the  adoption  of  tlie  English  insular  test  of  'navigable 
waters.'     Hence  it  was  followed  by  the  courts  without  objection  or  inquiry. 

"  But  this  act  does  not  confine  admiralty  jurisdiction  to  tide  waters ;  and  if  the  flux 
and  reflux  of  the  tide  be  abandoned,  as  an  arbitrary  and  false  test  of  a  '  navigable 
river,'  it  required  no  further  legislation  of  Congress  to  extend  it  to  the  Mississippi, 
Alabama,  and  other  great  rivers,  '  navigable  from  the  sea.'  If  the  waters  over  which 
this  jurisdiction  is  claimed  be  within  this  category,  the  act  makes  no  distinction 
between  them.  It  is  not  confined  to  rivers  or  waters  which  bound  coterminous  States, 
such  as  the  Mississippi  and  Ohio,  or  to  rivers  passing  througli  more  than  one  State  ; 
nor  does  the  act  distinguish  between  them  and  rivers  which  rise  in  and  pass  through 
one  State  only,  and  are  consequently  '  infra  corpus  comitatus.'  The  admiralty  juris- 
diction surrendered  by  the  States  to  the  Union  had  no  such  bounds  as  exercised  by 
themselves,  and  is  clogged  with  no  such  conditions  in  its  surrender.  The  interpola- 
tion of  such  conditions  by  the  courts  would  exclude  many  of  the  ports,  harbors,  creeks, 
and  inlets  most  frequented  by  ships  and  commerce,  hut  which  are  wholly  included 
within  the  boundaries  of  a  State  or  tlie  body  of  a  county." 

In  the  case  of  The  Robert  VV.  Parsons,  191  U.  S.  17,  24  Sup.  Ct.  Rep.  8  (1903), 
it  was  held  that  the  Erie  Canal  is  a  navigable  water  within  the  scope  of  the  admiralty 
jurisdiction  of  the  United  States. 


SECT.  I.  c]  EX   PARTE    BOYEB.  653 

Ex  PARTE  BOYER. 

109  United  States,  G29.     1884. 

Mr.  Justice  Blatchford  delivered  the  opinion  of  the  court. 

The  owners  of  the  canal-boat  Brilliant  and  her  cargo  filed  a  libel 
in  admiralty,  in  the  District  Court  of  the  United  States  for  the 
^STorthern  District  of  Illinois,  against  the  steam  canal-boat  B  &  C, 
in  a  case  of  collision.  The  libel  alleges  that  the  Brilliant  is  a  vessel 
of  more  than  20  tons  burden,  and  was  employed,  at  the  time  of  the 
collision,  in  the  business  of  commerce  and  navigation  between  ports 
and  places  in  different  States  and  Territories  of  the  United  States, 
upon  the  lakes  and  navigable  waters  connecting  said  lakes  ;  that  the 
B  &  C  is  a  vessel  of  more  than  20  tons  burden,  and  was,  at  the  time 
of  the  collision,  enrolled  and  licensed  for  the  coasting  trade,  and 
employed  in  the  business  of  commerce  and  navigation  between  ports 
and  places  in  different  States  and  Teritories  of  the  United  States, 
upon^the  lakes  and  navigable  waters  of  the  United  States;  that,  in 
August,  1882,  the  Brilliant,  while  bound  from  Morris,  Illinois,  to 
Chicago,  Illinois,  towed,  with  other  canal-boats,  by  a  steam  canal- 
boat,  and  carrying  the  proper  lights,  and  moving  up  the  Illinois  and 
Lake  Michigan  canal,  about  four  miles  south  of  the  Chicago  end  of 
the  canal,  was,  through  the  negligence  of  the  B  &  C,  struck  and 
sunk,  with  her  cargo,  by  the  B  &  C,  which  was  moving  in  the 
opposite  direction,  to  the  damage  of  the  libellants  $1,500.  The 
owners  and  claimants  of  the  B  &  C  answered  the  libel,  giving  their 
version  of  the  collision  and  alleging  that  it  was  wholly  due  to  the 
faulty  navigation  of  the  Brilliant,  and  that  it  occurred  on  the  Illinois 
and  Michigan  canal,  at  a  place  within  the  body  of  Cook  County,  in 
the  State  of  Illinois.  In  November,  1883,  the  District  Court  made 
an  interlocutory  decree,  finding  that  both  parties  were  in  fault,  and 
decreeing  that  they  should  each  pay  one-half  of  the  damages  occa- 
sioned by  the  collision,  to  be  thereafter  ascertained  and  assessed  by 
the  court.  The  owners  of  the  B  &  C  have  now  presented  to  this 
court  a  petition,  praying  that  a  writ  of  prohibition  may  issue  to  the 
judge  of  the  said  District  Court,  prohibiting  him  from  proceeding 
further  in  said  suit.  The  ground  alleged  for  the  writ  is  the  want  of 
jurisdiction  of  the  District  Court,  as  a  court  of  admiralty,  over  the 
waters  where  the  collision  occurred. 

The  Illinois  and  Michigan  canal  is  an  artificial  navigable  water- 
way connecting  Lake  Michigan  and  the  Chicago  River  with  the  Illi- 
nois River  and  the  ^Mississippi  River.  By  the  act  of  Congress  of 
March  30th,  1822,  ch.  14,  3  Stat.  G59,  the  use  of  certain  public  lands 
of  the  United  States  was  vested  in  the  State  of  Illinois,  forever,  for 
a  canal  to  connect  the  Illinois  River  with  the  southern  bend  of  Lake 


654  THE    JUDICIAL    DEPARTMENT.  [CHAP.  YI. 

Michigan.  The  act  declared  ''That  the  said  canal,  when  completed, 
shall  be  and  forever  remain  a  public  highway,  for  the  use  of  the  gov- 
ernment of  the  United  States,  free  from  any  toll  or  other  charge 
whatever  for  any  property  of  the  United  States,  or  persons  in  their 
service  passing  through  the  same."  This  declaration  was  repeated 
in  the  act  of  March  2d,  1827,  ch.  51,  4  Stat.  234,  granting  more  land 
to  the  State  of  Illinois  to  aid  it  in  opening  the  canal.  We  take 
judicial  notice  of  the  historical  fact  that  the  canal,  96  miles  long, 
was  completed  in  1848,  and  is  60  feet  wide  and  6  feet  deep,  and  is 
capable  of  being  navigated  by  vessels  which  a  canal  of  such  size 
will  accommodate,  and  which  can  thus  pass  from  the  Mississippi 
River  to  Lake  Michigan  and  carry  on  interstate  commerce,  although 
the  canal  is  wholly  within  the  territorial  bounds  of  the  State  of 
Illinois.  By  the  act  of  1822,  if  the  land  granted  thereby  shall  cease 
to  be  used  for  a  canal  suitable  for  navigation,  the  grant  is  to  be  void. 
It  may  properly  be  assumed  that  the  District  Court  found  to  be  true 
the  allegations  of  the  libel,  before  cited,  as  to  the  character  and  em- 
ployment of  the  two  vessels,  those  allegations  being  put  in  issue  by 
the  answer. 

Within  the  principles  laid  down  hy  this  court  in  the  cases  of  The 
Daniel  Ball,  10  Wall.  557,  and  The  jNtontello,  20  Wall.  430,  which 
extended  the  salutary  views  of  admiralty  jurisdiction  applied  in  The 
Genesee  Chief,  12  How.  443,  The  Hine  v.  Trevor,  4  Wall.  555,  and 
The  Eagle,  8  Wall.  15,  we  have  no  doubt  of  the  jurisdiction  of  the 
District  Court  in  this  case.  ISI'avigable  water  situated  as  this  canal 
is,  used  for  the  purposes  for  which  it  is  used,  a  highway  for  com- 
merce between  ports  and  places  in  different  States,  carried  on  by 
vessels  such  as  those  in  question  here,  is  public  water  of  the  United 
States,  and  within  the  legitimate  scope  of  the  admiralty  jui-isdiction 
conferred  by  the  Constitution  and  statutes  of  the  United  States,  even 
though  the  canal  is  wholly  artificial,  and  is  wholly  within  the  body 
of  a  State,  and  subject  to  its  ownership  and  control ;  and  it  makes 
no  difference  as  to  the  jurisdiction  of  the  District  Court  that  one  or 
the  other  of  the  vessels  was  at  the  time  of  the  collision  on  a  voyage 
from  one  place  in  the  State  of  Illinois  to  another  place  in  that  State. 
The  Belfast,  7  Wall.  624.  Many  of  the  embarrassments  connected 
with  the  question  of  the  extent  of  the  jurisdiction  of  the  admiralty 
disappeared  when  this  court  held,  in  the  case  of  The  Eagle,  nbi  supra, 
that  all  of  the  provisions  of  §  9  of  the  Judiciary  Act  of  September 
24th,  1789,  ch.  20,  1  Stat.  77,  which  conferred  admiralty  and  mari- 
time jurisdiction  upon  the  District  Courts  were  inoperative,  except 
the  simple  clause  giving  to  them  "  exclusive  original  cognizance  of 
all  civil  causes  of  admiralty  and  maritime  jurisdiction."  That  deci- 
sion is  carried  out  by  the  enactment  in  §  563  of  the  Revised  Statutes, 
subdivision  8,  that  the  District  Courts  shall  have  jurisdiction  of  "  all 
civil  causes  of  admiralty  and  maritime  jurisdiction,"  thus  leaving  out 
the  inoperative  provisions. 


SECT.  I.  C]  MANCHESTER   V.    MASSACHUSETTS.  655 

This  case  does  not  raise  the  question  whether  the  admiralty  juris- 
diction of  the  District  Court  extends  to  waters  wholly  within  the 
body  of  a  State,  and  from  which  vessels  cannot  so  pass  as  to  carry  on 
commerce  between  places  in  such  State  and  places  in  another  State 
or  in  a  foreign  country;  and  no  opinion  is  intended  to  be  intimated 


as  to  jurisdiction  in  such  a  case. 


The  prayer'  of  the  lietltion  is  denied. 


MANCHESTER   v.   MASSACHUSETTS. 
139  United  States,  240.     1801. 

[This  action  was  prosecuted  in  the  courts  of  Massachusetts  to  im- 
pose a  fine  for  violation  of  a  State  statute  regulating  the  method  of 
fishing  in  Buzzai'd's  Bay.  The  place  where  the  acts  charged  were 
committed  was  in  that  part  of  the  bay  which  was  withia  a  marine 
league-from  the  Massachusetts  shore  at  low-water  mark.  The  Su- 
preme Court  of  Massachusetts  held  the  statute  to  be  constitutional. 
lo2  Mass.  230.     The  defendant  sued  out  a  writ  of  error.] 

Mr.  Justice  Blatchfobd,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

The  principal  contentions  in  this  court  on  the  part  of  the  defend- 
ant are,  that  although  Massachusetts,  if  an  independent  nation,  could 
have  enacted  a  statute  like  the  one  in  question,  which  her  own  courts 
would  have  enforced  and  which  other  nations  would  have  recognized, 
yet  when  she  became  one  of  the  United  States,  she  surrendered  to  the 
general  government  her  right  of  control  over  the  fisheries  of  the  ocean, 
and  transferred  to  it  her  rights  over  the  waters  adjacent  to  the  coast 
and  a  part  of  the  ocean  ;  that,  as  by  the  Constitution,  article  3,  sec- 
tion 2,  the  judicial  power  of  the  United  States  is  made  to  extend  to 
all  cases  of  admiralty  and  maritime  jurisdiction,  it  is  consistent  only 
with  that  view  that  the  rights  in  respect  of  fisheries  should  be  re- 
garded as  national  rights,  and  be  enforced  only  in  national  courts ; 
that  the  proprietary  right  of  Massachusetts  is  confined  to  the  body 
of  the  county  ;  that  the  offence  committed  by  the  defendant  was 
committed  outside  of  that  territory,  in  a  locality  where  legislative 
control  did  not  rest  upon  title  in  the  soil  and  waters,  but  upon  rights 
of  sovereignty  inseparably  connected  Avith  national  character,  and 
which  were  intrusted  exclusively  to  enforcement  in  admiralty  courts; 
that  the  Commonwealth  has  no  jurisdiction  upon  the  ocean  within 
three  miles  of  the  shore  ;  that  it  could  not,  by  the  statute  in  question, 
oust  the  United  States  of  jurisdiction ;  that  fishing  upon  the  high 
seas  is  in  its  nature  an  integral  part  of  national  commerce,  and  its 
control  and  regulation  are  necessarily  vested  in  Congress  and  not  in 


6oQ  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

the  individual  States;  that  Congress  has  manifested  its  purpose  to 
take  the  regulation  of  coast  fisheries,  in  tlie  particulars  covered  by 
the  INIassachusetts  statute  in  question,  by  the  joint  resolution  of  Con- 
gress of  February  9,  1871  (16  Stat.  593),  establishing  the  Fish  Com- 
mission, and  by  Title  51  of  the  Revised  Statutes,  entitled  "  Regulation 
of  Fisheries,"  and  by  the  act  of  February  28,  1887,  c.  288  (I'l  Stat. 
434),  relating  to  the  mackerel  fisheries,  and  by  acts  relating  to  boun- 
ties, privileges,  and  agreements,  and  by  granting  the  license  under 
which  the  defendant's  steamer  was  fishing ;  and  that,  in  view  of  the 
act  of  Congress  authorizing  such  license,  no  statute  of  a  State  could 
defeat  the  right  of  the  defendant  to  fish  in  the  high  seas  under  it. 

By  the  Public  Statutes  of  Massachusetts,  Part  1,  Title  1,  c.  1,  sec- 
tions 1  and  2,  it  is  enacted  as  follows:  "Section  1.  The  territorial 
limits  of  this  Commonwealth  extend  one  marine  league  from  its  sea- 
shore at  low-water  mark.  When  an  inlet  or  arm  of  the  sea  does  not 
exceed  two  marine  leagues  in  width  between  its  headlands,  a  straight 
line  from  one  headland  to  the  other  is  equivalent  to  the  shore  line. 
Section  2.  The  sovereignty  and  jurisdiction  of  the  Commonwealth 
extend  to  all  places  within  the  boundaries  thereof;  subject  to  the 
rights  of  concurrent  jurisdiction  granted  over  places  ceded  to  the 
United  States."  The  same  Public  Statutes,  Part  1,  Title  1,  c.  22, 
section  1,  contain  the  following  provision:  "The  boundaries  of 
counties  bordering  on  the  sea  shall  extend  to  the  line  of  the  Com- 
monwealth, as  defined  in  section  one  of  chapter  one."  Section  11  of 
the  same  chapter  is  as  follows  :  "  The  jurisdiction  of  counties  sep- 
arated by  waters  within  the  jurisdiction  of  the  Commonwealth  shall 
be  concurrent  upon  and  over  such  waters."  By  section  2  of  chapter 
196  of  the  acts  of  Massachusetts  of  1881,  it  is  provided  as  follows  : 
"  Section  2.  The  harbor  and  land  commissioners  shall  locate  and  de- 
fine the  courses  of  the  boundary  lines  between  adjacent  cities  and 
towns  bordering  upon  the  sea  and  upon  arms  of  the  sea  from  high- 
water  mark  outward  to  the  line  of  the  Commonwealth,  as  defined  in 
said  section  one  [section  one  of  chapter  one  of  the  General  Statutes], 
so  that  the  same  shall  conform  as  nearly  as  may  be  to  the  course  of 
the  boundary  lines  between  said  adjacent  cities  and  towns  on  the 
land;  and  they  shall  file  a  report  of  their  doings  with  suitable  plans 
and  exhibits,  showing  the  boundary  lines  of  any  town  by  them  located 
and  defined,  in  the  registry  of  deeds  in  which  deeds  of  real  estate 
situated  in  such  town  are  required  to  be  recorded,  and  also  in  the 
oifice  of  the  secretary  of  the  Commonwealth." 

The  report  of  the  Superior  Court  states  that  the  point  where  the 
defendant  was  using  the  seine  was  within  that  part  of  Buzzard's  Bay 
which  the  harbor  and  land  commissioners,  acting  under  the  provisions 
of  the  act  of  1881,  had,  so  far  as  they  were  capable  of  doing  so,  as- 
signed to  and  made  part  of  the  town  of  Falmouth ;  that  the  distance 
between  the  headlands  at  the  mouth  of  Buzzard's  Bay  "  was  more 
than  one  and  less  than  two  marine  leagues;"   that  "the  distance 


A'' 


SECT,  I.  C]  MANCHESTER   V.    MASSACHUSETTS.  657 

across  said  bay,  at  the  point  where  the  acts  of  the  defendant  were 
done,  is  more  than  two  marine  leagues,  and  the  opposite  points  are  in 
different  counties ;  "  and  that  "  the  phice  where  the  defendant  was  so 
engaged  with  said  seine  was  about,  and  not  exceeding,  one  mile  and  a 
quarter  from  a  point  on  the  shore  midway  from  the  north  line  of"  the 
town  of  Falmouth  "  to  the  south  line  "  of  that  town. 

Buzzard's  Bay  lies  wholly  within  the  territory  of  Massachusetts, 
having  Barnstable  County  on  the  one  side  of  it,  and  the  counties  of 
Bristol  and  Plymouth  on  the  other.  The  defendant  offered  evidence 
that  he  was  fishing  for  menhaden  only  with  a  purse  seine ;  that  "  the 
bottom  of  the  sea  was  not  encroached  upon  or  disturbed  ;  "  "  that  it 
was  impossible  to  discern  objects  across  from  one  headland  to  the 
other  at  the  mouth  of  Buzzard's  Bay ;  "  and  that  the  steamer  was 
duly  enrolled  and  licensed  at  the  port  of  Newport,  Ehode  Island, 
under  the  laws  of  the  United  States,  for  carrying  on  the  menhaden 
fishery. 

By  section  1  of  chapter  196  of  the  laws  of  Massachusetts  of  1881, 
it  was  enacted  as  follows :  "  Section  1.  The  boundaries  of  cities  and 
towns  bordering  upon  the  sea  shall  extend  to  the  line  of  the  Common- 
wealth^as  the  same  is  defined  in  section  one  of  chapter  one  of  the 
General  Statutes."  Section  1  of  chapter  1  of  the  General  Statutes 
contains  the  provisions  before  recited  as  now  contained  in  the  Pub- 
lic Statutes,  chapter  1,  section  1,  and  chapter  22,  sections  1  and 
11.  Buzzard's  Bay  was  undoubtedly  within  the  territory  described 
in  the  charter  of  the  Colony  of  New  Plymouth  and  the  Province 
charter.  By  the  definitive  treaty  of  peace  of  September  3,  1783,  be- 
tween the  United  States  and  Great  Britain  (8  Stat.  81),  His  Biitannic 
Majesty  acknowledged  the  United  States,  of  which  Massachusetts 
Bay  was  one,  to  be  free,  sovereign,  and  independent  States,  and 
declared  that  he  treated  with  them  as  such,  and,  for  himself,  his 
heirs  and  successors,  relinquished  all  claims  to  the  government,  pro- 
priety, and  territorial  rights  of  the  same  and  every  part  thereof. 
Therefore,  if  Massachusetts  had  continued  to  be  an  independent 
nation,  her  boundaries  on  the  sea,  as  defined  by  her  statutes,  would 
unquestionably  be  acknowledged  by  all  foreign  nations,  and  her  right 
to  control  the  fisheries  within  those  boundaries  would  be  conceded. 
The  limits  of  the  right  of  a  nation  to  control  the  fisheries  on  its  sea- 
coasts,  and  in  the  bays  and  arms  of  the  sea  within  its  territory,  have 
never  been  placed  at  less  than  a  marine  league  from  the  coast  on 
the  open  sea;  and  bays  wholly  within  the  territory  of  a  nation,  the 
headlands  of  which  are  not  more  than  two  marine  leagues,  or  six 
geographical  miles,  apart,  have  always  been  regarded  as  a  part  of  the 
tc;rritory  of  the  nation  in  which  they  lie.  Proceedings  of  the  Halifax 
Commission  of  1877,  under  the  Treaty  of  Washington  of  May  8,  1871, 
Executive  Document  No.  89,  45th  Congress,  2d  session.  Ho.  Keps., 
pp.  120,  121,  IGG. 

On  this  branch  of  the   subject  the  case  of  The  Queen  v.  Keyn, 

i2 


658  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

2  Exch.  D.  63.  is  cited  for  the  plaintiff  in  error,  but  there  the  ques- 
tion was  not  as  to  the  extent  of  the  dominion  of  Great  Britain  over 
the  open  sea  adjacent  to  the  coast,  but  only  as  to  the  extent  of  the 
existing  jurisdiction  of  the  Court  of  Admiralty  in  England  over 
offences  committed  on  the  open  sea;  and  the  decision  had  notliing  to 
do  with  the  right  of  control  over  fisheries  in  the  open  sea  or  in  bays 
or  arms  of  the  sea.  In  all  the  cases  cited  in  the  opinions  delivered 
in  The  Queen  v.  Keyn,  wherever  the  question  of  the  right  of  fishery 
is  referred  to,  it  is  conceded  that  the  control  of  fisheries,  to  the  extent 
of  at  least  a  marine  league  from  the  shore,  belongs  to  the  nation  on 
whose  coast  the  fisheries  are  prosecuted. 

In  Direct  U.  S.  Cable  Co.  v.  Anglo  American  Tel.  Co.,  2  App.  Cas. 
394,  it  became  necessary  for  the  Privy  Council  to  determine  whether 
a  point  in  Conception  Bay,  Newfoundland,  more  than  three  miles 
from  the  shore,  was  a  part  of  the  territory  of  ISTewfoundland,  and  within 
the  jurisdiction  of  its  legislature.  The  average  width  of  the  bay  was 
about  fifteen  miles,  and  the  distance  between  its  headlands  was  ratlier 
more  than  twenty  miles ;  but  it  was  held  that  Conception  Bay  Avas  a 
part  of  the  territory  of  Newfoundland,  because  the  British  govern- 
ment had  exercised  exclusive  dominion  over  it,  with  the  acquiescence 
of  other  nations,  and  it  had  been  declared  by  act  of  Parliament  "  to 
be  part  of  the  British  territory,  and  part  of  the  country  made  subject 
to  the  legislature  of  Newfoundland." 

We  think  it  must  be  regarded  as  established  that,  as  between  na- 
tions, the  minimum  limit  of  the  territorial  jurisdiction  of  a  nr.tion 
over  tide-waters  is  a  marine  league  from  its  coast;  that  bays  wholly 
within  its  territory  not  exceeding  two  marine  leagues  in  width  at  the 
mouth  are  within  this  limit ;  and  that  included  in  this  territorial  juris- 
diction is  the  right  of  control  over  fisheries,  whether  the  fish  be 
migratory,  free-swimming  fish,  or  free-moving  fish,  or  fish  attached 
to  or  embedded  in  the  soil.  The  open  sea  within  this  limit  is,  of 
course,  subject  to  the  common  right  of  navigation;  and  all  govern- 
ments, for  the  purpose  of  self-protection  in  time  of  war  or  for  the 
prevention  of  frauds  on  its  revenue,  exercise  an  authority  beyond 
this  limit.  Gould,  Waters,  Part  1,  c.  1,  §§  1-17,  and  notes  ;  Neill  v. 
Duke  of  Devonshire,  8  A])p.  Cas.  135;  Gammell  v.  Commissioners, 

3  Macq.  419 ;  Mowat  v.  McFee,  5  Canada  Sup.  Ct.  G6 ;  The  Queen 
V.  Cubitt,  22  Q.  B.  D.  622;  St.  46  &  47  Vict.  c.  22. 

It  is  further  insisted  by  the  plaintiff  in  error,  that  the  control  of 
the  fisheries  of  Buzzard's  Bay  is,  by  the  Constitution  of  the  United 
States,  exclusively  with  the  United  States,  and  that  che  statute  of 
Massachusetts  is  repugnant  to  that  Constitution  and  to  the  laws  of  the 
United  States. 

In  Dunham  v.  Lamphere,  3  Gray,  2G8,  it  was  held  (Chief  Justice 
Shaw  delivering  the  opinion  of  the  court),  that  in  the  distribution  of 
powers  between  the  general  and  State  governments,  the  right  to  the 
fisheries  and  the  power  to  regulate  the  fisheries  on  the  coasts  and  in 


SECT.  I.  c]  MANCHESTER   V.   MASSACHUSETTS.  659 

the  tide-waters  of  the  State,  were  left,  by  the  Constitution  of  the 
United  States,  with  tlie  States,  subject  only  to  such  powers  as  Con- 
gress may  justly  exercise  in  the  regulation  of  comnierce,  foreign  and 
domestic.  In  the  present  case  the  court  below  was  asked  to  recon- 
sider that  decision,  mainly  on  the  ground  that  the  admiralty  and 
maritime  jurisdiction  of  the  courts  of  the  United  States  was  nut  con- 
sidered in  the  opinion,  and  that  the  recent  decisions  of  the  Supreme 
Court  of  the  United  States,  on  the  power  of  Congress  to  regulate 
commerce,  required  that  the  decision  be  reconsidered;  but  the  court 
stated  that  no  recent  decisions  of  this  court  had  been  cited  which 
related  to  the  regulation  of  fisheries  within  the  territorial  tide-waters 
of  a  State,  and  that  the  decisions  of  this  court  which  related  to  that 
subject  did  not  appear  to  be  in  conflict  with  the  decision  in  Dunham 
t>.  Lamphere,  and  that  it  never  had  been  decided  anywhere  that  the 
regulation  of  the  fisheries  within  the  territorial  limits  of  a  State  was 
a  regulation  of  commerce. 

It  is  further  contended  that  by  the  Constitution  of  the  United 
States  the  judicial  power  of  the  United  States  extends  to  all  cases  of 
admiralty  and  maritime  jurisdiction,  and  is  exclusive  ;  that  this  case 
is  within  such  jurisdiction  ;  and  that,  therefore,  the  courts  of  Massa- 
chusetts have  no  jurisdiction  over  it.  In  McCready  i:  Virginia,  94 
U.  S.  391,  the  question  involved  was,  whether  the  State  of  Virginia 
could  prohibit  the  citizens  of  other  States  from  planting  oysters  in 
Ware  River,  a  stream  in  Virginia  where  the  tide  ebbed  and  flowed, 
when  her  own  citizens  had  that  privilege.  In  that  case  it  Avas  said, 
that  the  principle  had  long  been  settled  in  this  court,  that  each  State 
owns  the  beds  of  all  tide-waters  within  its  jurisdiction,  unless  they 
have  been  granted  away;  and  that^  in  like  manner,  the  States  own 
the  tide-waters  themselves  and  the  fish  in  them,  so  far  as  they  are 
capable  of  ownership  while  running;  and  this  court  added,  in  its 
opinion  :  "  The  title  thus  held  is  subject  to  the  paramount  right  of 
navigation,  the  regulation  of  which,  in  respect  to  foreign  and  inter- 
state commerce,  has  been  granted  to  the  United  States.  There  has 
been,  however,  no  such  grant  of  power  over  the  fisheries.  These  re- 
main under  the  exclusive  control  of  the  State,  which  has  consequently 
the  right,  in  its  discretion,  to  appropriate  its  tide-waters  and  their 
beds  to  be  used  by  its  people  as  a  common  for  taking  and  cultivating 
fish,  so  far  as  it  may  be  done  without  obstructing  navigation.  Such 
an  appropriation  is  in  effect  nothing  more  than  a  regulation  of  the 
use  by  the  people  of  their  common  property.  The  right  which  the 
people  of  the  State  thus  acquire  comes  not  from  their  citizenship 
alone,  but  from  their  citizenship  and  property  combined.  It  is, 
in  fact,  a  property  right,  and  not  a  mere  privilege  or  immunity 
of  citizenship." 

In  Smith  v.  Maryland,  18  How.  71,  74,  a  vessel  licensed  to  be  em- 
ployed in  the  coasting  trade  and  fisheries  was  seized  by  the  sheriff 
of  Anne  Arundel  County  in  Maryland,  while  engaged  in  dredging  for 


6G0  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

oysters  in  Chesapeake  Bay,  in  violation  of  a  statute  of  Mavyland 
enacted  for  the  purpose  of  preventing  the  destruction  of  oysters  in 
tlie  waters  of  that  State  ;  and  the  questions  presented  were  whether 
that  statute  was  repugnant  to  the  provisions  of  the  Constitution  of 
the  United  States  which  grant  to  Congress  the  power  to  regulate 
commerce,  or  to  those  which  declare  that  the  judicial  power  of  the 
United  States  shall  extend  to  all  cases  of  admiralty  and  maritime 
jurisdiction,  or  to  those  which  declare  that  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States.  Mr.  Justice  Curtis,  in  delivering  the  opinion  of  this 
court,  said  :  "  Whatever  soil  below  low-water  mark  is  the  subject  of 
exclusive  property  and  ownership,  belongs  to  the  State  on  whose 
maritime  border  and  within  whose  territory  it  lies,  subject  to  any 
lawful  grants  of  that  soil  by  the  State,  or  the  sovereign  power  which 
governed  its  territory,  before  the  Declaration  of  Independence.  Pol- 
lard V.  Hagan,  3  How.  212;  Martin  v.  Waddell,  16  Pet.  367:  Den 
V.  Jersey  Co.,  15  How.  426.  But  this  soil  is  held  by  the  State, 
not  only  subject  to,  but  in  some  sense  in  trust  for,  the  enjoyment 
of  certain  public  rights,  among  which  is  the  common  liberty  of 
taking  fish,  as  well  shell-fish  as  floating  fish."  He  also  said  that  the 
statute  of  Maryland  does  "  not  touch  the  subject  of  the  common 
liberty  of  taking  oysters,  save  for  the  purpose  of  guarding  it  from 
injury,  to  whomsoever  it  may  belong,  and  by  whomsoever  it  may  be 
enjoyed.  Whether  this  liberty  belongs  exclusively  to  the  citizens  of 
the  State  of  Maryland,  or  may  lawfully  be  enjoyed  in  common  by  all 
citizens  of  the  United  States ;  whether  this  public  use  may  be  re- 
stricted by  the  State  to  its  own  citizens  or  a  part  of  them,  or  by  force 
of  the  Constitution  of  the  United  States  must  remain  common  to  all 
citizens  of  the  United  States ;  whether  the  national  government,  by  a 
treaty  or  act  of  Congress,  can  grant  to  foreigners  the  right  to  par- 
ticipate therein ;  or  what,  in  general,  are  the  limits  of  the  trust  upon 
which  the  State  holds  this  soil,  or  its  power  to  define  and  control  that 
trust,  are  matters  wholly  without  the  scope  of  tliis  case,  and  upon 
which  we  give  no  opinion."  Upon  the  question  of  the  admiralty 
jurisdiction,  he  said  :  "  But  we  consider  it  to  have  been  settled  by 
this  court,  in  United  States  v.  Bevans,  3  Wheat.  336,  that  this  clause 
in  the  Constitution  did  not  affect  the  jurisdiction,  nor  the  legislative 
power  of  the  States,  over  so  much  of  their  territory  as  lies  below 
high-water  mark,  save  that  they  parted  with  the  power  so  to  legislate 
as  to  conflict  with  the  admiralty  jurisdiction  or  laws  of  the  United 
States.  As  this  law  conflicts  neither  with  the  admiralty  jurisdiction 
of  any  court  of  the  United  States  conferred  by  Congress,  nor  with 
any  law  of  Congress  whatever,  we  are  of  opinion  it  is  not  repugnant 
to  this  clause  of  the  Constitution."  The  court  also  held  that  the  act 
was  not  repugnant  to  the  clause  of  the  Constitution  which  conferred 
upon  Congress  the  power  to  regulate  commerce,  and  that  the  enrol- 
ment and  license  of  the  vessel  gave  to  the  plaintiff  in  error  no  right 


SECT.  I.  C]  MANCHESTER   V.    MASSACHUSETTS.  6G1 

to  violate  the  statute  of  Maryland.  It  is  said  in  the  opinion  that 
"  no  (.question  was  made  in  the  court  below  whether  the  place  in  ques- 
tion be  within  the  territory  of  the  State.  The  law  is,  in  terms,  limited 
to  the  waters  of  the  State  ;  "  and  the  question,  therefore,  did  not  arise 
"whether  a  voyage  of  a  vessel,  licensed  and  enrolled  for  the  coasting 
trade,  had  been  interrupted  by  force  of  a  law  of  a  State  while  on  the 
high  seas,  and  out  of  the  territorial  jurisdiction  of  such  State."  The 
dimensions  of  Chesapeake  Bay  do  not  appear  in  the  report  of  the  case, 
but  it  has  been  said  that  this  bay  is  "  twelve  miles  across  at  the  ocean." 
1  Bish.  Crim.  Law,  §  105.  It  is  a  bay  considerably  larger  than  Buz- 
zard's Bay,  and  is  not  wholly  within  the  State  of  Maryland,  although 
at  the  point  where  Anne  Arundel  County  bounds  upon  it  it  is  wholly 
in  that  State.  Haney  v.  Compton,  36  X.  J.  Law,  507;  Corfield  v. 
Coryell,  4  Wash.  C.  C.  371 ;  Weston  v.  Sampson,  8  Cush.  347  ;  Mahler 
V.  Norwich  &  New  York  Transportation  Co.,  35  K.  Y.  352 ;  United 
States  V.  Smiley,  6  Sawyer,  640. 

In  the  case  of  Stockton  v.  Baltimore  &  IST.  Y.  K.  Co.,  32  Fed.  Eep. 
9,  in  the  Circuit  Court  for  the  District  of  Xew  Jersey,  Mr.  Justice 
Bradley  shows  clearly  that  there  is  no  necessary  conflict  between  the 
right  of  the  State  to  regulate  the  fisheries  in  a  given  locality  and  the 
right  of  the  United  States  to  regulate  commerce  and  navigation  in 
the  same  locality.  He  says  that,  prior  to  the  Revolution,  the  shore 
and  lands  under  water  of  the  navigable  streams  and  waters  of  the 
Province  of  New  Jersey  belonged  to  the  King  of  Great  Britain,  and, 
after  the  Conquest,  those  lands  were  held  by  the  State,  as  they  were 
by  the  King,  in  trust  for  the  public  uses  of  navigation  and  fishery. 
He  adds  :  "  It  is  true  that  to  utilize  the  fisheries,  especially  those  of 
shell-fish,  it  was  necessary  to  parcel  them  out  to  particular  operators. 
.  .  .  The  power  to  regulate  commerce  is  the  basis  of  the  power  to 
regulate  navigation  and  navigable  waters  and  streams.  ...  So  wide 
and  extensive  is  the  operation  of  this  power  that  no  State  can  place 
any  obstruction  in  or  upon  any  navigable  waters  against  the  will  of 
Congress."  The  doctrine  has  always  been  firmly  maintained  by  this 
court,  that  whenever  a  conflict  arises  between  a  State  and  the  United 
States,  as  to  the  regulation  of  commerce  or  navigation,  the  authority 
of  the  latter  is  supreme  and  controlling. 

Under  the  grant  by  the  Constitution  of  judicial  power  to  the  United 
States  in  all  cases  of  admiralty  and  maritime  jurisdiction,  and  under 
the  rightful  legislation  of  Congress,  personal  suits  on  maritime  con- 
tracts or  for  maritime  torts  can  be  maintained  in  the  State  courts ; 
and  the  courts  of  the  United  States,  merely  by  virtue  of  this  grant  of 
judicial  power,  and  in  the  absence  of  legislation  by  Congress,  have 
no  criminal  jurisdiction  whatever.  The  criminal  jurisdiction  of  the 
courts  of  the  United  States  is  wholly  derived  from  the  statutes  of 
the  United  States.  Butler  v.  Boston  &  Savannah  Steamship  Co.,  130 
U.  S.  527;  The  Belfast,  7  Wall.  624;  The  Eagle,  8  Wall.  15;  Leon 
V.  Galceran,  11  Wall.  185 ;  Steamboat  Co.  v.  Chase,  16  Wall.  522 ; 


662  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

s.  c.  9  E.  I.  419;  Schoonmaker  v.  Gilniore,  102  U.  S.  118;  Insurance 
Co.  V.  Dunham,  11  Wall.  1;  Jones  v.  United  States,  137  U.  S.  202,  211. 
In  each  of  the  cases  of  United  States  v.  Bevans,  3  Wheat.  336,  and 
of  Commonwealth  v.  Peters,  12  Met.  387,  the  place  where  the  offence 
■was  counnitted  was  in  Boston  Harbor;  and  it  was  held  to  be  within 
the  jurisdiction  of  ^Massachusetts,  according  to  the  meaning  of  the 
statutes  of  the  United  States  which  punished  certain  offences  com- 
mitted ujion  the  high  seas  or  in  any  river,  haven,  basin,  or  bay  "  out 
of  the  jurisdiction  of  any  particular  State."  The  test  applied  in 
Commonwealth  v.  Peters,  which  was  decided  in  the  year  1847.  was 
that  the  place  was  within  a  bay  "  not  so  wide  but  that  persons  and 
objects  on  the  one  side  can  be  discerned  by  the  naked  eye  by 
persons  on  the  opposite  side,"  and  was  therefore  within  the  body 
of  a  county.  In  United  States  v.  Bevans,  Marshall,  C  J.,  said : 
'•The  jurisdiction  of  a  State  is  coextensive  with  its  territory;  coex- 
tensive with  its  legislative  power.  The  place  described  is  unquestion- 
ably within  the  original  territory  of  Massachusetts.  It  is  then  within 
the  jurisdiction  of  Massachusetts,  unless  that  jurisdiction  has  been 
ceded  to  the  United  States."  If  the  place  where  the  offence  charged 
in  this  case  was  committed  is  within  the  general  jurisdiction  of  ^las- 
sachusetts,  then,  according  to  the  principles  declared  in  Smith  v. 
Maryland,  the  statute  in  question  is  not  repugnant  to  the  Constitu- 
tion and  laws  of  the  United  States. 

It  is  also  contended  that  the  jurisdiction  of  a  State  as  between  it 
and  the  United  States  must  be  confined  to  the  body  of  counties; 
that  counties  must  be  defined  according  to  the  customary  English 
usage  at  the  time  of  the  adoption  of  the  Constitution  of  the  United 
States  ;  that  by  this  usage  counties  were  bounded  by  the  margin  of 
the  open  sea ;  and  that,  as  to  bays  and  arms  of  the  sea  extending  into 
the  land,  only  such  or  such  parts  were  included  in  counties  as  were 
so  narrow  that  objects  could  be  distinctly  seen  from  one  shore  to  the 
other  by  the  naked  eye.  But  there  is  no  indication  that  the  cus- 
tomary law  of  England  in  regard  to  the  boundaries  of  counties  was 
adopted  by  the  Constitution  of  the  United  States  as  a  measure  to  de- 
termine the  territorial  jurisdiction  of  the  States.  The  extent  of  the 
territorial  jurisdiction  of  iMassachusetts  over  the  sea  adjacent  to  its 
coast  is  that  of  an  independent  nation ;  and,  except  so  far  as  any 
right  of  control  over  this  territory  has  been  granted  to  the  United 
States,  this  control  remains  with  the  State.  In  United  States 
V.  Bevans,  Marshall,  C.  J.,  in  the  opinion,  asks  the  following  ques- 
tions :  "  Can  the  cession  of  all  cases  of  admiralty  and  maritime  juris- 
diction be  construed  into  a  cession  of  the  waters  on  which  those  cases 
may  arise  ?  "  "  As  the  powers  of  the  respective  governments  now 
stand,  if  two  citizens  of  Massachusetts  step  into  shallow  water  when 
the  tide  flows,  and  fight  a  duel,  are  they  not  within  the  jurisdiction, 
and  punishable  by  the  laws,  of  ^Massachusetts  ?  "  The  statutes  of  the 
United  States  define  and  punish  but  few  offences  on  the  high  seas, 


SECT.  I.  C]  MANCHESTER    V.    MASSACHUSETTS.  663 

ami,  unless  other  offences  when  committed  in  the  sea  near  the  coast 
can  be  punished  by  the  States,  there  is  a  large  immunity  from  punish- 
ment for  acts  which  ought  to  be  punishable  as  criminal.  Within 
what  are  generally  i-ecognized  as  the  territorial  limits  of  States  by 
the  law  of  nations,  a  State  can  define  its  boundaries  on  the  sea  and 
the  boundaries  of  its  counties;  and  by  this  test  the  Commonwealth 
of  Massachusetts  can  include  Buzzard's  Bay  within  the  limits  of  its 
counties. 

The  statutes  of  Massachusetts,  in  regard  to  bays  at  least,  make 
definite  boundaries  which,  before  the  passage  of  the  statutes,  were 
somewhat  indefinite;  and  Rhode  Island  and  some  other  States  have 
passed  similar  statutes  defining  their  boundaries.  Public  Statutes 
of  Rhode  Island,  1882,  c.  1,  §§  1,  2;  c.  3,  §  G;  Gould,  Waters,  §  16 
and  note.  The  waters  of  Buzzard's  Bay  are,  of  course,  navigable 
waters  of  the  United  States,  and  the  jurisdiction  of  Massachusetts 
over  them  is  necessarily  limited,  Commonwealth  v.  King,  150  Mass. 
221 ;  but  there  is  no  occasion  to  consider  the  power  of  the  United 
States  to  regulate  or  control,  either  by  treaty  or  legislation,  the 
fisheries  in  these  waters,  because  there  are  no  existing  treaties  or 
acts-  of  Congress  which  relate  to  the  menhaden  fisheries  within  such 
a  bay.  The  rights  granted  to  British  subjects  by  the  treaties  of  June 
5,  1854,  and  May  8,  1871,  to  take  fish  upon  the  shores  of  the  United 
States,  had  expired  before  the  statute  of  Massachusetts  (St.  1886, 
c.  192)  was  passed  which  the  defendant  is  charged  with  violating. 
The  Fish  Commission  was  instituted  "  for  the  protection  and  preser- 
vation of  the  food  fishes  of  the  coast  of  the  United  States."  Title  51 
of  the  Revised  Statutes  relates  solely  to  food  fisheries,  and  so  does 
the  act  of  1887.  Xor  are  we  referred  to  any  decision  which  holds 
that  the  other  acts  of  Congress  alluded  to  apply  to  fisheries  for  men- 
haden, which  is  found  as  a  fact  in  this  case  not  to  be  a  food  fish, 
and  to  be  only  valuable  for  the  purpose  of  bait  and  of  manufacture 
into  fish  oil. 

The  statute  of  ^lassachusetts  which  the  defendant  is  charged  with 
violating  is,  in  terms,  confined  to  waters  "  within  the  jurisdiction  of 
this  Commonwealth  ;  "  and  it  was  evidently  passed  for  the  preserva- 
tion of  the  fish,  and  makes  no  discrimination  in  favor  of  citizens  of 
^Massachusetts  and  against  citizens  of  other  States.  If  there  be  a 
liberty  of  fishing  for  swimming  fish  in  the  navigable  waters  of 
the  United  States  common  to  the  inhabitants  or  the  citizens  of  the 
United  States,  upon  which  we  express  no  opinion,  the  statute  may 
well  be  considered  as  an  impartial  and  reasonable  regulation  of  this 
liberty;  and  the  subject  is  one  which  a  State  may  well  be  permitted 
to  regulate  within  its  territory,  in  the  absence  of  any  regulation  by 
the  United  States.  The  preservation  of  fish,  even  although  they  are 
not  used  as  food  for  human  beings,  but  as  food  for  other  fish  which 
are  so  used,  is  for  the  common  benefit;  and  we  are  of  opinion  that 
the  statute  is  not  repugnant  to  the  Constitution  and  the  laws  of 
the  United  States. 


664  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

It  may  be  observed  that  section  4398  of  the  Eevised  Statutes  (a  re- 
enactmeut  of  section  4  of  the  joint  resohition  of  February  9, 1871)  pro- 
vides as  follows,  in  regard  to  the  Commissioner  of  Fish  and  Fisheries  : 
"  The  commissioner  may  take  or  cause  to  be  taken  at  all  times,  in  the 
waters  of  the  seacoast  of  the  United  States,  where  the  tide  ebbs  and 
flows,  and  also  in  the  waters  of  the  lakes,  such  fish  or  specimens  there- 
of as  may  in  his  judgment,  from  time  to  time,  be  needful  or  proper  for 
the  conduct  of  his  duties,  any  law,  custom,  or  usage  of  any  State  to  the 
contrary  notwithstanding."  This  enactment  may  not  improperly  be 
construed  as  suggesting  that,  as  against  the  law  of  a  State,  the  Fish 
Commissioner  might  not  otherwise  have  the  right  to  take  fish  in  places 
covered  by  the  State  law. 

The  pertinent  observation  may  be  made  that,  as  Congress  does  not 
assert,  by  legislation,  a  right  to  control  pilots  in  the  bays,  inlets, 
rivers,  harbors,  and  ports  of  the  United  States,  but  leaves  the  regula- 
tion of  that  matter  to  the  States,  Cooley  v.  Board  of  Wardens,  12  How. 
299 ;  so,  if  it  does  not  assert  by  affirmative  legislation  its  right  or  will 
to  assume  the  control  of  menhaden  fisheries  in  such  bays,  the  right  to 
control  such  fisheries  must  remain  with  the  State  which  contains  such 
bays. 

We  do  not  consider  the  question  whether  or  not  Congress  would 
have  the  right  to  control  the  menhaden  fisheries  which  the  statute  of 
Massachusetts  assumes  to  control ;  but  we  mean  to  say  only  that,  as 
the  right  of  control  exists  in  the  State  in  the  absence  of  the  affirma- 
tive action  of  Congress  taking  such  control,  the  fact  that  Congress 
has  never  assumed  the  control  of  such  fisheries  is  persuasive  evidence 
that  the  right  to  control  them  still  remains  in  the  State. 

Judgment  affirmed. 


THE   MOSES   TAYLOR. 
4  Wallace,  411.     1866. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  case  arises  tipon  certain  provisions  of  a  statute  of  California 
regulating  proceedings  in  civil  cases  in  the  courts  of  that  State. 
Laws  of  California  of  1851,  p.  51.  The  sixth  chapter  of  the  statute 
relates  to  actions  against  steamers,  vessels,  and  boats,  and  provides 
that  they  shall  be  liable  —  1st,  for  services  rendered  on  board  of 
them,  at  the  request  of,  or  on  contract  with,  their  respective  owners, 
agents,  masters,  or  consignees ;  2d,  for  supplies  furnished  for  their 
use  upon  the  like  request ;  3d,  for  materials  furnished  in  their 
construction,  repair,  or  equipment;  4th,  for  their  wharfage  and 
anchorage  within  the  State  ;  5th,  for  non-performance  or  mal- 
performance  of  any  contract  for  the  transportation  of  persons  or 


SECT.  I.  c]  THE   MOSES   TAYLOR,  665 

property  made  by  their  respective  owners,  agents,  masters,  or  con- 
signees; 6th,  for  injuries  committed  by  them  to  persons  or  property  ; 
and  declares  that  these  several  causes  of  action  shall  constitute  liens 
upon  the  steamers,  vessels,  and  boats,  for  one  year  after  the  causes, 
of  action  shall  have  accrued,  and  have  priority  in  the  order  enu- 
merated, and  preference  over  all  other  demands.  The  statute  also 
provides  that  actions  for  demands  arising  upon  any  of  these  grounds 
may  be  brought  directly  against  the  steamers,  vessels,  or  boats  by 
name ;  that  process  may  be  served  on  the  master,  mate,  or  any  per- 
son having  charge  of  the  same  ;  that  they  may  be  attached  as  security 
for  the  satisfaction  of  any  judgment  which  maybe  recovered;  and 
that  if  the  attachment  be  not  discharged,  and  a  judgment  be  recovered 
by  the  plaintiff,  they  may  be  sold,  with  their  tackle,  apparel,  and 
furniture,  or  such  interest  therein  as  may  be  necessary,  and  the 
proceeds  applied  to  the  payment  of  the  judgment. 

These  provisions,  with  the  exception  of  the  clause  designating  the 
order  of  priority  in  the  liens,  and  their  preference  over  other 
demands,  were  enacted  in  1851 ;  that  clause  was  inserted  by  an 
amendment  in  1860. 

In  1863,  the  steamship  Moses  Taylor,  a  vessel  of  over  one  thou- 
sand tons  burden,  was  owned  by  Marshall  0.  Roberts,  of  the  city  of 
New  York,  and  was  employed  by  him  in  navigating  the  Pacific 
Ocean,  and  in  earring  passengers  and  freight  between  Panama  and 
San  Francisco.  In  October  of  that  year  the  plaintiff  in  the  court 
below,  the  defendant  in  error  in  this  court,  entered  into  a  contract 
with  Roberts,  as  owner  of  this  steamship,  by  which,  in  consideration 
of  one  hundred  dollars,  Roberts  agreed  to  transport  him  from  New 
York  to  San  Francisco  as  a  steerage  passenger,  with  reasonable 
despatch,  and  to  furnish  him  with  proper  and  necessary  food,  water, 
and  berths,  or  other  conveniences  for  lodging,  on  the  voyage.  The 
contract,  as  set  forth  in  the  complaint,  does  not  in  terms  provide  for 
transportation  on  any  portion  of  the  voyage  by  the  Moses  Taylor, 
but  the  case  was  tried  upon  the  supposition  that  such  was  the  fact, 
and  we  shall,  therefore,  treat  the  contract  as  if  it  specified  a  trans- 
portation by  that  steamer  on  the  Pacific  for  the  distance  between 
Panama  and  San  Francisco.  For  alleged  breach  of  this  contract  the 
present  action  was  brought  under  the  statute  mentioned,  in  a  court 
of  a  justice  of  the  peace  held  within  the  city  of  San  Francisco. 
Courts  held  by  justices  of  the  peace  were  at  that  time  by  another 
statute  invested  with  jurisdiction  of  these  cases,  where  the  amount 
claimed  did  not  exceed  two  hundred  dollars,  except  where  the  action 
was  brought  to  recover  seamen's  wages,  for  a  voyage  performed,  in 
whole  or  in  part,  without  the  waters  of  the  State.  Laws  of  Cali- 
fornia of  1853,  p.  287,  and  of  1856,  p.  133. 

The  agent  for  the  Moses  Taylor  appeared  to  the  action,  and 
denied  the  jurisdiction  of  the  court,  insisting  that  the  cause  of  action 
was  one  over  which  the  courts  of  admiralty  had  exclusive  jurisdic- 


666  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

tion,  and  also  traversed  the  several  matters  alleged  as  breaches  of  the 
contract. 

Tlie  justice  of  the  peace  overruled  the  objection  to  his  jurisdic- 
tion, and  gave  judgnient  for  the  amount  claimed.  On  appeal  to  the 
County  (/ourt  the  action  was  tried  de  novo  upon  the  same  pleadings, 
but  in  all  respects  as  if  originally  commenced  in  that  court.  The 
want  of  jurisdiction  there,  and  the  exclusive  cognizance  of  such 
causes  of  action  by  the  courts  of  admiralty,  were  again  urged  and 
were  again  overruled;  and  a  similar  judgment  to  that  of  the  justice 
of  the  peace  was  rendered.  The  amount  of  the  judgment  was  too 
small  to  enable  the  owner  of  the  steamer  to  take  the  case  by  appeal 
to  the  Supreme  Court  of  the  State.  That  court  has  no  appellate 
jurisdiction  in  cases  where  the  demand  in  dispute,  exclusive  of 
interest,  is  under  three  hundred  dollars,  unless  it  involve  the  legality 
of  a  tax,  impost,  assessment,  toll,  or  municipal  fine.  Constitution  of 
the  State,  Art.  VI.  sec.  4,  as  amended  in  18C2.  The  decision  of  the 
County  Court  was  the  decision  of  the  highest  court  in  the  State 
which  had  jurisdiction  of  the  matter  in  controversy.  From  that 
court,  therefore,  the  case  is  brought  here  by  writ  of  error. 

The  case  presented  is  clearly  one  within  the  admiralty  and  mari- 
time jurisdiction  of  the  Federal  courts.  The  contract  for  the  trans- 
portation of  the  plaintiff  was  a  maritime  contract.  As  stated  in  the 
complaint,  it  related  exclusively  to  a  service  to  be  performed  on  the 
high  seas,  and  pertained  solely  to  the  business  of  commerce  and  navi- 
gation. There  is  no  distinction  in  principle  between  a  contract  of 
this  character  and  a  contract  for  the  transportation  of  merchandise. 
The  same  liability  attaches  upon  their  execution  both  to  the  owner 
and  the  ship.  The  passage-money  in  the  one  case  is  equivalent  to 
the  freight-money  in  the  other.  A  breach  of  either  contract  is  the 
appropriate  subject  of  admiralty  jurisdiction. 

The  action  against  the  steamer  by  name,  authorized  by  the  statute 
of  California,  is  a  proceeding  in  the  nature  and  with  the  incidents  of 
a  suit  in  admiralty.  The  distinguishing  and  characteristic  feature 
of  such  suit  is  that  the  vessel  or  thing  proceeded  against  is  itself 
seized  and  impleaded  as  the  defendant,  and  is  judged  and  sentenced 
accordingly.  It  is  this  dominion  of  the  suit  in  admiralty  over  the 
vessel  or  thing  itself  which  gives  to  the  title  made  under  its  decrees 
validity  against  all  the  world.  By  the  common-law  process,  whether 
of  mesne  attachment  or  execution,  property  is  reached  only  through 
a  personal  defendant,  and  then  only  to  the  extent  of  his  title.  Under 
a  sale,  therefore,  upon  a  judgment  in  a  common-law  proceeding  the 
title  acquired  can  never  be  better  than  that  possessed  by  the  personal 
defendant.     It  is  his  title,  and  not  the  property  itself,  which  is  sold. 

The  statute  of  California,  to  the  extent  in  which  it  authorizes 
actions  in  rem  against  vessels  for  causes  of  action  cognizable  in  the 
admiralty,  invests  her  courts  with  admiralty  jurisdiction,  and  so  the 
Supreme  Court  of  that  State  has  decided  in  several  cases.     In  Averill 


I 


m 


SECT.  I.  C]  THE   MOSES   TAYLOR.  667 

V.  The  Steamer  Hartford,  2  Cal.  308,  the  court  thus  held,  and  added 
that  "the  proceedings  in  such  actions  must  be  governed  by  tlie 
principles  and  forms  of  admiralty  courts,  except  where  otherwise 
controlled  or  directed  by  the  act." 

This  jurisdiction  of  the  courts  of  California  was  asserted  and  is 
maintained  upon  the  assumed  ground  that  the  cognizance  by  the 
Federal  courts  "  of  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion "  is  not  exclusive,  as  declared  by  the  ninth  section  of  the  Judi- 
ciary Act  of  1789. 

The  question  presented  for  our  determination  is,  therefore,  whether 
such  cognizance  by  the  Federal  courts  is  exclusive,  and  this  depends 
either  upon  the  constitutional  grant  of  judicial  power,  or  the  validity 
of  the  provision  of  the  ninth  section  of  the  act  of  Congress. 

The  Constitution  declares  that  the  judicial  power  of  the  United 
States  "shall  extend  to  all  cases,  in  law  and  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority  ;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls  ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction  ;  to  controversies  to  which  the 
United  States  shall  be  a  party  ;  to  controversies  between  two  or 
more  States  ;  between  a  State  and  citizens  of  another  State;  between 
citizens  of  different  States;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States  ;  and  between  a  State 
or  the  citizens  thereof  and  foreign  States,  citizens,  or  subjects." 
Article  II.  §  2. 

How  far  this  judicial  power  is  exclusive,  or  may,  by  the  legislation 
of  Congress,  be  made  exclusive,  in  the  courts  of  the  United  States, 
has  been  much  discussed,  though  there  has  been  no  direct  adjudica- 
tion upon  the  point.  In  the  opinion  delivered  in  the  case  of  Martin 
V.  Hunter's  Lessee,  1  Wheat.  334,  Mr.  Justice  Story  comments 
upon  the  fact  that  there  are  two  classes  of  cases  enumerated  in  the 
clause  cited,  between  which  a  distinction  is  drawn ;  that  the  first 
class  includes  cases  arising  under  the  Constitution,  laws,  and  treaties 
of  the  United  States,  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls,  and  cases  of  admiralty  and  maritime  jurisdiction  ; 
and  that,  with  reference  to  this  class,  the  expression  is  that  the 
judicial  power  shall  extend  to  all  cases  ;  but  that  in  the  subsequent 
part  of  the  clause,  which  embraces  ail  the  other  cases  of  national 
cognizance,  and  forms  the  second  class,  the  word  "  all  "  is  dropjied. 
And  the  learned  justice  appears  to  have  thought  the  variation  in  the 
language  the  result  of  some  determinate  reason,  and  suggests  that, 
with  respect  to  the  first  class,  it  may  have  been  the  intention  of  the 
framers  of  the  Constitution  imperatively  to  extend  the  judicial 
power  either  in  an  original  or  appellate  form  to  all  cases,  and,  with 
respect  to  the  latter  class,  to  leave  it  to  Congress  to  qualify  the 
jurisdiction  in  such  manner  as  public  policy  might  dictate.  jNIany 
cogent  reasons  and  various  considerations  of  public  policy  are  stated 


668  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

in  support  of  tins  suggestion.  The  vital  importance  of  all  the  cases 
enumerated  in  the  first  class  to  the  national  sovereignty  is  mentioned 
as  a  reason  which  may  have  warranted  the  distinction,  and  which 
would  seem  to  require  that  they  should  be  vested  exclusively  in  the 
national  courts,  —  a  consideration  which  does  not  apply,  at  least  with 
equal  force,  to  cases  of  the  second  class.  Without,  however,  placing 
implicit  reliance  upon  the  distinction  stated,  the  learned  justice 
observes,  in  conclusion,  that  it  is  manifest  that  the  judicial  power  of 
the  United  States  is  in  some  cases  unavoidably  exclusive  of  all  State 
authority,  and  that  in  all  others  it  may  be  made  so  at  the  election  of 
Congress.  We  agree  fully  with  this  conclusion.  The  legislation  of 
Congress  has  proceeded  upon  this  supposition.  The  Judiciary  Act 
of  1789,  in  its  distribution  of  jurisdiction  to  the  several  Federal 
courts,  recognizes  and  is  framed  upon  the  theory  that  in  all  cases  to 
which  the  judicial  power  of  the  United  States  extends.  Congress  may 
rightfully  vest  exclusive  jurisdiction  in  the  Federal  courts.  It 
declares  that  in  some  cases,  from  their  commencement,  such  jurisdic- 
tion shall  be  exclusive  ;  in  other  cases  it  determines  at  what  stage 
of  procedure  such  jurisdiction  shall  attach,  and  how  long  and  how 
far  concurrent  jurisdiction  of  the  State  courts  shall  be  permitted. 
Thus,  cases  in  which  the  United  States  are  parties,  civil  causes  of 
admiralty  and  maritime  jurisdiction,  and  cases  against  consuls  and 
vice-consuls,  except  for  certain  offences,  are  placed,  from  their  com- 
mencement, exclusively  under  the  cognizance  of  the  Federal  courts. 

On  the  other  hand,  some  cases,  in  which  an  alien  or  a  citizen  of 
another  State  is  made  a  party,  may  be  brought  either  in  a  Federal 
or  a  State  court,  at  the  option  of  the  plaintiff;  and  if  brought  in  the 
State  court  may  be  prosecuted  until  the  appearance  of  the  defendant, 
and  then,  at  his  option,  may  be  suffered  to  remain  there,  or  may  be 
transferred  to  the  jurisdiction  of  the  Federal  courts. 

Other  cases,  not  included  under  these  heads,  but  involving  ques- 
tions under  the  Constitution,  laws,  treaties,  or  authority  of  the 
United  States,  are  only  drawn  within  the  control  of  the  Federal 
courts  upon  appeal  or  writ  of  error,  after  final  judgment. 

By  subsequent  legislation  of  Congress,  and  particularly  by  the 
legislation  of  the  last  four  years,  many  of  the  cases,  which  by  the 
Judiciary  Act  could  only  come  under  the  cognizance  of  the  Federal 
courts  after  final  judgment  in  the  State  courts,  may  be  withdrawn 
from  the  concurrent  jurisdiction  of  the  latter  courts  at  earlier  stages, 
upon  the  application  of  the  defendant. 

The  constitutionality  of  these  provisions  cannot  be  seriously  ques- 
tioned, and  is  of  frequent  recognition  by  both  State  and  Federal 
courts. 

The  cognizance  of  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion vested  in  the  District  Courts  by  the  ninth  section  of  the  Judi- 
ciary Act  may  be  supported  upon  like  considerations.  It  has  been 
made  exclusive  by  Congress,  and  that  is  sufficient,  even  if  we  should 


SECT,  I.  c]  1.E0N   V.   GALCERAN.  669 

admit  that  in  the  absence  of  its  legislation  the  State  courts  might 
have  taken  cognizance  of  these  causes.  But  there  are  many  weiglity 
reasons  why  it  was  so  declared.  "The  admiralty  jurisdiction,"  says 
j\Ir.  Justice  Story,  "  naturally  connects  itself,  on  the  one  hand,  with 
our  diplomatic  relations  and  the  duties  to  foreign  nations  and  their 
subjects  ;  and,  on  the  other  hand,  with  the  great  interests  of  naviga- 
tion and  commerce,  foreign  and  domestic.  There  is,  then,  a  peculiar 
wisdom  in  giving  to  the  national  government  a  jurisdiction  of  this 
sort  which  cannot  be  yielded,  except  for  the  general  good,  and  which 
multiplies  the  securities  for  the  public  peace  abroad,  and  gives  to 
commerce  and  navigation  the  most  encouraging  support  at  home." 
Commentaries,  §  1G72. 

The  case  before  us  is  not  within  the  saving  clause  of  the  ninth 
section.  That  clause  only  saves  to  suitors  "  the  right  of  a  common- 
law  remedy,  where  the  common  law  is  competent  to  give  it."  It  is 
not  a  remedy  in  tlie  common-law  courts  which  is  saved,  but  a  com- 
mon-law remedy.  A  proceeding  in  rem,  as  used  in  the  admiralty 
courts,  is  not  a  remedy  afforded  by  the  common  law  :  it  is  a  proceed- 
ing under  the  civil  law.  When  used  in  the  common-law  courts,  it 
is  given  by  statute. 

It  follows,  from  the  views  expressed,  that  the  judgment  of  the 
County  Court  must  be  reversed,  and  the  cause  remanded,  with  direc- 
tions to  dismiss  the  action  for  want  of  jurisdiction. 

And  it  is  so  ordered. 


LEON  V.   GALCERAN". 

11  Wallace,  185.     1870. 

Galceran  and  hvo  other  sailors  brought  each  a  suit  in  personam, 
in  one  of  the  State  courts  of  Louisiana,  against  ]\Iaristany,  owner  of 
the  schooner  Gallego,  to  recover  mariners'  wages,  and  had  the 
schooner,  which  was  subject  to  a  lien  and  "  privilege  "  in  their  favor, 
according  to  the  laws  of  Louisiana,  similar  in  some  respects  to  the 
principles  of  the  maritime  law,  sequestered  by  the  sheriff  of  the 
parish.  The  writ  of  sequestration  was  levied  upon  the  schooner, 
which  was  afterwards  released  upon  Maristany's  giving  a  forthcoming 
bond,  with  one  Leon  as  surety,  for  the  return  of  the  vessel  to  the 
sheriff  on  the  final  judgment.  Judgments  having  been  rendered  by 
default  against  Maristany,  the  owner,  in  personam,  for  the  amounts 
claimed,  with  the  mariner's  lien  and  privilege  upon  the  property 
sequestered,  a  writ  of  Ji.fa.  was  issued  and  demand  made  without 
effect,  of  the  defendant  in  execution,  by  the  sheriff  for  the  return  of 
the  property  bonded.  On  the  return  of  the  sheriff  that  the  property 
bonded  could  not  be  found,  suits  (the  suits  below)  were  brought  iu 


670  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VL 

the  same  court  by  the  three  sailors  against  Leon,  to  enforce  in  j^er- 
sonam  against  hira  the  obligation  of  the  forthcoming  bonds,  and 
judgments  were  rendered  in  ji&^'sonurn  against  Leon,  the  suret}",  in 
their  favor,  for  the  amounts  fixed  by  the  original  judgments.  From 
the  judgments  thus  rendered  in  the  court  below  (that  having  been 
•the  highest  court  in  Louisiana  where  a  decision  in  the  suit  could  be 
had),  Leon  took  these  writs  of  error. 

Mk.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Mariners  in  suits  to  recover  their  wages  may  proceed  against  the 
owner  or  master  of  the  ship  in  personam,  or  they  may  proceed  in  rem 
against  the  ship  or  ship  and  freight,  at  their  election. 

Where  the  suit  is  in  rem  against  the  ship  or  ship  and  freight,  the 
original  jurisdiction  of  the  controversy  is  exclusive  in  the  District 
Courts,  as  provided  by  the  ninth  section  of  the  Judiciary  Act,  but  when 
the  suit  is  in  personam  against  the  owner  or  master  of  the  vessel, 
the  mariner  may  proceed  by  libel  in  the  District  Court,  or  he  ma}^,  at 
his  election,  proceed  in  an  action  at  law  either  in  the  Circuit  Court, 
if  he  and  his  debtor  are  citizens  of  different  States,  or  in  a  State 
court  as  in  other  causes  of  action  cognizable  in  the  State  and  Federal 
courts  exercising  jurisdiction  in  common-law  cases,  as  provided  in 
the  eleventh  section  of  the  Judiciary  Act.  1  Stat,  at  Large,  78  j  The 
Belfast,  7  Wall.  642,  644. 

He  may  have  an  action  at  law  in  the  case  supposed  either  in  the 
Circuit  Court  or  in  a  State  court,  because  the  common  law,  in  such  a 
case,  is  competent  to  give  him  a  remedy,  and  wherever  the  common 
law  is  competent  to  give  a  party  a  remedy  in  such  a  case,  the  right 
to  such  a  remedy  is  reserved  and  secured  to  suitors  by  the  saving 
clause  contained  in  the  ninth  section  of  the  Judiciary  Act. 

Services,  as  mariners  on  board  the  schooner  Gallego,  were  ren- 
dered by  each  of  the  appellees  in  these  cases,  and  their  claims  for 
wages  remaining  unpaid,  on  the  8th  of  August,  1868,  they  severally 
brought  suit  in  personam  against  Joseph  Maristany,  the  sole  owner 
of  the  schooner,  to  recover  the  respective  amounts  due  to  them  as 
wages  for  tlieir  services  as  such  mariners. 

Claims  of  the  kind  create  a  lien  upon  the  vessel  under  the  laws  of 
that  State  quite  similar  to  the  lien  which  arises  in  such  cases  under 
the  maritime  law.  They  accordingly  applied  to  the  court  where  the 
suits  were  returnable  for  writs  of  sequestration,  and  the  same  having 
been  granted  and  placed  in  the  hands  of  the  sheriff  for  service,  were 
levied  upon  the  schooner  as  a  security  to  respond  to  the  judgments 
which  the  plaintiffs  in  the  respective  suits  might  recover  against  the 
owner  of  the  vessel,  as  the  defendant  in  the  several  suits. 

Such  a  writ  when  duly  issued  and  served  in  such  a  case  has  sub- 
stantially the  same  effect  in  the  practice  of  the  courts  of  that  State 
as  an  attachment  on  mesne  process  in  jurisdictions  where  a  creditor 
is  authorized  to  employ  such  a  process  to  create  a  lien  upon  the  prop- 
erty of  his  debtor  as  a  security  to  respond  to  his  judgment.     Neither 


SECT.  I.  c]  LEON   V.   GALCERAX.  671 

the  writ  of  sequestration  nor  the  process  of  attachment  is  a  proceed- 
ing in  rem,  as  known  and  practised  in  the  admiralty,  nor  do  they  bear 
any  analogy  whatever  to  such  a  proceeding,  as  the  suit  in  all  such 
cases  is  a  suit  against  the  owner  of  the  property  and  not  against  tiie 
property  as  an  offending  thing,  as  in  case  where  the  libel  is  in  rent  in 
the  Admiralty  Court  to  enforce  a  maritime  lien  in  the  property. 

Due  notice  was  given  of  the  suit  to  the  defendant  in  each  case,  and 
he  appeared  and  made  defence.  Pending  the  suits  the  schooner, 
which  had  previously  been  seized  by  the  sheriff  under  the  writ 
or  writs  of  sequestration,  was  released  on  motion  of  the  defendant 
in  those  suits  and  was  delivered  into  his  possession,  he,  the  defend- 
ant, giving  a  bond  to  the  sheriff,  with  surety  conditioned  to  the  effect 
that  he  would  not  send  the  property  out  of  the  jurisdiction  of  the 
court  nor  make  any  improper  use  of  it,  and  that  he  would  faithfully 
present  the  same  in  case  such  should  be  the  decree  of  the  court, 
or  that  he  would  satisfy  such  judgment  as  should  be  recovered  in 
the  suit. 

Judgment  was  recovered  by  the  plaintiff  in  each  case  against  the 
owner  of  the  schooner,  and  executions  were  issued  on  the  respective 
judginents,  and  the  same  were  placed  in  the  hands  of  the  sheriff. 
Unable  to  find  any  property  of  the  debtor  or  to  make  the  money  the 
sheriff  returned  the  execution  unsatisfied,  and  the  property  bonded 
Avas  duly  demanded  both  of  the  principal  obligor  and  of  the  present 
plaintiff  in  error,  who  was  the  surety  in  each  of  the  forthcoming 
bonds. 

Given,  as  the  bonds  were,  on  the  release  of  the  schooner,  they  be- 
came the  substitute  for  the  property,  and  the  obligors  refusing  to 
return  the  same  or  to  satisfy  the  judgments,  the  respective  judgment 
creditors  instituted  suits  against  the  surety  in  those  bonds.  Service 
having  been  duly  made,  the  defendant  appeared  and  filed  an  excep- 
tion to  the  jurisdiction  of  the  court  in  each  case,  upon  the  grouiul 
that  the  cause  of  action  was  a  matter  exclusively  cognizable  in  the 
District  Courts  of  the  United  States  ;  but  the  court  overruled  tlie 
exception  and  gave  judgment  for  the  plaintiff,  whereupon  the  de- 
fendant sued  out  a  writ  of  error  in  each  case  and  removed  the  same 
into  this  court. 

Briefly  stated,  the  defence  in  the  court  below  was  that  the  action 
was  founded  on  a  bond  given  for  the  sale  of  the  schooner  seized 
under  admiralty  process  in  a  proceeding  in  rem^  over  which  the  State 
court  had  no  jurisdiction  ratione  materice,  "  and  that  the  bond  was 
taken  coram  non  jucUce  and  is  void."  Enough  has  already  been  re- 
marked to  show  that  the  theory  of  fact  assumed  in  the  exception  is 
not  correct,  as  the  respectiv^e  suits  instituted  by  the  mariners  were 
suits  in  iH'.rsouarn  against  the  owner  of  the  schooner  and  not  suits  in 
rem  against  the  vessel,  as  assumed  in  the  exception.  Were  the  fact 
as  supposed,  the  conclusion  assumed  would  follow,  as  it  is  well- 
settled   law   that   common-law   remedies   are    not   appropriate    noi 


672  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

competent  to  euforce  a  maritime  lien  by  a  proceeding  in  rem,  and 
consequently  that  the  jurisdiction  conferred  upon  the  District  Courts, 
so  far  as  respects  that  mode  of  proceeding,  is  exclusive. 

State  legislatures  have  no  authority  to  create  a  maritime  lien,  nor 
can  they  confer  any  jurisdiction  upon  a  State  court  to  enforce  such  a 
lieu  by  a  suit  or  proceeding  hi  rem,  as  practised  in  the  admiralty 
courts,  but  whenever  a  maritime  lien  arises  the  injured  party  may 
pursue  his  remedy  by  a  suit  in  personam  or  by  a  proceeding  in  rem  at 
his  election.  Such  a  party  may  proceed  in  rem  in  the  admiralty,  and 
if  he  elects  to  pursue  his  remedy  in  that  mode  he  cannot  proceed  in 
any  other  form,  as  the  jurisdiction  of  the  admiraltj^  courts  is  ex- 
clusive in  respect  to  that  mode  of  proceeding ;  but  such  a  party  is 
not  restricted  to  that  mode  of  proceeding,  even  in  the  Admiralty 
Court,  as  he  may  waive  his  lien  and  proceed  in  personam  against  the 
owner  or  master  of  the  vessel  in  the  same  jurisdiction,  nor  is  he 
compelled  to  proceed  in  the  admiralty  at  all,  as  he  may  resort  to  his 
common-law  remedy  in  the  State  courts,  or  in  the  Circuit  Court,  if 
lie  and  his  debtor  are  citizens  of  different  States. 

Suitors,  by  virtue  of  the  saving  clause  in  the  ninth  section  of  the 
Judiciary  Act  conferring  jurisdiction  in  admiralty  upon  the  District 
Courts,  have  the  right  of  a  commou-law  remedy  in  all  cases  "  where 
the  common  law  is  competent  to  give  it,"  and  the  common  law  is  as 
competent  as  the  admiralty  to  give  a  remedy  in  all  cases  where  the 
suit  is  in  personam  against  the  owner  of  the  property. 

Attempts  have  been  made  to  show  that  the  opinion  of  the  court  in 
the  case  of  The  Moses  Taylor,  4  Wall.  411,  and  the  opinion  of  the 
court  in  the  case  of  The  Hine  v.  Trevor,  4  Wall.  555,  are  inconsistent 
■with  the  views  here  expressed,  that  the  court  in  those  cases  do  not 
admit  that  a  party  in  such  a  case  can  ever  have  a  remedy  in  a  State 
court;  but  it  is  clear  that  every  such  suggestion  is  without  foundation, 
as  plainly  appears  from  the  brief  explanations  given  in  each  case  by 
the  justice  who  delivered  the  opinion  of  the  court.  Express  refer- 
ence is  made  in  each  of  those  cases  to  the  clause  in  the  ninth  section 
of  the  Judiciary  Act  which  gives  to  suitors  the  right  of  a  common-law 
remedy  where  the  common  law  is  competent  to  give  it,  and  there  is 
nothing  in  either  opinion,  when  the  language  employed  is  properly 
applied  to  the  subject-matter  then  under  consideration,  in  the  slight- 
est degree  inconsistent  with  the  more  elaborate  exposition  of  the 
clause  subsequently  given  in  the  opinion  of  the  court  in  the  case  of 
The  Belfast,  7  Wall.  642,  in  which  all  the  members  of  the  court  as 
then  constituted  concurred.  Those  explanations  are  a  part  of  the 
respective  opinions,  and  they  expressly  recognize  the  right  of  the 
suitor  to  his  common-law  action  and  remedy  by  attachment  as  pro- 
vided in  the  saving  clause  of  the  ninth  section  of  the  Judiciary  Act. 

Common-law  remedies  are  not  competent  to  enforce  a  maritime 
lien  by  a  proceeding  in  rem,  and  consequently  the  original  jurisdic- 
tion to  enforce  such  a  lien  by  that  mode  of  proceeding  is  exclusive  in 


SECT.  I.  J.  1.]  STAiNLEY    V.   SCHWALBY.  673 

the  District  Courts,  which  is  precisely  what  was  decided  in  each  of 
the  three  cases  to  which  reference  is  made.  Authority,  therefore, 
does  not  exist  in  a  State  court  to  hear  and  determine  a  suit  in  rem, 
founded  upon  a  maritime  contract  in  which  a  maritime  lien  arises, 
for  the  purpose  of  enforcing  such  a  lien.  Jurisdiction  in  such  cases 
is  exclusively  in  the  District  Courts,  subject  to  appeal  as  provided  in 
the  acts  of  Congress ;  but  such  a  lien  does  not  arise  in  a  contract  for 
materials  and  supplies  furnished  to  a  vessel  in  her  home  port,  and  in 
respect  to  such  contracts  it  is  competent  for  the  States  to  create  such 
liens  as  their  legislatures  may  deem  just  and  expedient,  not  amount- 
ing to  a  regulation  of  commerce,  and  to  enact  reasonable  rules  and 
regulations  prescribing  the  mode  of  their  enforcement.  The  Belfast, 
7  Wall.  643;  The  St.  Lawrence,  1  Black,  529. 

Even  where  a  maritime  lien  arises  the  injured  part}',  if  he  sees  fit, 
may  waive  his  lien  and  proceed  by  a  libel  in  personam  in  the  ad- 
miralty, or  he  may  elect  not  to  go  into  admiralty  at  all,  and  may 
resort  to  his  common-law  remedy,  as  the  plaintiffs  in  these  cases  did, 
in  the  subordinate  court.  They  brought  their  suits  in  the  State  court 
against  the  owner  of  the  schooner,  as  they  had  a  right  to  do  ;  and  hav- 
ing obtained  judgments  against  the  defendant  they  might  levy  their 
executions  upon  any  property  belonging  to  him,  not  exempted  from 
attachment  and  execution,  which  was  situated  in  that  jurisdiction. 

Undoubtedly  they  might  also  resort  to  the  bond  given  when  the 
schooner  was  released,  but  they  were  not  compelled  to  do  so  if  the 
sheriff  could  find  other  property  belonging  to  the  debtor.  By  the 
return  of  the  sheriff  it  appears  that  other  property  to  satisfy  the  ex- 
ecutions could  not  be  found,  and  under  those  circumstances  they 
brought  these  suits  against  the  surety  in  those  bonds,  as  they  clearly 
had  a  right  to  do,  whether  the  question  is  tested  by  the  laws  of  Con- 
gress or  the  decisions  of  this  court.  Judgment  affirmed. 


d.    Controversies  to  ivldch  the  United  States  or  a  State  is  a  parti/. 
1.  Suits  by  or  against  the  United  States. 

STANLEY  V.   SCHWALBY. 

162  United  States,  255.     1890. 

This  was  an  action  of  trespass  to  try  title,  brought  in  the  District 
Court  of  Bexar  County  in  the  State  of  Texas,  by  Mary  U.  Schwalby, 
joining  her  husband,  J.  A.  Schwalby,  against  David  S.  Stanley, 
William  R.  Gibson,  Samuel  T.  Gushing,  and  Joseph  C.  Bailey,  to  re- 
cover a  parcel  of  land  in  the  city  of  San  Antonio. 

43 


674  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

[Plaintiff  claimed  to  be  owner  in  fee  of  an  undivided  one-third  part 
of  the  land,  and  to  be  entitled  to  possession  of  the  whole.  The  indi- 
vidual defendants  set  up  title  to  the  land  in  the  United  States,  and 
lawful  possession  thereof  as  officers  and  agents  of  the  United  States. 
At  a  subsequent  stage  of  the  case  the  United  States  District  Attorney, 
by  the  direction  of  the,  Attorne3'-General,  appeared  for  the  United 
States,  In  the  Texas  Court  of  Civil  Appeal,  to  which  the  case  was 
eventually  taken,  a  judgment  was  rendered  for  plaintiff  against  the 
individual  defendants,  for  possession  jointly  with  defendants  and 
for  damages,  and  against  the  United  States  for  costs.  The  indi- 
vidual defendants  and  the  United  States  then  sued  out  a  writ  of 
error  to  this  court,  and  reversal  was  asked  by  the  United  States 
upon  the  ground,  among  others,  that  the  suit  is  against  the  United 
States  and  the  property  of  the  United  States.] 

Mr.  Justice  Gkay,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

It  is  a  fundamental  principle  of  public  law,  affirmed  by  a  long  series 
of  decisions  of  this  court,  and  clearly  recognized  in  its  former  opinion 
in  this  case,  that  no  suit  can  be  maintained  against  the  United  States 
or  against  their  property,  in  any  court,  without  express  authority  of 
Congress.  147  U.  S.  512.  See  also  Belknap  v.  Schild,  161  U.  S.  10. 
The  United  States,  by  various  acts  of  Congress,  have  consented  to  be 
sued  in  their  own  courts  in  certain  classes  of  cases  ;  but  they  have 
never  consented  to  be  sued  in  the  courts  of  a  State  in  any  case. 
Neither  the  Secretary  of  War  nor  the  Attorney-General,  nor  any  sub- 
ordinate of  either,  has  been  authorized  to  waive  the  exemption  of  the 
United  States  from  judicial  process,  or  to  submit  the  United  States 
or  their  property,  to  the  jurisdiction  of  the  court  in  a  suit  brought 
against  their  officers.  Case  v.  Terrell,  11  Wall.  199,  202;  Carr  v. 
United  States,  98  U  S.  433,  438;  United  States  v.  Lee,  106  U.  S.  196, 
205  [720J.  The  original  instructions  from  the  Attorney-General  to 
the  District  Attorney,  having  now  been  filed  and  made  part  of  the 
record,  are  shown  to  have  been  (as  they  were  at  the  former  stage  of 
this  case  supposed  by  the  Supreme  Court  of  Texas  and  by  this  court 
to  be)  no  more  than  "to  appearand  defend  the  interests  of  the  United 
States  involved  "  in  this  suit,  that  is  to  say,  by  appearing  and  taking 
part  in  the  defence  of  the  officers,  and,  if  deemed  advisable,  by  bring- 
ing the  rights  of  the  United  States  more  distinctly  to  the  notice  of 
the  court  by  formal  suggestion  in  their  name.  85  Texas,  354;  147 
U.  S.  513.  As  the  present  Chief  Justice  then  remarked,  repeating 
the  words  of  Chief  Justice  Marshall  in  the  leading  case  of  The 
Exchange,  7  Cranch,  116,  147  :  "  There  seems  to  be  a  necessity  for 
admitting  that  the  fact  might  be  disclosed  to  the  court  by  the  sug- 
gestion of  the  attorney  for  the  United  States."  The  answer  actually 
filed  by  the  District  Attorney,  if  treated  as  undertaking  to  make  the 
United  States  a  party  defendant  in  the  cause,  and  liable  to  have 


SECT.  I.  d.  1.]  STANLEY   V.    SCHWALBT.  675 

judgment  rendered  against  them,  was  in  excess  of  the  instructions  of 
the  Attorney-General,  and  of  any  power  vested  by  law  in  him  or  in 
the  District  Attorney,  and  could  not  constitute  a  voluntary  submis- 
sion by  the  United  States  to  the  jurisdiction  of  the  court. 

The  judgments  of  the  courts  of  the  State  of  Texas  appear  to  have 
been  largely  based  on  United  States  v.  Lee,  above  cited.  In  that 
case,  an  action  of  ejectment  was  brought  in  the  Circuit  Court  of  the 
United  States  against  officers  occupying  in  behalf  of  the  Uuited 
States  lands  used  for  a  military  station  and  for  a  national  cemetery. 
The  Attorney-General  filed  a  suggestion  of  these  facts,  and  insisted 
that  the  court  had  no  jurisdiction.  The  plaintiffs  produced  sufficient 
evidence  of  their  title  and  possession ;  and  the  United  States  proved 
no  valid  title.  This  court  held  that  the  officers  were  trespassers,  and 
liable  to  the  action  ;  and  therefore  affirmed  the  judgment  below, 
which,  as  appears  by  the  record  of  that  case,  was  simply  a  judgment 
that  the  plaintiffs  recover  against  the  individual  defendants  the  pos- 
session of  the  lands  described,  and  costs.  And  this  court  distinctly- 
recognized  that,  if  the  title  of  the  United  States  were  good,  it  would 
be  a  justification  of  the  defendants  ;  that  the  United  States  could 
not  be  sued  directly  by  original  process  as  a  defendant,  except  by 
virtue  of  an  express  act  of  Congress ;  and  that  the  United  States 
would  not  be  bound  or  concluded  by  the  judgment  against  their 
officers.     106  U.  S.  199,  206,  222. 

In  an  action  of  trespass  to  try  title,  under  the  laws  of  Texas,  a 
judgment  for  the  plaintiff  is  not  restricted  to  the  possession,  but  may 
be  (as  it  was  in  this  case)  for  title  also.  By  section  4784  of  the  Re- 
vised Statutes  of  the  State  "the  method  of  trying  title  to  lands, 
tenements,  or  other  real  property  shall  be  by  action  of  trespass  to 
try  title."  By  section  4808,  "  upon  the  finding  of  the  jury,  or  of  the 
court  where  the  case  is  tried  by  the  court,  in  favor  of  the  plaintiff 
for  the  whole  or  any  part  of  the  premises  in  controversy,  the  judg- 
ment shall  be  that  the  plaintiff  recover  of  the  defendant  the  title, 
or  possession,  or  both,  as  the  case  may  be,  of  such  premises,  describ- 
ing them,  and  where  he  recovers  the  possession,  that  he  have  his  writ 
of  possession."  By  section  4811,  the  judgment  "shall  be  conclusive, 
as  to  the  title  or  right  of  possession  established  in  such  action,  upon 
the  party  against  whom  it  is  recovered,  and  upon  all  persons  claim- 
ing from,  through,  or  under  such  party,  by  title  arising  after  the 
commencement  of  such  action."  And  it  has  been  declared  by  the 
Supreme  Court  of  the  State  that,  by  the  statutory  action  of  trespass 
to  try  title,  "  it  was  unquestionably  the  legislative  intention  to  pro- 
vide a  simple  and  effectual  remedy  for  determining  every  character 
of  conflicting  titles  and  disputed  claims  to  land,  irrespective  of  the 
fact  of  its  actual  occupancy  or  mere  pedal  possession  ;  "  and  "  a 
method  of  vesting  and  divesting  the  title  to  real  estate,  in  all  cases 
where  the  right  or  title,  or  interest  and  possession,  of  land  may  be 
involved,"  by  partition  or  otherwise.     Bridges  v.  Cundiff,  45  Texas, 


676  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

440 ;  Titus  v.  Johuson,  50  Texas,  224,  238 ;  Hardy  v.  Beaty,  84 
Texas,  562,  568. 

In  the  case  at  bar,  the  United  States,  and  their  officers  in  their 
behalf,  claimed  title  in  the  whole  land.  The  plaintiffs  claimed  title 
in  one  undivided  third  part  only.  The  final  decision  below  was 
against  the  claim  of  the  intervenor  for  another  third  part  of  the  land. 
It  was  thus  adjudged  that  the  United  States  had  the  title  in  that  part, 
if  not  also  in  the  remaining  third,  to  which  no  adverse  claim  was  made. 
Such  being  the  state  of  the  case,  the  final  judgment  in  favor  of  the 
plaintiffs  for  the  third  part  awarded  to  them,  and  for  possession  of 
the  whole  jointly  with  the  individual  defendants,  was  directly  against 
the  United  States  and  against  their  property,  and  not  merely  against 
their  officers. 

The  judgment  for  costs  against  the  United  States  was  clearly  erro- 
neous, in  any  aspect  of  the  case.  United  States  v.  Hooe,  3  Cranch,  73, 
91,92;  United  States  v.  Barker,  2  Wheat.  395;  The  Antelope,  12 
Wheat.  546,  550;  United  States  v.  Ringgold,  8  Pet.  150,  163;  United 
States  V.  Boyd,  5  How.  29,  51. 


UNITED   STATES   v.   TEXAS. 
143  United  States,  621.     1892. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  original  bill  in  this  court  pursuant  to 
the  act  of  May  2,  1890,  providing  a  temporary  government  for  the 
Territory  of  Oklahoma.  The  25th  section  recites  the  existence  of  a 
controversy  between  the  United  States  and  the  State  of  Texas  as  to 
the  ownership  of  what  is  designated  on  the  map  of  Texas  as  "Greer 
County,"  and  provides  that  the  act  shall  not  be  construed  to  apply  to 
that  county  until  the  title  to  the  same  has  been  adjudicated  and  de- 
termined to  be  in  the  United  States.  In  order  that  there  might  be 
a  speedy  and  final  judicial  determination  of  this  controversy  the 
Attorney-General  of  the  United  States  was  authorized  and  directed 
to  commence  and  prosecute  on  behalf  of  the  United  States  a  proper 
suit  in  equity  in  this  court  against  the  State  of  Texas,  setting  forth 
the  title  of  the  United  States  to  the  country  lying  between  the  Xorth 
and  South  Forks  of  the  Red  River  where  the  Indian  Territory  and 
the  State  of  Texas  adjoin,  east  of  the  one  hundredth  degree  of  longi- 
tude, and  claimed  by  the  State  of  Texas  as  within  its  boundary.  26 
Stat.  81,  92,  c.  182,  §  25. 

The  State  of  Texas  appeared  and  filed  a  demurrer,  and,  also,  an 
answer  denying  the  material  allegations  of   the  bill.     The  case  is 


SECT.  I.  d.  1.]  UNITED   STATES   V.   TEXAS.  677 

now  before  the  court  only  upon  the  demurrer,  the  principal  grounds 
of  which  are:  That  the  question  presented  is  political  in  its  nature 
and  character,  and  not  susceptible  of  judicial  determination  by  this 
court  in  the  exercise  of  its  jurisdiction  as  conferred  by  the  Constitu- 
tion and  laws  of  tlie  United  States;  that  it  is  not  competent  for  the 
general  government  to  bring  suit  against  a  State  of  the  Union  in 
one  of  its  own  courts,  especially  when  the  right  to  be  maintained 
is  mutually  asserted  by  the  United  States  and  the  State,  namely, 
the  ownership  of  certain  designated  territory;  and  that  the  plain- 
tiff's cause  of  action,  being  a  suit  to  recover  real  property,  is  legal 
and  not  equitable,  and,  consequently,  so  much  of  the  act  of  May  2, 
1890,  as  authorizes  and  directs  the  prosecution  of  a  suit  in  equity  to 
determine  the  rights  of  the  United  States  to  the  territory  in  question 
is  unconstitutional  and  void. 

The  necessity  of  the  present  suit  as  a  measure  of  peace  between 
the  general  government  and  the  State  of  Texas,  and  the  nature  and 
importance  of  the  questions  raised  by  the  demurrer,  will  appear  from 
a  statement  of  the  principal  facts  disclosed  by  the  bill  and  amended 
bill. 

[The  jurisdiction  of  Texas  over  the  territory  in  question  is  dis- 
cussed with  reference  to  treaties  with  Spain  and  Mexico  and  negoti- 
ations with  Texas  touching  its  boundaries.] 

The  relief  asked  is  a  decree  determining  the  true  line  between  the 
United  States  and  the  State  of  Texas,  and  whether  the  land  consti- 
tuting what  is  called  "  Greer  County  "  is  within  the  boundary  and 
juris  liction  of  the  United  States  or  of  the  State  of  Texas.  The 
government  prays  that  its  rights,  as  asserted  in  the  bill,  be  estab- 
lished, and  that  it  have  such  other  relief  as  the  nature  of  the  case 
may  require. 

In  support  of  the  contention  that  the  ascertainment  of  the  boun- 
dary between  a  Territory  of  the  United  States  and  one  of  the 
States  of  the  Union  is  political  in  its  nature  and  character,  and  not 
susceptible  of  judicial  determination,  the  defendant  cites  Foster  v. 
Neilson,  2  Pet.  253,  307,  309;  Cherokee  Nation  v.  Georgia,  5  Pet. 
1,  21;  United  States  v.  Arredondo,  6  Pet.  G91,  711;  and  Garcia  v. 
Lee,  12  Pet.  511,  517. 

In  Poster  v.  Neilson,  which  was  an  action  to  recover  certain  lands 
in  Louisiana,  the  controlling  question  was  as  to  whom  the  country 
between  the  Iberville  and  the  Perdido  rightfully  belonged  at  the 
time  the  title  of  the  plaintiff  in  that  case  was  acquired.  The  L^nited 
States,  the  court  said,  had  perseveringly  insistt-d  that  by  the  treaty 
of  St.  Ildefonso  made  October  1,  1800,  Spain  ceded  the  disputed 
territory  as  part  of  Louisiana  to  France,  and  that  France  by  the 
treaty  of  Paris  of  1803  ceded  it  to  the  United  States.  Spain  insisted 
that  the  cession  to  France  comprehended  only  the  territory  whieli  at 
that  time  was  denominated  "Louisiana."  After  examining  various 
articles   of  the   treaty   of   St.   Ildefonso,    Chief   Justice    Marshall, 


()78  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

speaking  for  the  court,  said :  "  In  a  controversy  between  two  nations 
concerning  national  boundary,  it  is  scarcely  possible  that  the  courts 
of  either  should  refuse  to  abide  by  the  measures  adopted  by  its  own 
government.  There  being  no  common  tribunal  to  decide  between 
them,  each  determines  for  itself  on  its  own  rights,  and  if  they  cannot 
adjust  their  differences  peaceably,  the  right  remains  with  the 
strongest.  The  judiciary  is  not  that  department  of  the  government 
to  which  the  assertion  of  its  interests  against  foreign  powers  is 
confided;  and  its  duty  commonly  is  to  decide  upon  individual  rights, 
according  to  those  principles  which  the  political  departments  of  the 
nation  have  established.  If  the  course  of  the  nation  has  been  a 
plain  one,  its  courts  would  hesitate  to  pronounce  it  erroneous." 
Again :  "  After  these  acts  of  sovereign  power  over  the  territory  in 
dispute,  asserting  the  American  construction  of  the  treaty  by  which 
the  government  claims  it,  to  maintain  the  opposite  construction  in 
its  own  courts  would  certainly  be  an  anomaly  in  the  history  and 
practice  of  nations.  If  those  departments  which  are  intrusted  with 
the  foreign  intercourse  of  the  nation,  which  assert  and  maintain  its' 
interests  against  foreign  powers,  have  unequivocally  asserted  its 
rights  of  dominion  over  a  country  of  which  it  is  in  possession,  and 
which  it  claims  under  a  treaty ;  if  the  legislature  has  acted  on  the 
construction  thus  asserted,  it  is  not  in  its  own  courts  that  this 
construction  is  to  be  denied.  A  question  like  this  respecting  the 
boundaries  of  nations  is,  as  has  been  truly  said,  more  a  political 
than  a  legal  question;  and  in  its  discussion  the  courts  of  every 
country  must  respect  the  pronounced  will  of  the  legislature." 

Jn  United  States  v.  Arredondo  the  court,  referring  to  Foster  v. 
Neilson,  said:  "This  court  did  not  deem  the  settlement  of  bounda- 
ries a  judicial  but  a  political  question  —  that  it  was  not  its  duty  to 
lead,  but  to  follow  the  action  of  the  other  departments  of  the  govern- 
ment." The  same  principles  were  recognized  in  Cherokee  Nation  u. 
Georgia  and  Garcia  v.  Lee. 

These  authorities  do  not  control  the  present  case.  They  relate  to 
questions  of  boundary  between  independent  nations,  and  have  no 
application  to  a  question  of  that  character  arising  between  the 
general  government  and  one  of  the  States  composing  the  Union,  or 
between  two  States  of  the  Union.  By  the  Articles  of  Confedera- 
tion, Congress  was  made  "the  last  resort  on  appeal  in  all  disputes 
and  differences  "  then  subsisting  or  which  thereafter  might  arise 
"between  two  or  more  States  concerning  boundary,  jurisdiction,  or 
any  other  cause  whatever;"  the  authority  so  conferred  to  be  exer- 
cised by  a  special  tribunal  to  be  organized  in  the  mode  prescribed  in 
those  Articles,  and  its  judgment  to  be  final  and  conclusive.  Art  9. 
At  the  time  of  the  adoption  of  the  Constitution  there  existed,  as 
this  court  said  in  Rhode  Island  v.  Massachusetts,  12  Pet.  657,  723, 
724,  controversies  between  eleven  States  in  respect  to  boundaries 
which  had  continued  from  the  first  settlement  of  the  colonies.     The 


M'\ 


SECT.  I.  d.  1.]  UNITED    STATES   V.    TEXAS.  679 

necessity  for  the  creation  of  some  tribunal  for  the  settlement  of  these 
and  like  controversies  that  might  arise  under  the  new  government 
to  be  formed  must  therefore  have  been  perceived  by  the  framers  of 
the  Constitution,  and  consequently  among  the  controversies  to 
which  the  judicial  power  of  the  United  States  was  extended  by  the 
Constitution  we  find  those  between  two  or  more  States.  And  that  a 
controversy  between  two  or  more  States,  in  respect  to  boundary,  is 
one  to  which,  under  the  Constitution,  such  judicial  power  extends, 
is  no  longer  an  open  question  in  this  court.  The  cases  of  Rhode 
Island  V.  Massachusetts,  12  Pet.  657;  New  Jersey  v.  New  York, 
5  Pet.  284,  290;  Missouri  v.  Iowa,  7  How.  660;  Florida  xk  Georgia, 
17  How.  478;  Alabama  v.  Georgia,  23  How.  505;  Virginia  v.  West 
Virginia,  11  Wall.  39,  55;  Missouri  v.  Kentucky,  11  Wall.  395;  In- 
diana y.  Kentucky,  136  U.  S.  479;  and  Nebraska  v.  Iowa,  [143  U.  S. 
359],  were  all  original  suits,  in  this  court,  for  the  judicial  determi- 
nation of  disputed  boundary  lines  between  States.  In  New  Jersey 
V.  New  York,  5  Pet.  284,  290,  Chief  Justice  Marshall  said:  "It  has 
then  been  settled  by  our  predecessors,  on  great  deliberation,  that 
this  court  may  exercise  its  original  jurisdiction  in  suits  against  a 
State,  under  the  authority  conferred  by  the  Constitution  and  exist- 
ing acts  of  Congress."  And  in  Virginia  v.  West  Virginia  it  was 
said  by  Mr.  Justice  Miller  to  be  the  established  doctrine  of  this 
court  "that  it  has  jurisdiction  of  questions  of  boundary  between 
two  States  of  this  Union,  and  that  this  jurisdiction  is  not  defeated 
because  in  deciding  that  question  it  becomes  necessary  to  examine 
into  and  construe  compacts  or  agreements  between  those  States,  or 
because  the  decree  which  the  court  may  render,  affects  the  territorial 
limits  of  the  political  jurisdiction  and  sovereignty  of  the  States 
which  are  parties  to  the  proceeding."  So,  in  Wisconsin  v.  Pelican  Ins. 
Co.,  127  U.  S.  265,  287,  288  [692] :  «  By  the  Constitution,  therefore, 
this  court  has  original  jurisdiction  of  suits  brought  by  a  State  against 
citizens  of  another  State,  as  well  as  of  controversies  between  two 
States.  .  o  .  As  to 'controversies  between  two  or  more  States.'  The 
most  numerous  class  of  which  this  court  has  entertained  jurisdiction 
is  that  of  controversies  between  two  States  as  to  the  boundaries  of 
their  territory,  such  as  were  determined  before  the  Revolution  by 
the  King  in  Council,  and  under  the  Articles  of  Confederation  (while 
there  was  no  national  judiciary)  by  committees  or  commissioners 
appointedby  Congress." 

In  view  of  these  cases,  it  cannot  with  propriety  be  said  that  a 
question  of  boundary  between  a  Territory  of  the  United  States  and 
one  of  the  States  of  the  Union  is  of  a  political  nature,  and  not 
susceptible  of  judicial  determination  by  a  court  having  jurisdic- 
tion of  such  a  controversy.  The  important  question  therefore,  is, 
whether  this  court  can,  under  the  Constitution,  take  cognizance  of 
an  original  suit  brought  by  the  United  States  agaijist  a  State  to 
determine   the   boundary  between  one  of  the  Territories  and  such 


680  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

State.  Texas  insists  that  no  such  jurisdiction  has  been  conferred 
upon  this  court,  and  tliat  the  only  mode  in  which  the  present  dispute 
can  be  peaceably  settled  is  by  agreement,  in  some  form,  between  the 
United  States  and  that  State.  Of  course,  if  no  such  agreement  can 
be  reached  —  and  it  seems  that  one  is  not  probable  —  and  if  neither 
party  will  surrender  its  claim  of  authority  and  jurisdiction  over  the 
disputed  territory,  the  result,  according  to  the  defendant's  theory  of 
the  Constitution,  must  be  that  the  United  States,  in  order  to  effect  a 
settlement  of  this  vexed  question  of  boundary,  must  bring  its  suit 
in  one  of  the  courts  of  Texas,  —  that  State  consenting  that  its  courts 
may  be  open  for  the  assertion  of  claims  against  it  by  the  United 
States,  —  or  that,  in  the  end,  there  must  be  a  trial  of  physical 
strength  between  the  government  of  the  Union  and  Texas.  The 
first  alternative  is  unwarranted  both  by  the  letter  and  spirit  of  the 
Constitution.  Mr.  Justice  Story  has  well  said:  "It  scarcely  seems 
possible  to  raise  a  reasonable  doubt  as  to  the  propriety  of  giving  to 
the  national  courts  jurisdiction  of  cases  in  which  the  United  States 
are  a  party.  It  would  be  a  perfect  novelty  in  the  history  of  national 
jurisprudence,  as  well  as  of  public  law,  that  a  sovereign  had  no 
authority  to  sue  in  his  own  courts.  Unless  this  power  were  given 
to  the  United  States,  the  enforcement  of  all  their  rights,  powers, 
contracts,  and  privileges  in  their  sovereign  capacitj^  would  be  at  the 
mercy  of  the  States.  They  must  be  enforced,  if  at  all,  in  the  State 
tribunals."  Story,  Const.  §  1674.  The  second  alternative,  above 
mentioned,  has  no  place  in  our  constitutional  system,  and  cannot  be 
contemplated  by  any  patriot  except  with  feelings  of  deep  concern. 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution 
did  provide,  by  that  instrument,  for  the  judicial  determination  of 
all  cases  in  law  and  equity  between  two  or  more  States,  including 
those  involving  questions  of  boundary.  Did  they  omit  to  provide 
for  the  judicial  determination  of  controversies  arising  between  the 
United  States  and  one  or  more  of  the  States  of  the  Union  ?  This 
question  is  in  effect  answered  by  United  States  v.  North  Carolina, 
136  U.  S.  211.  That  was  an  action  of  debt  brought  in  this  court  by 
the  United  States  against  the  State  of  North  Carolina,  upon  certain 
bonds  issued  by  that  State.  The  State  appeared,  the  case  was  deter- 
mined here  upon  its  merits,  and  judgment  was  rendered  for  the  State. 
It  is  true  that  no  question  was  made  as  to  the  jurisdiction  of  this 
court,  and  nothing  was  therefore  said  in  the  opinion  upon  that  sub- 
ject. But  it  did  not  escape  the  attention  of  the  court,  and  the  judg- 
ment would  not  have  been  rendered  except  upon  the  theory  that  this 
court  has  original  jurisdiction  of  a  suit  by  the  United  States  against 
a  State.  As,  however,  the  question  of  jurisdiction  is  vital  in  this 
case,  and  is  distinctly  raised,  it  is  proper  to  consider  it  upon  its 
merits. 

The  Constitution  extends  the  judicial  power  of  the  United  States 
"to  all  cases,  in  law  and  equity,  arising  under  this  Constitution,  the 


SECT.  I.  d.  1.]  UNITED    STATES   V.    TEXAS.  681 

laws  of  the  United  States  and  treaties  made,  or  which  shall  be  made, 
under  their  authority;  to  all  cases  aifecting  ambassadors,  other 
public  ministers  and  consuls;  to  all  cases  of  admiralty  and  mari- 
time jurisdiction;  to  controversies  to  which  the  United  States  shall 
be  a  party;  to  controversies  between  two  or  more  States;  between  a 
State  and  citizens  of  another  State;  between  citizens  of  different 
States;  between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State  or  the  citizens  thereof 
and  foreign  States,  citizens  or  subjects. 

"  In  all  cases,  affecting  ambassadors  or  other  public  ministers  and 
consuls  and  those  in  which  a  State  shall  be  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  Supreme  Court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions,  and  under  such  regulations 
as  the  Congress  shall  make."  Art.  o,  §  2.  "The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to  any  suit 
in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State."     11th  Amendment. 

It  is  apparent  upon  the  face  of  these  clauses  that  in  one  class  of 
eases  the  jurisdiction  of  the  courts  of  the  Union  depends  "  on  the 
character  of  the  cause,  whoever  may  be  the  parties,"  and,  in  the 
other,  on  the  character  of  the  parties,  whatever  may  be  the  subject 
of  controversy.  Cohens  v.  Virginia,  6  Wheat.  264,  378,  393.  The 
present  suit  falls  in  each  class,  for  it  is,  plainly,  one  arising  under 
the  Constitution,  laws,  and  treaties  of  the  United  States,  and,  also, 
one  in  which  the  United  States  is  a  party.  It  is,  therefore,  one  to 
which,  by  the  express  words  of  the  Constitution,  the  judicial  power 
of  the  United  States  extends.  That  a  Circuit  Court  of  the  United 
States  has  not  jurisdiction,  under  existing  statutes,  of  a  suit  by  the 
United  States  against  a  State,  is  clear;  for  by  the  Kevised  Statutes 
it  is  declared  —  as  was  done  by  the  Judiciary  Act  of  1789  —  that 
"the  Supreme  Court  shall  have  exclusive  jurisdiction  of  all  contro- 
versies of  a  civil  nature  where  a  State  is  a  party,  except  between  a 
State  and  its  citizens,  or  between  a  State  and  citizens  of  other  States 
or  aliens,  in  which  latter  cases  it  shall  have  original,  but  not  exclu- 
sive, jurisdiction."  liev.  Stat.  §  687;  Act  of  September  24,  1789, 
c.  20,  §  13;  1  Stat.  80.  Such  exclusive  jurisdiction  was  given  to 
this  court,  because  it  best  comported  with  the  dignity  of  a  State, 
that  a  case  in  which  it  was  a  party  should  be  determined  in  the 
higliest,  rather  than  in  a  subordinate,  judicial  tribunal  of  the  nation. 
Why  then  may  not  this  court  take  original  cognizance  of  the  present 
suit  involving  a  question  of  boundary  between  a  Territory  of  the 
United  States  and  a  State  ? 

The  words,  in  the  Constitution,  "in  all  cases  ...  in  which  a 
State  shall  be  party,  the  Supreme  Court  shall  have  original  jurisdic- 
tion," necessarily   refer   to   all  cases   mentioned  in   the   preceding 


682  THE  JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

clause  in  which  a  State  may  be  made,  of  right,  a  party  defendant, 
or  in  wbich  a  State  may,  of  right,  be  a  party  pkiintiif.  It  is  ad- 
mitted that  these  words  do  not  refer  to  suits  brought  against  a  State 
by  its  own  citizens  or  by  citizens  of  other  States,  or  by  citizens  or 
subjects  of  foreign  States,  even  where  such  suits  arise  under  the 
Constitution,  laws,  and  treaties  of  the  United  States,  because  the 
judicial  power  of  the  United  States  does  not  extend  to  suits  of 
individuals  against  States.  Hans  v.  Louisiana,  134  U.  S.  1,  and 
authorities  there  cited;  North  Carolina  v.  Temple,  134  U.  S.  22,  30. 
It  is,  however,  said  that  the  words  last  quoted  refer  only  to  suits  in 
which  a  State  is  a  party,  and  in  which,  also,  the  opposite  party  is 
another  State  of  the  Union  or  a  foreign  State.  This  cannot  be 
correct,  for  it  must  be  conceded  that  a  State  can  bring  an  original 
suit  in  this  court  against  a  citizen  of  another  State.  Wisconsin  v. 
Pelican  Ins.  Co.,  127  U.  S.  205,  287.  Besides,  unless  a  State  is 
exempt  altogether  from  suit  by  the  United  States,  we  do  not  per- 
ceive upon  what  sound  rule  of  construction  suits  brought  by  the 
United  States  in  this  court  —  especially  if  they  be  suits  the  correct 
decision  of  which  depends  upon  the  Constitution,  laws,  or  treaties  of 
the  United  States  —  are  to  be  excluded  from  its  original  jurisdiction 
as  detined  in  the  Constitution.  That  instrument  extends  the  judi- 
cial power  of  the  United  States  "to  all  cases,"  in  law  and  equity, 
arising  under  the  Constitution,  laws,  and  treaties  of  the  United 
States,  and  to  controversies  in  which  the  United  States  shall  be  a 
party,  and  confers  upon  this  court  original  jurisdiction  "  in  all 
cases"  "in  which  a  State  shall  be  party,"  that  is,  in  all  cases 
mentioned  in  the  preceding  clause  in  which  a  State  may,  of  right,  be 
made  a  party  defendant,  as  well  as  in  all  cases  in  which  a  State 
may,  of  right,  institute  a  suit  in  a  court  of  the  United  States.  The 
present  case  is  of  the  former  class.  We  cannot  assume  that  the 
framers  of  the  Constitution,  while  extending  the  judicial  power  of 
the  United  States  to  controversies  between  two  or  more  States  of 
the  Union,  and  between  a  State  of  the  Union  and  foreign  States, 
intended  to  exempt  a  State  altogether  from  suit  by  the  general 
government.  They  could  not  have  overlooked  the  possibility  that 
controversies,  capable  of  judicial  solution,  might  arise  between  the 
United  States  and  some  of  the  States,  and  that  the  permanence  of 
the  Union  might  be  endangered  if  to  some  tribunal  was  not  intrusted 
the  power  to  determine  them  according  to  the  recognized  principles 
of  law.  And  to  what  tribunal  could  a  trust  so  momentous  be  more 
appropriately  committed  than  to  that  which  the  people  of  the 
United  States,  in  order  to  form  a  more  perfect  Union,  establish 
justice  and  insure  domestic  tranquillity,  have  constituted  with 
authority  to  speak  for  all  the  people  and  all  the  States,  upon  ques- 
tions before  it  to  which  the  judicial  power  of  the  nation  extends  ? 
It  would  be  difficult  to  suggest,  any  reason  why  this  court  should 
have  jurisdiction  to  determine  questions  of  boundary  between  two 


SECT.  I.  d.  1.]  UNITED   STATES    V.   TEXAS.  683 

or  more  States,  but  not  jurisdiction  of  controversies  of  like  character 
between  the  United  States  and  a  State. 

Mr.  Justice  Bradley,  speaking  for  the  court  in  Hans  v.  Louisiana, 
134  U.  S.  1,  15,  referred  to  what  had  been  said  by  certain  statesmen 
at  the  time  the  Constitution  was  under  submission  to  the  people, 
and  said:  "The  letter  is  appealed  to  now,  as  it  was  then,  as  a 
ground  for  sustaining  a  suit  brought  by  an  individual  against  a 
State.  .  .  .  The  truth  is,  that  the  cognizance  of  suits  and  actions 
unknown  to  the  law,  and  forbidden  by  the  law,  was  not  contem- 
plated by  the  Constitution  when  establishing  the  judicial  power  of 
the  United  States.  Some  things,  undoubtedly,  were  made  justiciable 
which  were  not  known  as  such  at  the  common  law;  such,  for  exam- 
ple, as  controversies  between  States  as  to  boundary  lines,  and  other 
questions  admitting  of  judicial  solution.  And  yet  the  case  of  Penn 
V.  Lord  Baltimore,  1  Ves.  Sr.  444,  shows  that  some  of  these  un- 
usual subjects  of  litigation  were  not  unknown  to  the  courts  even  in 
colonial  times;  and  several  cases  of  the  same  general  character  arose 
under  the  Articles  of  Confederation,  and  were  brought  before  the  tri- 
bunal provided  for  that  purpose  in  those  articles.  131  U.  S.,  Append. 
50.  The  establisJiment  of  this  new  branch  of  jurisdiction  seemed  to 
be  necessary  from  the  extinguishment  of  diplomatic  relations  be- 
tween the  States."  That  case,  and  others  in  this  court  relating  to 
the  suability  of  States,  proceeded  upon  the  broad  ground  that  "  it 
is  inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to  the 
suit  of  an  individual  without  its  consent." 

The  question  as  to  the  suability  of  one  government  by  another 
government  rests  upon  wholly  different  grounds.  Texas  is  not  called 
to  the  bar  of  this  court  at  the  suit  of  an  individual,  but  at  the  suit 
of  the  government  established  for  the  common  and  equal  benefit  of 
the  people  of  all  the  States.  The  submission  to  judicial  solution 
of  controversies  arising  between  these  two  governments,  "each 
sovereign,  with  respect  to  the  objects  committed  to  it,  and  neither 
sovereign  with  respect  to  the  objects  committed  to  the  other," 
McCulloch  V.  State  of  Maryland,  4  Wheat.  316,  400,  410,  but  both 
subject  to  the  supreme  law  of  the  land,  does  no  violence  to  the 
inherent  nature  of  sovereignty.  The  States  of  the  Union  have 
agreed,  in  the  Constitution,  that  the  judicial  power  of  the  United 
States  shall  extend  to  all  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States,  without  regard  to  the  character  of 
the  parties  (excluding,  of  course,  suits  against  a  State  by  its  own 
citizens  or  by  citizens  of  other  States,  or  by  citizens  or  subjects  of 
foreign  States),  and  equally  to  controversies  to  which  the  L^nited 
States  shall  be  a  party,  without  regard  to  the  subject  of  such  con- 
troversies, and  that  this  court  may  exercise  original  jurisdiction  in 
all  such  cases,  "in  which  a  State  shall  be  party,"  without  excluding 
those  in  which  the  United  States  may  be  the  opposite  party.  The 
exercise,  therefore,  by  this  court,  of  such  original  jurisdiction  in  a 


684  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

suit  brought  by  one  State  against  another  to  determine  the  boundary- 
line  between  them,  or  in  a  suit  brouglit  by  the  United  States  against 
a  State  to  determine  the  boundary  between  a  Territory  of  the  United 
States  and  that  State,  so  far  from  infringing,  in  either  case,  upon 
the  sovereignty,  is  with  the  consent  of  the  State  sued.  Such  con- 
sent was  given  by  Texas  when  admitted  into  the  Union  upon  an 
equal  footing  in  all  respects  with  the  other  States. 

We  are  of  opinion  that  this  court  has  jurisdiction  to  determine  the 
disputed  question  of  boundary  between  the  United  States  and  Texas. 

It  is  contended  that,  even  if  this  court  has  jurisdiction,  the  dis- 
pute as  to  boundary  must  be  determined  in  an  action  at  law,  and 
that  the  act  of  Congress  requiring  the  institution  of  this  suit  in 
equity  is  unconstitutional  and  void  as,  in  effect,  declaring  that  legal 
rights  shall  be  tried  and  determined  as  if  they  were  equitable  rights. 
This  is  not  a  new  question  in  this  court.  It  was  suggested  in  argu- 
ment, though  not  decided,  in  Fowler  v.  Lindsey,  3  Dall.  411,  41.3. 
Mr.  Justice  Washington,  in  that  case,  said:  "I  will  not  say  that  a 
State  could  sue  at  law  for  such  an  incorporeal  right  as  that  of  sover- 
eignty and  jurisdiction ;  but  even  if  a  court  of  law  would  not  afford 
a  remedy,  I  can  see  no  reason  why  a  remedy  should  not  be  obtained 
in  a  court  of  equity.  The  State  of  Xew  York  might,  I  think,  file  a 
bill  against  the  State  of  Connecticut,  praying  to  be  quieted  as  to  the 
boundaries  of  the  disputed  territory;  and  this  court,  in  order  to 
effectuate  justice,  might  appoint  commissioners  to  ascertain  and 
report  those  boundaries."  But  the  question  arose  directly  in  Ehode 
Island  V.  ^Massachusetts,  12  Pet.  657,  734,  which  was  a  suit  in  equity 
in  this  court  involving  the  boundary  line  between  two  States.  The 
court  said :  "  No  court  acts  differently  in  deciding  on  boundary  be- 
tween States,  than  on  lines  between  separate  tracts  of  land ;  if  there 
is  uncertainty  where  the  line  is,  if  there  is  a  confusion  of  bounda- 
ries by  the  nature  of  interlocking  grants,  the  obliteration  of  marks, 
the  intermixing  of  possession  under  different  proprietors,  the  effects 
of  accident,  fraud,  or  time  or  other  kindred  causes,  it  is  a  case 
appropriate  to  equity.  An  issue  at  law  is  directed,  a  commission  of 
boundary  awarded;  or,  if  the  court  are  satisfied  without  either,  they 
decree  what  and  where  the  boundary  of  a  farm,  a  manor,  province, 
or  State  is  and  shall  be."  When  that  case  was  before  the  court 
at  a  subsequent  term.  Chief  Justice  Taney,  after  stating  that  the 
case  was  of  peculiar  character,  involving  a  question  of  boundary  be- 
tween two  sovereign  States,  litigated  in  a  court  of  justice,  and  that 
there  were  no  precedents  as  to  forms  and  modes  of  proceedings, 
said:  "The  subject  was  however  fully  considered  at  January  term, 
1838,  when  a  motion  was  made  by  the  defendant  to  dismiss  this  bill. 
Upon  that  occasion  the  court  determined  to  frame  their  proceedings 
according  to  those  which  had  been  adopted  in  the  English  courts, 
in  cases  most  analogoiis  to  this,  where  the  boundaries  of  great  polit- 
ical bodies  had  been  brought  into  question.     And,  acting  upon  this 


SECT.  I.  d.  1.]  UNITED    STATES    V.   TEXAS.  685 

principle,  it  was  then  decided  that  the  rules  and  practice  of  the 
Court  of  Chancery  should  govern  in  conducting  this  suit  to  a  final 
issue.  The  reasoning  upon  which  that  decision  was  founded  is  fully 
stated  in  the  opinion  then  delivered;  and  upon  re-examining  the 
subject  we  are  quite  satisfied  as  to  the  correctness  of  this  decision." 
14  Pet.  210,  256.  The  above  cases,  Xew  Jersey  v.  New  York, 
Missouri  v.  Iowa,  Florida  v.  Georgia,  Alabama  v.  Georgia,  Virginia 
V.  West  Virginia,  Missouri  v.  Kentucky,  Indiana  v.  Kentuck}-,  and 
iSTebraska  v.  Iowa,  were  all  original  suits  in  equity  in  this  court, 
involving  the  boundary  of  States.  In  view  of  these  precedents,  it  is 
scarcely  necessary  for  the  court  to  examine  this  question  anew.  Of 
course,  if  a  suit  in  equity  is  appropriate  for  determining  the  boundary 
between  two  States,  there  can  be  no  objection  to  the  present  suit  as 
being  in  equity  and  not  at  law.  It  is  not  a  suit  simply  to  deter- 
mine the  legal  title  to,  and  the  ownership  of,  the  lands  constituting 
Greer  County.  It  involves  the  larger  question  of  governmental 
authority  and  jurisdiction  over  that  territory.  The  United  States, 
in  effect,  asks  the  specific  execution  of  the  terms  of  the  treaty  of 
1S19,  to  the  end  that  the  disorder  and  public  mischiefs  that  will 
ensue  from  a  continuance  of  the  present  condition  of  things  may  be 
prevented.  The  agreement,  embodied  in  the  treaty,  to  fix  the  lines 
with  precision,  and  to  place  landmarks  to  designate  the  limits  of 
the  two  contracting  nations,  could  not  well  be  enforced  by  an  action 
at  law.  The  bill  and  amended  bill  make  a  case  for  the  interposition 
of  a  court  of  equity.  Demurrer  overruled. 

Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice 
Lamar,  dissenting. 

Mr.  Justice  Lamar  and  myself  are  unable  to  concur  in  the  deci- 
sion just  announced. 

This  court  has  original  jurisdiction  of  two  classes  of  cases  only, 
those  affecting  ambassadors,  other  public  ministers  and  consuls,  and 
those  in  which  a  State  shall  be  a  party. 

The  judicial  power  extends  to  "controversies  between  two  or  more 
States ;  "  "  between  a  State  and  citizens  of  another  State ;  "  and  "  be- 
tween a  State  or  the  citizens  thereof,  and  foreign  States,  citizens  or 
subjects."  Our  original  jurisdiction,  which  depends  solely  upon  the 
character  of  the  parties,  is  confined  to  the  cases  enumerated,  in 
which  a  State  may  be  a  party,  and  this  is  not  one  of  them. 

The  judicial  power  also  extends  to  controversies  to  which  the 
United  States  shall  be  a  party,  but  such  controversies  are  not  in- 
cluded in  the  grant  of  original  jurisdiction.  To  the  controversy  here 
the  United  States  is  a  party. 

We  are  of  opinion,  therefore,  that  this  case  is  not  within  the  orig- 
inal jurisdiction  of  the  court. 


686  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI 


2.     Controversies  between  States. 

[See  United  States  v.  Texas,  sicpra,  p.  676,  where  the  questions 
involved  in  suits  between  States  relating  to  boundaries  are  sufficiently- 
discussed,  and  South  Dakota  v.  North  Carolina,  w/m,  p.  713, 
where  the  right  of  one  State  to  sue  another  for  an  indebtedness  is 
considered.] 


3.   Controversies  between  a  State  and  its  own  Citizens  or  Citizens  of 

another  State. 

AMES   V.   KANSAS. 

Ill  United  States,  449.     1884. 

[Suits  which  were  brought  by  the  State  of  Kansas  in  her  own 
courts  to  forfeit  the  charter  of  corporations  of  Kansas,  on  the  ground 
that  they  had  unlawfully  consolidated  with  the  Union  Pacific  Kail- 
road  Company  under  the  act  of  Congress  incorporating  that  company, 
were  removed  from  the  State  courts  to  the  Circuit  Court  of  the 
United  States,  but  were  by  the  latter  remanded  to  the  State  courts 
on  the  ground  that  they  were  not  removable  to  the  Federal  courts. 
This  decision  of  the  United  States  Circuit  Court  was  brought  up  for 
review  by  writ  of  error.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

That  the  records  present  cases  arising  under  the  laws  of  the  United 
States  we  do  not  doubt.  The  Attorney-General  was  instructed  by  the 
legislature  to  institute  proceedings  against  the  Kansas  Pacific  Company 
"for  an  abandonment,  relinquishment,  and  surrender  of  its  powers 
and  duties  as  a  corporation  to  the  consolidated  company,"  and  against 
the  consolidated  company,  "  for  usurping,  seizing,  holding,  possessing, 
and  using  the  francliises  and  privileges,  powers  and  immunities,  of 
the  Kansas  Pacific  Railway  Company  of  Kansas."  The  whole  pur- 
pose of  the  suits  is  to  test  the  validity  of  the  consolidation.  The 
charge  is  of  an  unlawful  and  wrongful  consolidation,  and  from  the 
beginning  to  the  end  of  the  petition  against  the  Kansas  Pacific  Com- 
pany there  is  not  an  allegation  of  default  that  does  not  grow  out  of 
this"  single  act.  It  is,  indeed,  alleged  that  the  company  has  not, 
since  the  consolidation,  made  its  proper  reports,  and  has  not  ap- 
pointed agents  on  whom  process  can  be  served,  and  has  established 
its  general  offices  out  of  the  State ;  but  no  such  averments  are  made 
as  to  the  consolidated  company,  and  it  is  apparent  that  these  specifi- 
cations are  relied  on  only  as  incidents  of  the  main  ground  of 
complaint. 


SECT.  I.  d.  3.]  AMES   V.    KANSAS.  687 

That  the  validity  of  the  consolidation,  so  far  as  the  State  is  con- 
cerned, rests  alone  on  the  authority  conferred  for  that  purpose  by 
the  acts  of  Congress  is  not  denied.  If  the  acts  of  Congress  confer 
the  authority,  the  consolidation  is  valid  ;  if  not,  it  is  invalid.  Clearly, 
therefore,  the  cases  arise  under  these  acts  of  Congress,  for,  to  use  tlie 
language  of  Chief  Justice  Marshall  in  Osborn  v.  United  States  Bank, 
9  Wheat.  825,  an  act  of  Congress  "  is  the  first  ingredient  in  the  case 
—  is  its  origin  —  is  that  from  which  every  other  part  arises."  The 
right  set  up  by  the  company,  and  by  the  directors  as  well,  will  be 
defeated  by  one  construction  of  these  acts  and  sustained  by  the 
opposite  construction.  When  this  is  so,  it  has  never  been  doubted 
that  a  case  is  presented  which  arises  under  the  laws  of  the  United 
States.  Cohens  v.  Virginia,  6  Wheat.  264,  379;  Gold  Washing  & 
Water  Company  v.  Keyes,  96  U.  S.  201  ;  Railroad  Company  v.  Mis- 
sissippi, 102  U.  S.  140. 

We  come  now  to  the  question  whether  a  suit  brought  by  a  State  in 
one  of  its  own  courts,  against  a  corporation  amenable  to  its  own  pro- 
cess, to  try  the  right  of  the  corporation  to  exercise  corporate  powers 
within  the  territorial  limits  of  the  State,  can  be  removed  to  the  Cir- 
cuit Court  of  the  United  States,  under  the  act  of  March  3d,  1875, 
c.  137,  if  the  suit  presents  a  case  arising  under  the  laws  of  the  United 
States.  The  language  of  the  act  is  "  any  suit  of  a  civil  nature  .  .  . 
brought  in  any  State  court,  .  .  .  arising  under  the  Constitution  or 
laws  of  the  United  States,"  may  be  removed  by  either  party.  This 
is  broad  enough  to  cover  such  a  case  as  this,  unless  the  language  is 
limited  in  its  operation  by  some  other  law,  or  by  the  Constitution. 
The  statute  itself  makes  no  exception  of  suits  to  which  a  State  is  a 
party. 

[Sections  1  and  2  of  article  3  of  the  Constitution  are  then  quoted.] 

Within  six  months  after  the  inauguration  of  the  government  under 
the  Constitution,  the  Judiciary  Act  of  1789,  c.  20,  1  Stat.  73,  was 
passed.  The  bill  was  drawn  by  Mr.  Ellsworth,  a  prominent  member 
of  the  convention  that  framed  the  Constitution,  who  took  an  active 
part  in  securing  its  adoption  by  the  people,  and  who  was  afterwards 
Chief  Justice  of  this  court.  Section  13  was  as  follows :  "  That  the 
Supreme  Court  shall  have  exclusive  jurisdiction  of  all  controversies 
of  a  civil  nature,  where  a  State  is  a  party,  except  between  a  State 
and  its  citizens  ;  and  except  also  between  a  State  and  citizens  of  other 
States  or  aliens,  in  which  latter  case  it  shall  have  original  but  not 
exclusive  jurisdiction.  And  shall  have  exclusively  all  such  jurisdic- 
tion of  suits  or  proceedings  against  ambassadors,  or  other  public 
ministers,  or  their  domestics,  or  domestic  servants,  as  a  court  of  law 
can  have  or  exercise  consistently  with  the  law  of  nations  ;  and  origi- 
nal, but  not  exclusive,  jurisdiction  of  all  suits  brought  by  ambassadors, 
or  other  public  ministers,  or  in  which  a  consul  or  vice-consul  shall  be 
a  party."  The  same  act  also,  by  section  9,  gave  the  District  Court 
jurisdiction  exclusively  of  the  courts  of  the  several  States  of  suits 


688  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

against  consuls  or  vice-consuls,  except  for  certain  offences,  and  by 
section  25  conferred  upon  the  Supreme  Court  appellate  jurisdiction 
for  the  review,  under  some  circumstances,  of  the  final  judgments  and 
decrees  of  the  highest  courts  of  the  States  in  certain  classes  of  suits 
arising  under  the  Constitution  and  laws  of  the  United  States. 

It  thus  appears  that  the  first  Congress,  in  which  were  many  who 
had  been  leading  and  influential  members  of  the  convention,  and  who 
were  familiar  with  the  discussions  that  preceded  the  adoption  of  tlie 
Constitution  by  the  States  and  with  the  objections  urged  against  it, 
did  not  understand  that  the  original  jurisdiction  vested  in  the 
Supreme  Court  was  necessarily  exclusive.  That  jurisdiction  included 
all  cases  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  was  a  party.  The  evident  purpose  was  to 
open  and  keep  open  the  highest  court  of  the  nation  for  the  determi- 
nation, in  the  first  instance,  of  suits  involving  a  State  or  a  diplomatic 
or  commercial  representative  of  a  foreign  government.  So  much  was 
due  to  the  rank  and  dignity  of  those  for  whom  the  provision  was 
made  ;  but  to  compel  a  State  to  resort  to  this  one  tribunal  for  the 
redress  of  all  its  grievances,  or  to  deprive  an  ambassador,  public 
minister,  or  consul  of  the  privilege  of  suing  in  any  court  he  chose 
having  jurisdiction  of  the  parties  and  the  subject-matter  of  his  action, 
would  be,  in  many  cases,  to  convert  what  was  intended  as  a  favor  into 
a  burden. 

Acting  on  this  construction  of  tlie  Constitution,  Congress  took  care 
to  provide  that  no  suit  should  be  brought  against  an  ambassador  or 
other  public  minister  except  in  the  Supreme  Court,  but  that  he  might 
sue  in  any  court  he  chose  that  was  open  to  him.     As  to  consuls,  the 
commercial  representatives  of  foreign  governments,  -the  jurisdiction 
of  the  Supreme  Court  was  made  concurrent  with  the  District  Courts, 
and  suits  of  a  civil  nature  could  be  brought  against  them  in  either 
tribunal.     With  respect  to  States,  it  was  provided  that  the  jurisdic- 
tion of  the  Supreme  Court  should  be  exclusive  in  all  controversies  of 
a  civil  nature  where  a  State  was  a  party,  except  between  a  State 
and   its   citizens,   and   except,   also,   between   a   State   and   citizens 
of  other  States  or  aliens,  in  vrhich  latter  case  its  jurisdiction  should 
be   original  but   not   exclusive.     Thus   the   original   jurisdiction   of 
the   Supreme   Court  was  made  concurrent  with  any  other  court  to 
which  jurisdiction  might  be  given  in  suits  between  a  State  and  citi- 
zens of  other  States  or  aliens.     No  jurisdiction  was  given  in  such 
cases  to  any  other  court  of  the  United  States,  and  the  practical  effect 
of  the  enactment  was,  therefore,  to  give  the  Supreme  Court  exclusive 
original  jurisdiction  in  suits  against  a  State  begun  without  its  consent, 
and  to  allow  the  State  to  sue  for  itself  in  any  tribunal  that  could 
entertain  its  case.     In  this  way  States,  ambassadors,  and  public  min- 
isters were  protected  from  the  compulsory  process  of  any  court  other 
than  one  suited  to  their  high  positions,  but  were  left  free  to  seek 
redress  for  their  own  grievances  in  any  court  that  had  the  requisite 


SECT.  I.  d.  3.]  AMES    V.   KANSAS.  689 

jurisdiction.  No  limits  were  set  on  their  powers  of  choice  in  this 
particular.  This,  of  course,  did  not  prevent  a  State  from  allowing 
itself  to  be  sued  in  its  own  courts  or  elsewhere  in  any  way  or  to  any 
extent  it  chose. 

The  Judiciary  Act  was  passed  on  the  24th  of  September,  1789,  and 
at  the  April  Term,  1793,  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Pennsylvania,  an  indictment  was  found  against 
Eavara,  a  consul  from  Genoa,  for  a  misdemeanor  in  sending  anony- 
mous and  threatening  letters  to  the  British  minister  and  others  with 
a  view  to  extort  money.  Objection  was  made  to  the  jurisdiction  for 
the  reason  that  the  exclusive  cognizance  of  the  case  belonged  to  the 
Supreme  Court  on  account  of  the  official  character  of  the  defendant. 
The  court  was  held  by  Wilson  and  Iredell,  Justices  of  the  Supreme 
Court,  and  Peters,  the  District  Judge.  Mr.  Justice  Wilson,  who  had 
been  a  member  of  the  convention  that  framed  the  Constitution,  was 
of  opinion  "  that  although  the  Constitution  vests  in  the  Supreme  Court 
an  original  jurisdiction,  iu  cases  like  the  present,  it  does  not  preclude 
the  legislature  from  exercising  the  power  of  vesting  a  concurrent 
jurisdiction  in  such  inferior  courts  as  might  by  law  be  established." 
Mr.  Justice  Iredell  thought  ''that,  for  obvious  reasons  of  public 
policy,  the  Constitution  intended  to  vest  an  exclusive  jurisdiction  iu 
the  Supreme  Court  upon  all  questions  relating  to  the  public  agents 
of  foreign  nations.  Besides,  the  context  of  the  judiciary  article,  of 
the  Constitution  seems  fairly  to  justify  the  interpretation  that  the 
word  'original'  means  exclusive  jurisdiction."  The  district  judge 
agreed  in  opinion  with  Mr.  Justice  Wilson,  and  consequently  the 
jurisdiction  was  sustained.     United  States  v.  Ravara,  2  Dall.  297. 

On  the  18th  of  February,  1793,  just  before  the  indictment  against 
Eavara  in  the  Circuit  Court,  the  case  of  Chisholm  v.  Georgia,  2  Dall. 
419,  was  decided  in  the  Supreme  Court,  holding  that  a  State  might 
be  sued  in  that  court  by  an  individual  citizen  of  another  State.  The 
judgment  was  concurred  in  by  four  of  the  five  justices  then  compos- 
ing the  court,  including  Mr.  Justice  Wilson,  but  Mr.  Justice  Iredell 
dissented.  This  decision,  as  is  well  known,  led  to  the  adoption  of 
the  eleventh  article  of  amendment  to  the  Constitution,  which  pro- 
vides that  the  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  a  suit  against  a  State  by  a  citizen  of  another 
State,  or  by  a  citizen  or  subject  of  a  foreign  State. 

It  is  a  fact  of  some  significance,  in  this  connection,  that  although 
the  decision  in  Chisholm's  case  attracted  immediate  attention  and 
caused  great  irritation  in  some  of  the  States,  that  in  Ravara's  case, 
which  in  effect  held  that  the  original  jurisdiction  of  the  Supreme 
Court  was  not  necessarily  exclusive,  seems  to  have  provoked  no 
special  comment.  The  efforts  of  the  States  before  Congress  as- 
sembled, and  of  Congress  afterwards,  were  directed  excUisively  to 
obtaining  "such  amendments  in  the  Constitution  of  the  United  States 
as  will  remove  an}'-  clause  or  articles  of  the  said  Constitution  which 

U 


690  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

can  be  construed  to  imply  or  justify  a  decision  that  a  State  is  com- 
pellable to  answer  in  any  suit  by  an  individual  or  individuals  in  any 
court  of  the  United  States."  Eesolve  of  the  Legislature  of  ]\Iass., 
Sept.  27th,  1793. 

In  Marbury  v.  Madison,  1  Cranch,  137,  decided  in  1803,  it  was  held 
that  Congress  had  no  power  to  give  the  Supreme  Court  original  juris- 
diction in  other  cases  than  those  described  in  the  Constitution,  and 
Chief  Justice  Marshall,  in  delivering  the  opinion,  used  language,  on 
page  175,  which  might,  perhaps,  imply  that  such  original  jurisdiction 
as  had  been  granted  by  the  Constitution  was  exclusive ;  but  this  was 
not  necessary  to  the  determination  of  the  cause,  and  the  Chief  Justice 
himself  afterwards,  in  Cohens  v.  Virginia,  6  Wheat.  264,  399,  referred 
to  many  expressions  in  that  opinion  as  dicta  in  Avhich  (p.  401),  "the 
court  lays  down  a  principle  which  is  generally  correct,  in  terms  much 
broader  than  the  decision,  and  not  only  much  broader  than  the 
reasoning  with  which  that  decision  is  supported,  but  in  some  in- 
stances contradictory  to  its  principle."  In  concluding  that  branch  of 
the  case  he  said,  "  The  general  expressions  in  the  case  of  Marbury  v. 
Madison  must  be  understood  with  the  limitations  which  are  given  to 
them  in  this  opinion ;  limitations  which,  in  no  degree,  affect  the  decis- 
sion  of  that  case  or  the  tenor  of  its  reasoning." 

[Bors  V.  Preston,  supra,  p.  628,  is  referred  to,  and  the  same  cases 
are  discussed  which  are  considered  in  that  case.] 

In  view  of  the  practical  construction  put  on  this  provision  of  the 
Constitution  by  Congress  at  the  very  moment  of  the  organization  of 
the  government,  and  of  the  significant  fact  that  from  1789  until  now 
no  court  of  the  United  States  has  ever  in  its  actual  adjudications 
determined  to  the  contrary,  we  are  unable  to  say  that  it  is  not  within 
the  power  of  Congress  to  grant  to  the  inferior  courts  of  the  United 
States  jurisdiction  in  cases  where  the  Supreme  Court  has  been  vested 
by  the  Constitution  with  original  jurisdiction.  It  rests  with  the 
legislative  department  of  the  government  to  say  to  what  extent  such 
grants  shall  be  made,  and  it  may  safely  be  assumed  that  nothing  will 
ever  be  done  to  encroach  upon  the  high  privileges  of  those  for  whose 
protection  the  constitutional  provision  was  intended.  At  any  rate, 
we  are  unwilling  to  say  that  the  power  to  make  the  grant  does  not 
exist. 

It  remains  to  consider  whether  jurisdiction  has  been  given  to  the 
Circuit  Courts  of  the  United  States  in  cases  of  this  kind.  As  has 
been  seen,  it  was  not  given  by  the  Judiciary  Act  of  1789,  and  it  did 
not  exist  in  1873,  when  the  case  of  Wisconsin  v.  Duluth,  2  Dill.  406, 
was  decided  by  Mr.  Justice  Miller  on  the  circuit.  But  the  act  of 
March  3d,  1875,  ch.  137,  18  Stat.  470,  "  to  determine  the  jurisdiction 
of  Circuit  Courts  of  the  United  States,  and  to  regulate  the  removal 
of  causes  from  the  State  courts,  and  for  other  purposes."  does,  in 
express  terms,  provide  "that  the  Circuit  Courts  of  the  United  States 
shall  have  original  cognizance,  concurrent  with  the  courts  of  the  sev- 


SECT.  I.  d.  3.]  AMES   V.    KANSAS.  691 

eral  States,  of  all  suits  of  a  civil  nature  at  common  law,  or  in  equity, 
.  .  .  arising  under  the  Constitution  or  laws  of  the  United  States  ;" 
and  also  that  suits  of  the  same  nature  begun  in  a  State  court  may  be 
removed  to  the  Circuit  Courts.  And  here  it  is  to  be  remarked,  that 
there  is  nothing  in  this  which  manifests  an  intention  to  interfere  with 
the  exclusive  original  jurisdiction  of  the  Supreme  Court  as  established 
by  the  act  of  1789,  and  continued  by  section  G87  of  tlie  Ke vised 
Statutes.  The  only  question  we  have  to  consider  is,  therefore, 
whether  suits  cognizable  in  the  courts  of  the  United  States  on 
account  of  the  nature  of  the  controversy,  and  which  need  not  be 
brought  originally  in  tlie  Supreme  Court,  may  now  be  brought  in  or 
renioved  to  the  Circuit  Courts  without  regard  to  the  character  of  the 
parties.  All  admit  that  the  act  does  give  the  requisite  jurisdiction 
in  suits  where  a  State  is  not  a  party,  so  that  the  real  question  is, 
whether  the  Constitution  exempts  the  States  from  its  operation. 

The  same  exemption  was  claimed  in  Cohens  v.  Virginia,  supra, 
to  show  that  the  appellate  jurisdiction  of  this  court  did  not  e\.- 
tend  to  the  review  of  the  judgments  of  a  State  court  in  a  suit  by  a 
State  against  one  of  its  citizens ;  but  Chief  Justice  Marshall  said, 
*'  The  argument  would  have  great  force  if  urged  to  prove  that  this 
court  could  not  establish  the  demand  of  a  citizen  upon  his  State,  but 
is  not  entitled  to  the  same  force,  when  urged  to  prove  that  this  court 
cannot  inquire  whether  the  Constitution  or  laws  of  the  United  States 
protect  a  citizen  from  a  prosecution  instituted  against  him  by  a 
State.  ...  It  may  be  true  that  the  partiality  of  the  State  tribunals, 
in  ordinary  controversies  between  a  State  and  its  citizens,  was  not 
apprehended,  and,  therefore,  the  judicial  power  of  the  Union  was 
not  extended  to  such  cases  ;  but  this  was  not  the  sole  nor  the  great- 
est object  for  which  this  department  was  created,  A  more  impor- 
tant, a  much  more  interesting,  object  was  the  preservation  of  the 
Constitution  and  laws  of  the  United  States,  so  far  as  they  can  be 
preserved  by  judicial  authority;  and,  therefore,  the  jurisdiction  of 
the  courts  of  the  Union  was  expressly  extended  to  all  cases  arising 
under  the  Constitution  and  those  laws.  If  the  Constitution  or  laws 
may  be  violated  by  proceedings  instituted  by  a  State  against  its  own 
citizens,  and  if  that  violation  may  be  such  as  essentially  to  affect  the 
Constitution  and  the  laws,  such  as  to  arrest  the  progress  of  govern- 
ment in  its  constitutional  course,  why  should  these  cases  be  excepted 
from  that  provision  which  expressly  extends  the  judicial  power  of 
the  Union  to  all  cases  arising  under  the  Constitution  and  laws  ? 
After  bestowing  on  this  subject  the  most  attentive  consideration,  the 
court  can  perceive  no  reason,  founded  on  the  character  of  the  parties, 
for  introducing  an  exception  which  the  Constitution  has  not  made  ; 
and  we  think  the  judicial  power,  as  originally  given,  extends  to  all 
cases  arising  under  the  Constitution  or  a  law  of  the  United  States, 
whoever  may  be  the  parties,"  pp.  391-2. 

The  language  of  the  act  of  1875  in  this  particular  is  identical  with 


692  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

that  of  the  Constitution,  and  the  evident  purpose  of  Congress  was  to 
make  the  original  jurisdiction  of  the  Circuit  Courts  coextensive  with 
the  judicial  power  in  all  cases  where  the  Supreme  Court  had  not 
already  been  invested  by  law  with  exclusive  cognizance.  To  quote 
again  from  Chief  Justice  Marshall,  in  Cohens  v.  Virginia,  p.  379, 
"  the  jurisdiction  of  the  court,  then,  being  extended  by  the  letter  of 
the  Constitution  to  all  cases  arising  under  it,  or  under  the  laws  of 
the  United  States,  it  follows,  that  those  who  would  withdraw  any 
case  of  this  kind  from  that  jurisdiction  must  sustain  the  exemption 
they  claim,  on  the  spirit  and  true  meaning  of  the  Constitution,  which 
spirit  and  true  meaning  must  be  sO  apparent  as  to  overrule  the  words 
which  its  tramers  have  employed."  This  rule  is  equally  applicable 
to  the  statute  we  have  now  under  consideration.  The  judicial  power 
of  the  United  States  extends  to  all  cases  arising  under  the  Constitu- 
tion and  laws,  and  the  act  of  1875  commits  the  exercise  of  that  power 
to  the  Circuit  Courts.  It  rests,  therefore,  on  those  who  would  witli- 
draw  any  case  within  that  power  from  the  cognizance  of  the  Circuit 
Courts  to  sustain  their  exception  "  on  the  spirit  and  true  meaning  of 
the  "  act,  "  which  spirit  and  true  meaning  must  be  so  apparent  as  to 
overrule  the  words  its  framers  have  employed."  To  the  extent  that 
the  words  conflict  with  other  laws  giving  exclusive  original  jurisdic- 
tion to  the  Supreme  Court  this  has  been  done,  but  no  more.  The 
judicial  power  of  the  United  States  exists  under  the  Constitution, 
and  Congress  alone  is  authorized  to  distribute  that  power  among 
the  courts. 

We  conclude,  therefore,  that  the  cases  were  removable  under  the 
act  of  March  3d,  1875. 

The  order  to  remand  in  each  case  is  reversed,  and  the  Circuit 
Court  directed  to  entertain  the  cases  as  properly  removed  from 
the  State  court  and  proceed  accordingly. 


STATE  OF  WISCONSIN   v.   PELICAN  INSURANCE 
COMPANY. 

127  United  States,  2G5.     1SS8. 

Mr.  Justice  Gray,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

This  action  is  brought  upon  a  judgment  recovered  by  the  State  of 
Wisconsin  in  one  of  her  own  courts  against  the  Pelican  Insurance 
Company,  a  Louisiana  corporation,  for  penalties  imposed  by  a  statute 
of  Wisconsin  for  not  making  returns  to  the  insurance  commissioner 
of  the   State,  as   required   by  that  statute.     The  leading  question 


SECT.  I.  d.  3.]  WISCONSIN    V.    PELICAN   INS.    CO. 


693 


argued  at  the  bar  is  whether  such  an  action  is  within  the  original 
jurisdiction  of  this  court. 

The  ground  on  which  the  jurisdiction  is  invoked  is  not  the  nature 
of  the  cause,  but  the  character  of  the  parties,  the  plaintiff  being 
one  of  the  States  of  the  Union,  and  the  defendant  a  corporation  of 
another  of  those  States. 

[Quotations  are  made  from  Const,  art.  3,  sect.  2,  and  the  Eleventh 
Amendment.] 

By  the  Constitution,  therefore,  this  court  has  original  jurisdiction 
of  suits  brought  by  a  State  against  citizens  of  another  State,  as  well 
as  of  controversies  between  two  States;  and  it  is  well  settled  that 
a  corporation  created  by  a  State  is  a  citizen  of  the  State,  within  the 
meaning  of  those  provisions  of  the  Constitution  and  statutes  of  the 
United  States  which  define  the  jurisdiction  of  the  Federal  courts. 
Kansas  Pacific  R.  R.  Co.  v.  Atchison,  &c.  R.  R.  Co.,  112  U.  S.  414; 
Paul  V.  Virginia,  8  Wall.  168,  178;  Pennsylvania  v.  Wheeling,  &c. 
Bridge  Co.,  13  How.  518. 

Yet,  notwithstanding  the  comprehensive  words  of  the  Constitu- 
tion, the  mere  fact  that  a  State  is  the  plaintiff  is  not  a  conclusive 
test  that  the  controversy  is  one  in  which  this  court  is  authorized  to 
grant  relief  against  another  State  or  her  citizens;  and  a  consideration 
of  the  cases  in  which  it  has  heretofore  had  occasion  to  pass  upon  the 
construction  and  effect  of  these  provisions  of  the  Constitution  may 
throw  light  on  the  determination  of  the  question  before  us. 

As  to  "controversies  between  two  or  more  States."  The  most 
numerous  class  of  which  this  court  has  entertained  jurisdiction  is 
that  of  controversies  between  two  States  as  to  the  boundaries  of 
their  territory,  such  as  were  determined  before  the  Revolution  by  the 
King  in  Council,  and  under  the  Articles  of  Confederation  (while 
there  was  no  national  judiciary)  by  committees  or  commissioners 
appointed  by  Congress.  2  Story,  Constitution,  §  1681;  Kew  Jersey 
r.  New  York,  3  Pet.  461;  5  Pet.  284;  6  Pet.  323;  Rhode  Island 
V.  Massachusetts,  12  Pet.  657,  724,  736,  754;  13  Pet.  23;  14  Pet. 
210;  15  Pet.  233;  4  How.  591,  628;  Missouri  v.  Iowa,  7  How. 
660,  and  10  How.  1;  Florida  v.  Georgia,  17  How.  478;  Alabama?'. 
Georgia,  23  How.  505;  Virginia  v.  West  Virginia,  11  Wall.  39; 
Missouri  v.  Kentucky,  11  Wall.  395.  See  also  Georgia  v.  Stanton, 
6  Wall.  50,  72,  73. 

The  books  of  reports  contain  but  few  other  cases  in  which  the  aid 
of  this  court  has  been  invoked  in  controversies  between  two  States. 

In  Fowler  v.  Lindsey  and  Fowler  v.  Miller,  actions  of  ejectment 
were  pending  in  the  Circuit  Court  of  the  United  States  for  the 
District  of  Connecticut  between  private  citizens  for  lands  over  which 
the  States  of  Connecticut  and  New  York  both  claimed  jurisdiction; 
and  a  writ  of  certiorari  to  remove  those  actions  into  this  court  as 
belonging  exclusively  to  its  jurisdiction  was  refused,  because  a  State 
was  neither  nominally  nor  substantially  a  party  to  them.     3  Dall. 


694  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

411.  Upon  a  bill  in  equity  afterwards  filed  in  tins  court  by  the  State 
of  New  York  against  the  State  of  Connecticut  to  stay  the  actions  of 
ejectment,  this  court  refused  the  injunction  prayed  for,  because  the 
State  of  iSI'ew  York  was  not  a  party  to  them,  and  had  no  such  interest 
in  their  decision  as  would  support  the  bill.  New  York  v.  Connecti- 
cut, 4  Dall.  1,  3. 

This  court  has  declined  to  take  jurisdiction  of  suits  between 
States  to  compel  the  performance  of  obligations  which,  if  the  States 
had  been  independent  nations,  could  not  have  been  enforced  judi- 
cially, but  only  through  the  political  departments  of  their  govern- 
ments. Thus,  in  Kentucky  v.  Dennison,  24  How.  66,  where  the 
State  of  Kentucky,  by  her  governor,  applied  to  this  court  in  the  ex- 
ercise of  its  original  jurisdiction  for  a  writ  of  mandamus  to  the 
governor  of  Ohio  to  compel  him  to  surrender  a  fugitive  from  justice, 
this  court,  while  holding  that  the  case  was  a  controversy  between 
two  States,  decided  that  it  had  no  authority  to  grant  the  writ.  And 
in  New  Hampshire  v.  Louisiana  and  New  Y^ork  v.  Louisiana,  108 
U.  S.  76,  it  was  adjudged  that  a  State,  to  whom,  pursuant  to  her 
statutes,  some  of  her  citizens,  holding  bonds  of  another  State,  had 
assigned  them  in  order  to  enable  her  to  sue  on  and  collect  them  for 
the  benefit  of  the  assignors,  could  not  maintain  a  suit  against  the 
other  State  in  this  court.  See  also  Cherokee  Nation  v.  Georgia,  5 
Pet.  1,  20,  28,  51,  75. 

In  South  Carolina  v.  Georgia,  93  U.  S.  4,  this  court,  speaking 
by  Mr.  Justice  Strong,  left  the  question  open,  whether  "a  State, 
when  suing  in  this  court  for  the  prevention  of  a  nuisance  in  a  navi- 
gable river  of  the  United  States,  must  not  aver  and  show  that  it  will 
sustain  some  special  and  peculiar  injury  therefrom,  such  as  would 
enable  a  private  person  to  maintain  a  similar  action  in  another  court ;  " 
and  dismissed  the  bill,  because  no  unlawful  obstruction  of  navigation 
was  proved.     93  U.  S.  14. 

As  to  "controversies  between  a  State  and  citizens  of  another 
State."  The  object  of  vesting  in  the  courts  of  the  United  States 
jurisdiction  of  suits  by  one  State  against  the  citizens  of  another  was 
to  enable  such  controversies  to  be  determined  by  a  national  tribunal, 
and  thereby  to  avoid  the  partiality,  or  suspicion  of  partiality,  which 
might  exist  if  the  plaintiff  State  were  compelled  to  resort  to  the 
courts  of  the  State  of  which  the  defendants  were  citizens.  Federal- 
ist, No.  80;  Chief  Justice  Jay,  in  Chisholm  v.  Georgia,  2  Pall. 
419,  475;  2  Story,  Constitution,  §§  1638,  1682.  The  grant  is  of 
"judicial  power,"  and  was  not  intended  to  confer  upon  the  courts  of 
the  United  States  jurisdiction  of  a  suit  or  prosecution  by  the  one 
State,  of  such  a  nature  that  it  could  not,  on  the  settled  principles  of 
public  and  international  law,  be  entertained  by  the  judiciary  of  the 
other  State  at  all. 

By  the  law  of  England  and  of  the  United  States,  the  penal  laws 
of  a  country  do  not  reach  beyond  its  own  territory,  except  when 


SECT.  I.  d.  3.]  WISCONSIN   V.    PELICAN   INS.   CO.  695 

extended  by  express  treaty  or  statute  to  offences  committed  abroad 
by  its  own  citizens;  and  they  must  be  administered  in  its  own 
courts  onl}',  and  cannot  be  enforced  by  the  courts  of  another  country. 
Wheaton,  Int.  Law  (8th  ed.),  §§  113,  121. 

Chief  Justice  Marshall  stated  the  rule  in  the  most  condensed  form, 
as  an  incontrovertible  maxim,  "The  courts  of  no  country  execute  the 
penal  laws  of  another."     The  Antelope,  10  Wheat.  66,  123. 

The  only  cases  in  which  the  courts  of  the  United  States  have 
entertained  suits  by  a  foreign  State  have  been  to  enforce  demands  of 
a  strictly  civil  nature.  The  Sapphire,  11  Wall.  164;  King  of  Spain 
V.  Oliver,  2  Wash.  C.  C.  429,  and  Pet.  C.  C.  217,  276.  The  case  of 
The  Sapphire  was  a  libel  in  admiralty,  filed  by  the  late  Emperor 
of  the  French,  and  prosecuted  by  the  French  Republic  after  his 
deposition,  to  recover  damages  for  a  collision  between  an  American 
ship  and  a  French  transport;  and  Mr.  Justice  Bradley,  delivering 
the  judgment  of  this  court  sustaining  the  suit,  said:  "A  foreign 
sovereign,  as  well  as  any  other  foreign  person,  who  has  a  demand 
of  a  civil  nature  against  any  person  here,  may  prosecute  it  in  our 
courts."  11  Wall.  167.  The  case  of  The  King  of  Spain  v.  Oliver, 
although  a  suit  to  recover  duties  imposed  by  the  revenue  laws  of 
S[)ain,  was  not  founded  upon  those  laws,  or  brought  against  a  person 
who  had  broken  them,  but  was  in  the  nature  of  an  action  of  assump- 
sit against  other  persons  alleged  to  be  bound  by  their  own  contract 
to  pay  the  duties;  and  the  action  failed  because  no  express  or  im- 
plied contract  of  the  defendants  was  proved.     Pet.  C.  C.  286,  290. 

The  rule  that  the  courts  of  no  country  execute  the  penal  laws  of 
another  applies  not  only  to  prosecutions  and  sentences  for  crimes 
and  misdemeanors,  but  to  all  suits  in  favor  of  the  State  for  the  re- 
covery of  pecuniary  penalties  for  any  violation  of  statutes  for  the 
protection  of  its  revenue,  or  other  municipal  laws,  and  to  all  judg- 
ments for  such  penalties.  If  this  were  not  so,  all  that  would  be 
necessary  to  give  ubiquitous  effect  to  a  penal  law  would  be  to  put 
the  claim  for  a  penalty  into  the  shape  of  a  judgment.  Wharton, 
Confl.  of  Laws,  §  833;  Westlake,  Int.  Law  (1st  ed.),  §  388;  Pigott, 
Judg.  209,  210. 

Lord  Karnes,  in  his  Principles  of  Equity,  cited  and  approved  by 
j\[r.  Justice  Story  in  his  Commentaries  on  the  Conflict  of  Laws,  after 
having  said,  "The  proper  place  for  punishment  is  where  the  crime 
is  committed,  and  no  society  takes  concern  in  any  crime  but  what 
is  hurtful  to  itself;"  and  recognizing  the  duty  to  enforce  foreign 
judgments  or  decrees  for  civil  debts  or  damages;  adds,  "But  this 
includes  not  a  decree  decerning  for  a  penalty;  because  no  court 
reckons  itself  bound  to  punish,  or  to  concur  in  punishing,  any  delict 
committed  extra  terriforiiini."  2  Kames,  Equity  (3d  ed.),  326,  366; 
Story,  Conflict  of  Laws,  §§  600,  622. 

It  is  true  that  if  the  prosecution  in  the  courts  of  one  country  for  a 
violation  of  its  municipal  law  is  in  rem,  to  obtain  a  forfeiture  of 


69G  THE    JUDICIAL    DEPARTMENT.  [CHAP.  TI. 

specific  property  within  its  jurisdiction,  a  judgment  of  forfeiture, 
rendered  after  due  notice,  and  vesting  the  title  of  the  property  in 
the  State,  will  be  recognized  and  upheld  in  the  courts  of  any  other 
country  in  which  the  title  to  the  property  is  brought  in  issue. 
Eose  V.  Himely,  4  Cranch,  241;  Hudson  v.  Guestier,  4  Cranch,  293; 
Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumner,  600,  605;  Pigott,  Judg. 
264.  But  the  recognition  of  c.  vested  title  in  property  is  quite  dif- 
ferent from  the  enforcement  of  a  claim  for  a  pecuniary  penalty. 
In  the  one  case,  a  complete  title  in  the  property  has  been  acquired  by 
the  foreign  judgment;  in  the  other,  further  judicial  action  is  sought 
to  compel  the  payment  by  the  defendant  to  the  plaintiff  of  money 
in  which  the  plaintiff  has  not  as  yet  acquired  any  specific  right. 

The  application  of  the  rule  to  the  courts  of  the  several  States 
and  of  the  United  States  is  not  affected  by  the  provisions  of  the 
Constitution  and  of  the  act  of  Congress,  by  which  the  judgments  of 
the  courts  of  any  State  are  to  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States  as  they  have  by  law  or 
usage  in  the  State  in  which  they  were  rendered.  Constitution,  art. 
4,  sect.  1;  Act  of  May  26,  1790,  c.  11,  1  Stat.  122;  Rev.  Stat.  §  905. 
Those  provisions  establish  a  rule  of  evidence,  rather  than  of  juris- 
diction. While  they  make  the  record  of  a  judgment,  rendered  after 
due  notice  in  one  State,  conclusive  evidence  in  the  courts  of  another 
State,  or  of  the  United  States,  of  the  matter  adjudged,  they  do  not 
affect  the  jurisdiction,  either  of  the  court  in  which  the  judgment  is 
rendered,  or  of  the  court  in  which  it  is  offered  in  evidence.  Judg- 
ments recovered  in  one  State  of  the  Union,  when  proved  in  the 
courts  of  another  government,  whether  State  or  ^National,  within  the 
United  States,  differ  from  judgments  recovered  in  a  foreign  country 
in  no  other  respect  than  in  not  being  re-examinable  on  their  merits, 
nor  impeachable  for  fraud  in  obtaining  them,  if  rendered  by  a  court 
having  jurisdiction  of  the  cause  and  of  the  parties.  Hanley  v. 
Donoghue,  116  U.  S.  1,  4. 

In  the  words  of  Mr.  Justice  Story,  cited  and  approved  by  Mr.  Jus- 
tice Bradley  speaking  for  this  court,  "The  Constitution  did  not 
mean  to  confer  any  new  power  upon  the  States,  but  simply  to  regu- 
late the  effect  of  their  acknowledged  jurisdiction  over  persons  and 
things  within  their  territory.  It  did  not  make  the  judgments  of 
other  States  domestic  judgments  to  all  intents  and  purposes,  but  only 
gave  a  general  validity,  faith,  and  credit  to  them  as  evidence.  No 
execution  can  issue  upon  such  judgments  without  a  new  suit  in  the 
tribunals  of  other  States.  And  they  enjoy  not  the  right  of  priority 
or  lien  which  they  have  in  the  State  where  they  are  pronounced,  but 
that  only  which  the  lex  fori  gives  to  them  by  its  own  laAvs  in  tlieir 
character  of  foreign  judgments."  Story,  Contiict  of  Laws,  §  609; 
Thompson  v.  Whitman,  18  Wall.  457,  462,  463. 

A  judgment  recovered  in  one  State,  as  was  said  by  Mr.  Justice 
Wayne,  delivering  an  earlier  judgment  of  this  court,  "  does  not  carry 


SECT.  I.  d.  3.]  WISCONSIN   V.   PELICAN   INS.    CO.  697 

with  it,  into  another  State,  the  efficacy  of  a  judgment  upon  property 
or  persons,  to  be  enforced  by  execution.  To  give  it  the  force  of  a 
judgment  in  another  State,  it  must  be  made  a  judgment  there;  and 
can  only  be  executed  in  the  latter  as  its  laws  may  permit."  McEl- 
moyle  v.  Cohen,  13  Fet.  312,  325. 

The  essential  nature  and  real  foundation  of  a  cause  of  action  are 
not  changed  by  recovering  judgment  upon  it;  and  the  technical 
rules,  which  regard  the  original  claim  as  merged  in  the  judgment, 
and  the  judgment  as  implying  a  promise  by  the  defendant  to  pay  it, 
do  not  preclude  a  court,  to  which  a  judgment  is  presented  for  affirma- 
tive action  (while  it  cannot  go  behind  the  judgment  for  the  purpose 
of  examining  into  the  validity  of  the  claim),  from  ascertaining 
whether  the  claim  is  really  one  of  such  a  nature  that  the  court  is 
authorized  to  enforce  it.  Louisiana  v.  Xew  Orleans,  109  U.  S.  285, 
288,291;  Louisiana  u.  St.  Martin's  Parish,  111  U.  S.  716;  Chase 
V.  Curtis,  113  U.  S.  452,  464;  Boynton  v.  Ball,  121  U.  S.  457,  466. 

The  only  cases  cited  in  the  learned  argument  for  the  plaintiff, 
which  tend  to  support  the  view  that  the  courts  of  one  State  will 
maintain  an  action  upon  a  judgment  rendered  in  another  State  for 
a  penalty  incurred  by  a  violation  of  her  municipal  laws,  are  Spencer 
V.  Brockway,  1  Ohio,  259,  in  which  an  action  was  sustained  in 
Ohio  upon  a  judgment  rendered  in  Connecticut  upon  a  forfeited 
recognizance  to  answer  for  a  violation  of  the  penal  laws  of  that  State; 
Healy  v.  Root,  11  Pick.  389,  in  which  an  action  was  sustained  in 
Massachusetts  upon  a  judgment  rendered  in  Pennsylvania  in  a 
qui  tarn  action  on  a  penal  statute  for  usury;  and  Indiana  v.  Helmer, 
21  Iowa,  370,  in  which  an  action  by  the  State  of  Indiana  was  sus- 
tained in  the  courts  of  Iowa  upon  a  judgment  rendered  in  Indiana  in 
a  prosecution  for  the  maintenance  of  a  bastard  child. 

The  decision  in  each  of  those  cases  appears  to  have  been  mainly 
based  upon  the  supposed  effect  of  the  provisions  of  the  Constitution 
and  the  act  of  Congress  as  to  the  faith  and  credit  due  to  a  judgment 
rendered  in  another  State,  which  had  not  then  received  a  full  exposi- 
tion from  this  court;  and  the  other  reasons  assigned  are  not  such  as 
to  induce  us  to  accept  those  decisions  as  satisfactory  precedents  to 
guide  our  judgment  in  the  present  case. 

From  the  first  organization  of  the  courts  of  the  United  States, 
nearly  a  century  ago,  it  has  always  been  assumed  that  the  original 
jurisdiction  of  this  court  over  controversies  between  a  State  and 
citizens  of  another  State,  or  of  a  foreign  country,  does  not  extend  to 
a  suit  by  a  State  to  recover  penalties  for  a  breach  of  her  own  munici- 
pal law.  This  is  shown  both  by  the  nature  of  the  cases  in  which 
relief  has  been  granted  or  sought,  and  by  acts  of  Congress  and 
opinions  of  this  court  more  directly  bearing  upon  the  question. 

The  earliest  controversy  in  this  court,  so  far  as  appears  by  the  re- 
ports of  its  decisions,  in  which  a  State  was  the  plaintiff,  is  that  of 
Georgia  v.  Brailsford. 


698  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

At  February  term,  1792,  the  State  of  Georgia  filed  in  this  court  a 
bill  iu  equity  against  Brailsford,  Powell,  and  Hopton,  British  mer- 
chants and  copartners,  alleging  that  on  August  4.  1782,  during  the 
Revolutionary  War,  the  State  of  Georgia  enacted  a  law,  confiscating 
to  the  State  all  the  property  within  it  (including  debts  due  to  British 
merchants   or   others    residing    in  Great   Britain)    of   persons   who 
had  been  declared  guilty  or  convicted,  in  one  or  other  of  the  United 
States,  of  offences  which  induced  a  like  confiscation  of  their  property 
within  the  States  of  which  they  were  citizens;  and  also  sequester- 
ing, and  directing  to  be  collected  for  the  benefit  of  the  State,  all 
debts  due  to  merchants  or  others  residing  in  Great  Britain,  and  con- 
fiscating to  the  State  all  the  property  belonging  and  debts  due  to  sub- 
jects of  Great  Britain ;  and  that  by  the  operation  of  this  law  all  the 
debts  due  from  citizens  of  Georgia  to  persons  who  had  been  subjected 
to  the  penalties  of  confiscation  in  other  States,  &nd  of  British  mer- 
chants and  otliers  residing  in  Great  Britain,  and  of  all  other  Bi'itish 
subjects,   were   vested    in    the  State  of  Georgia.     The  bill  further 
alleged  that  one  Spalding,  a  citizen  of  Georgia,  was  indebted  to  the 
defendants  upon  a  bond,  which  by  virtue  of  this  law  was  transferred 
from  the  obligees  and  vested  in  the  State;    that  Brailsford  was  a 
citizen  of  Great  Britain,  and  resided  there  from  17G7  till  after  the 
passing  of  the  law,  and  that  Hopton's  and  Powell's  property  (debts 
excepted)  had  been  confiscated  by  acts  of  the  legislature  of  South 
Carolina;  that  Brailsford,  Hopton,  and  Powell  had  brought  an  action 
and  recovered  judgment  against  Spalding  upon  this  bond,  and  had 
taken  out  execution  against  him,  in  the  Circuit  Court  of  the  United 
States   for   the   District   of   Georgia,  and  that   the  parties  to  that 
action  had  confederated  together  to  defraud  the  State.     Upon  the 
filing  of  the  bill,  this  court,  without  expressing  any  opinion  upon  the 
merits  of  the  case,  granted  a  temporary  injunction  to  stay  the  money 
in  the  hands  of  the  marshal  of  the  Circuit  Court,  until  the  title  to 
the  bond  as  between  the  State  of  Georgia  and  the  defendants  could 
be  tried.     2  Dall.  402. 

At  February  term,  1793,  upon  a  motion  to  dissolve  that  injunc- 
tion, this  court  held  that  if  the  State  of  Georgia  had  the  title  in 
the  debt  (upon  which  no  opinion  was  then  expressed)  she  had  an 
adequate  remedy  at  law  by  action  upon  the  bond ;  but,  in  order  that 
the  money  might  be  kept  for  the  party  to  whom  it  belonged,  ordered 
the  injunction  to  be  continued  till  the  next  term,  and,  if  Georgia 
should  not  then  have  instituted  her  action  at  common  law,  to  be 
dissolved.     2  Dall.  415. 

Such  an  action  was  brought  accordingly,  and  was  tried  by  a  jury 
at  the  bar  of  this  court  at  February  terra,  1794,  when  the  court  was 
of  opinion,  and  so  charged  the  jury,  that  the  act  of  the  State  of 
Georgia  did  not  vest  the  title  in  the  debt  in  the  State  at  the  time  of 
passing  it,  and  that  by  the  terms  of  the  act  the  debt  was  not  confis- 
cated, but  only  sequestered,  and  the  right  of  the  obligees  to  recover 


SECT.  I.  d.  3.]  WISCONSIN    V.    PELICAN   INS.    CO.  699 

it  revived  on  the  treaty  of  peace;  and  the  jury  returned  a  verdict  for 
the  defendants.     3  Dall.  1. 

It  thus  appears  that  in  Georgia  v.  Brailsford  the  State  did  not 
sue  for  a  penalty,  or  upon  a  judguient  for  a  penalty,  imposed  by  a 
municipal  law,  but  to  assert  a  title,  claimed  to  have  absolutely  vested 
in  her,  not  under  an  ordinary  act  of  municipal  legislation,  but  by 
an  act  of  war,  done  by  the  State  of  Georgia  as  one  of  the  United 
States  (the  Congress  of  which  had  not  then  been  vested  with  the 
power  of  legislating  to  that  effect)  to  assist  them  against  their  com- 
mon enemy  by  confiscating  the  property  of  his  subjects;  and  tliat 
the  only  point  decided  by  this  court,  except  as  to  matters  of  pro- 
cedure, was  that  the  title  had  not  vested  in  the  State  of  Georgia  by 
the  act  in  question. 

In  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  518,  this  court, 
upon  a  bill  in  equity  by  the  State  of  Pennsylvania  against  a  corj)Oia- 
tion  of  Virginia,  ordered  the  taking  down  or  heightening  of  a  bridge 
built  by  the  defendant  over  the  Ohio  River,  under  a  statute  of  Vir- 
ginia, which  the  court  held  to  have  obstructed  the  navigation  of  the 
river,  in  violation  of  a  compact  of  the  State,  confirmed  by  act  of 
Congress.  13  How.  561.  See  also  Willamette  Bridge  Co.  v.  Hatch, 
125  U.  S.  1,  15,  16.  All  the  judges  who  took  part  in  the  decision 
in  the  Wheeling  Bridge  Case  treated  the  suit  as  brought  to  protect 
the  property  of  the  State  of  Pennsylvania.  Mr.  Justice  McLean, 
delivering  the  opinion  of  the  majority  of  the  court,  said:  "In  the 
present  case,  the  State  of  Pennsj^lvania  claims  nothing  connected 
with  the  exercise  of  its  sovereignty.  It  asks  from  the  court  a  pro- 
tection of  its  property  on  the  same  ground  and  to  the  same  extent  as 
a  corporation  or  individual  may  ask  it.  13  How.  5G0,  561.  So 
Chief  Justice  Taney,  who  dissented  from  the  judgment,  said:  "She 
proceeds,  and  is  entitled  to  proceed,  only  for  the  private  and  partic- 
ular injury  to  her  property  which  this  public  nuisance  has  occa- 
sioned. 13  How.  589.  And  Mr.  Justi;'.e  Daniel,  the  other  dissenting 
judge,  took  the  same  view.     13  How.  596. 

Mississippi  v.  Johnson,  4  Wall.  475,  and  Georgia  v.  Stanton,  6 
Wall.  50,  were  cases  of  unsuccessful  attempts  by  a  State,  by  a  bill 
in  equity  against  the  President  or  the  Secretary  of  War,  described 
as  a  citizen  of  another  State,  to  induce  this  court  to  restrain  the  de- 
fendant from  executing,  in  the  course  of  his  official  duty,  an  act  of 
Congress  alleged  to  unconstitutionally  affect  the  political  rights  of 
the  State. 

Texas  v.  White,  7  Wall.  700,  Florida  v.  Anderson,  91  U.  S. 
667,  and  Alabama  v.  Burr,  115  U.  S.  413,  were  suits  to  protect 
rights  of  property  of  the  State.  In  Texas  v.  White,  the  bill  was 
maintained  to  assert  the  title  of  the  State  of  Texas  to  bonds  belong- 
ing to  her,  and  held  by  the  defendants,  citizens  of  other  States,  under 
an  unlawful  negotiation  and  transfer  of  the  bonds.  In  Florida  v. 
Anderson,  the  suit  concerned  the  title  to  a  railroad,  and  was  main- 


TOO  THE    JUDICIAL    DEPARTMENT,  [CHAP.  YI. 

tained  because  the  State  of  Florida  was  the  holder  of  bonds  secured 
by  a  statutory  lien  upon  the  road,  and  had  an  interest  in  an  internal 
improvement  fund  pledged  to  secure  the  payment  of  those  bonds. 
In  Alabama  v.  Burr,  the  object  of  the  suit  was  to  indemnify  the 
State  of  Alabama  against  a  pecuniary  liability  which  she  alleged 
that  she  had  incurred  by  reason  of  fraudulent  acts  of  the  defendants; 
and  upon  the  facts  of  the  case  the  bill  was  not  maintained. 

In  Pennsylvania  v.  Quicksilver  Co.,  10  Wall.  553,  an  action 
brought  in  this  court  by  the  State  of  Pennsylvania  was  dismissed 
for  want  of  jurisdiction,  without  considering  the  nature  of  the  claim, 
because  the  record  did  not  show  that  the  defendant  was  a  corporation 
created  by  another  State. 

In  Wisconsin  v.  Duluth,  96  U.  S.  o79,  the  bill  sought  to  restrain 
the  improvement  of  a  harbor  on  Lake  Superior,  according  to  a 
system  adopted  and  put  in  execution  under  authority  of  Congress, 
and  was  for  that  reason  dismissed,  without  considering  the  general 
question  whether  a  State,  in  order  to  maintain  a  suit  in  this  court, 
must  have  some  proprietary  interest  that  has  been  affected  by  the 
defendant. 

The  cases  heretofore  decided  by  this  court  in  the  exercise  of  its 
original  jurisdiction  have  been  referred  to,  not  as  fixing  the  outer- 
most limit  of  that  jurisdiction,  but  as  showing  tliat  the  jurisdiction 
has  never  been  exercised,  or  even  invoked,  in  any  case  resembling 
the  case  at  bar. 

The  position  that  the  jurisdiction  conferred  by  the  Constitution 
upon  this  court,  in  cases  to  which  a  State  is  a  party,  is  limited  to 
controversies  of  a  civil  nature,  does  not  depend  upon  mere  inference 
from  the  want  of  any  precedent  to  the  contrary,  but  has  express 
legislative  and  judicial  sanction. 

By  the  Judiciary  Act  of  September  24,  1789,  c.  20,  §  13,  it  was 
enacted  that  "the  Supreme  Court  shall  have  exclusive  jurisdiction 
of  controversies  of  a  civil  nature,  where  a  State  is  a  party,  except 
between  a  State  and  its  citizens;  and  except  also  between  a  State  and 
citizens  of  other  States,  or  aliens,  in  which  latter  case  it  shall  have 
original  but  not  exclusive  jurisdiction.  1  Stat.  80.  That  act,  which 
has  continued  in  force  ever  since,  and  is  embodied  in  §  687  of  the 
Revised  Statutes,  was  passed  by  the  first  Congress  assembled  under 
the  Constitution,  many  of  whose  members  had  taken  part  in  fram- 
ing that  instrument,  and  is  contemporaneous  and  weighty  evidence 
of  its  true  meaning.     Ames  v.  Kansas,  111  U.  S.  449,  463,  464. 

In  Chisholm  v.  Georgia,  2  Dall.  419,  decided  at  August  term, 
1793,  in  which  the  judges  delivered  their  opinions  seriatim,  Mr. 
Justice  Iredell,  who  spoke  first,  after  citing  the  provisions  of  the 
original  Constitution,  and  of  §  13 of  the  Judiciary  Act  of  1789,  said: 
"The  Constitution  is  particular  in  expressing  the  parties  who  may 
be  the  objects  of  the  jurisdiction  in  any  of  these  cases,  but,  in  re- 
spect to  the  subject-matter  upon  which  such   jurisdiction  is  to  be 


SECT.  I.  d.  3.]  WISCONSIN   V.    PELICAN    INS.    CO. 


701 


exercised,  uses  the  word  '  controversies '  only.  The  act  of  Congress 
more  particularly  mentions  civil  controversies,  a  qualification  of  the 
general  word  in  the  Constitution,  which  I  do  not  doubt  every  reason- 
able man  will  think  was  well  warranted,  for  it  cannot  be  presumed 
that  the  general  word  '  controversies '  was  intended  to  include  any 
proceedings  that  relate  to  criminal  cases,  which,  in  all  instances 
that  respect  the  same  government  only,  are  uniformly  considered  of 
a  local  nature,  and  to  be  decided  by  its  particular  laws."  2  iJall. 
431,  432.  None  of  the  other  judges  s^iggested  any  doubt  upon  this 
point;  and  Chief  Justice  Jay,  in  summing  up  the  various  classes  of 
cases  to  which  the  judicial  power  of  the  United  States  extends,  used 
"demands"  (a  word  quite  inappropriate  to  designate  criminal  or 
penal  proceedings)  as  including  everything  that  a  State  could  prose- 
cute against  citizens  of  another  State  in  a  national  court.  2  Dall. 
475. 

In  Cohens  v.  Virginia,  G  Wheat.  264,  decided  at  October  term, 
1821,  Chief  Justice  Marshall,  after  showing  that  the  Constitution 
had  given  jurisdiction  to  the  courts  of  the  Union  in  two  classes  of 
cases,  in  one  of  which,  comprehending  cases  arising  under  the  Con- 
stitution, laws,  and  treaties  of  the  United  States,  the  jurisdiction 
depended  on  the  character  of  the  cause,  and  in  the  other,  compre- 
hending controversies  between  two  or  more  States,  or  between  a 
State  and  citizens  of  another  State,  the  jurisdiction  depended 
entirely  on  the  character  of  the  parties,  said:  "The  original  juris- 
diction of  the  Supreme  Court,  in  cases  where  a  State  is  a  party, 
refers  to  those  cases  in  which,  according  to  the  grant  of  power  made 
in  the  preceding  clause,  jurisdiction  might  be  exercised  in  conse- 
quence of  the  character  of  the  party,  and  an  original  suit  might  be 
instituted  in  any  of  the  Federal  courts ;  not  to  those  cases  in  which 
an  original  suit  might  not  be  instituted  in  a  Federal  court.  Of  the 
last  description  is  every  case  between  a  State  and  its  citizens,  and 
perhaps  every  case  in  which  a  State  is  enforcing  its  penal  laws.  In 
such  cases,  therefore,  the  Supreme  Court  cannot  take  original  juris- 
diction."    6  Wheat.  398,  399. 

The  soundness  of  the  definition,  given  in  the  Judiciary  Act  of 
1789,  of  the  cases  coming  within  the  original  jurisdiction  of  this 
court  by  reason  of  a  State  being  a  party,  as  "  controversies  of  a  civil 
nature,"  was  again  recognized  by  this  court  in  Rhode  Island  v. 
Massachusetts,  12  Pet.  657,  722,  731,  decided  at  January  term, 
1838. 

The  statute  of  Wisconsin,  under  which  the  State  recovered  in  one 
of  her  own  courts  the  judgment  now  and  here  sued  on,  was  in  the 
strictest  sense  a  penal  statute,  imposing  a  penalty  upon  any  insur- 
ance company  of  another  State,  doing  business  in  the  State  of  Wis- 
consin without  having  deposited  with  the  proper  oflficer  of  the 
State  a  full  statement  of  its  property  and  business  during  the 
previous  year.     Rev.  Stat.  Wis.  §  1920.     The  cause  of  action  was 


702  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VT. 

not  any  private  injury,  but  solely  the  offence  committed  against  the 
State  by  violating  her  law.  The  prosecution  was  in  the  name  of 
the  State,  and  the  whole  penalty,  when  recovered,  would  accrue  to 
the  State,  and  be  paid,  one  half  into  her  treasury,  and  the  other  half 
to  her  insurance  commissioner,  who  pays  all  expenses  of  prosecut- 
ing for  and  collecting  such  forfeitures.  Stat.  Wis.  1885,  c.  395. 
The  real  nature  of  the  case  is  not  affected  by  the  forms  provided 
by  the  law  of  the  State  for  the  punishment  of  the  offence.  It  is 
immaterial  whether,  by  the  law  of  Wisconsin,  the  prosecution  must 
be  by  indictment  or  by  action;  or  whether,  under  that  law,  a  judg- 
ment there  obtained  for  the  penalty  might  be  enforced  by  execution, 
by  scii'e  facias,  or  by  a  new  suit.  In  whatever  form  the  State  pur- 
sues her  right  to  punish  the  offence  against  her  sovereignty,  every 
step  of  the  proceeding  tends  to  one  end,  the  compelling  the  offender 
to  pay  a  pecuniary  fine  by  way  of  punishment  for  the  offence. 

This  court,  therefore,  cannot  entertain  an  original  action  to 
compel  the  defendant  to  pay  to  the  State  of  Wisconsin  a  sum  of 
money  in  satisfaction  of  the  judgment  for  that  fine. 

The  original  jurisdiction  of  this  court  is  conferred  by  the  Consti- 
tution, without  limit  of  the  amount  in  controversy,  and  Congress 
has  never  imposed  (if  indeed  it  could  impose)  any  such  limit.  If 
this  court  has  original  jurisdiction  of  the  present  case,  it  must 
follow  that  any  action  upon  a  judgment  obtained  by  a  State  in  her 
own  courts  against  a  citizen  of  another  State  for  the  recovery  of  any 
sum  of  money,  however  small,  by  way  of  a  fine  for  any  offence,  how- 
ever petty,  against  her  laws,  could  be  brought  in  the  first  instance 
in  the  Supreme  Court  of  the  United  States.  That  cannot  have  been 
the  intention  of  the  Convention  in  framing,  or  of  the  people  in 
adopting,  the  Federal  Constitution. 

Judgment  for  the  defendant  on  the  demurrer. 


4.    Suits  against  States. 

HANS  V,   LOUISIANA. 
134  United  States,  1.     1890. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  in  the  Circuit  Court  of  the  United 
States,  in  December,  1884,  against  the  State  of  Louisiana  by  Hans, 
a  citizen  of  that  State,  to  recover  the  amount  of  certain  coupons 
annexed  to  bonds  of  the  State,  issued  under  the  provisions  of  an  act 
of  the  legislature  approved  January  24,  1874.  The  bonds  are 
known  and  designated  as  the  "consolidated  bonds  of  the  State  of 


SECT.  I.  d.  4.]  HANS   V.    LOUISIANA.  TOS 

Louisiana,"  and  the  coupons  sued  on  are  for  interest  which  accrued 
Januar}^  1,  1880. 

[Plaintiff's  claim  is  that  the  issuance  of  the  bonds  in  question  was 
sanctioned  by  an  amendment  to  the  State  constitution  proposed  by 
the  legislature  at  the  time  the  bonds  were  authorized,  in  which  it 
was  declared  that  the  State  should  not  impair  the  obligation  of  the 
contract  thereby  created,  and  that  the  judicial  power  should  be 
exercised  when  necessary  to  secure  the  levy,  collection,  and  payment 
of  taxes  to  satisfy  such  claim;  but  that  subsequently  this  constitu- 
tional amendment  was  superseded  by  a  new  constitution,  which 
remitted  the  taxes  thus  provided  for  and  prohibited  the  payment  of 
such  bonds,  whereby  the  obligations  of  the  State  were  repudiated, 
and  taxes  already  collected  to  be  applied  on  the  interest  of  such 
bonds  were  diverted  to  other  purposes.  Plaintiff  avers  that  these 
provisions  of  the  later  constitution  violated  the  obligations  of  the 
contract,  and  asked  that  the  State  be  required  to  pay  plaintilf  the 
interest  represented  by  the  coupons  in  suit.  The  State  appeared  and 
excepted  to  the  suit  on  the  ground  that  the  State  could  not  be  sued 
without  its  permission,  and  asked  that  the  suit  be  dismissed.  This 
exception  was  sustained  and  the  case  was  brought  to  this  court  by 
plaintiff  on  writ  of  error.] 

The  question  is  presented,  whether  a  State  can  be  sued  in  a 
Circuit  Court  of  the  United  States  by  one  of  its  own  citizens  upon  a 
suggestion  that  the  case  is  one  that  arises  under  the  Constitution  or 
laws  of  the  United  States. 

The  ground  taken  is,  that  under  the  Constitution,  as  well  as 
under  the  act  of  Congress  passed  to  carry  it  into  effect,  a  case  is 
within  the  jurisdiction  of  the  Federal  courts,  without  regard  to  the 
character  of  the  parties,  if  it  arises  under  the  Constitution  or  laws 
of  the  United  States,  or,  which  is  the  same  thing,  if  it  necessarily 
involves  a  question  under  said  Constitution  or  laws.  The  language 
relied  on  is  that  clause  of  the  3d  article  of  the  Constitution  which 
declares  that  "the  judicial  power  of  the  United  States  shall  extend 
to  all  cases  in  law  and  equity  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority;"  and  the  corresponding  clause  of  the 
act  conferring  jurisdiction  upon  the  Circuit  Court,  which,  as  found 
in  the  act  of  March  3,  1875,  c.  137,  §  1,  18  Stat.  470,  is  as  follows, 
to  wit:  "That  the  Circuit  Courts  of  the  United  States  shall  have 
original  cognizance,  concurrent  with  the  courts  of  the  several  States, 
of  all  suits  of  a  civil  nature  at  common  law  or  in  equity,  .  .  .  aris- 
ing under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority."  It  is  said 
that  these  jurisdictional  clauses  make  no  exception  arising  from  tlie 
character  of  the  parties,  and,  therefore,  that  a  State  can  claim  no 
exemption  from  suit,  if  the  case  is  really  one  arising  under  the  Con- 
stitution, laws,  or  treaties  of  the  United  States.     It  is  conceded  that 


704  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

where  the  jurisdiction  depends  alone  upon  the  character  of  the  par- 
ties, a  controversy  between  a  State  and  its  own  citizens  is  not  em- 
braced within  it;  but  it  is  contended  that  though  jurisdiction  does 
not  exist  on  that  ground,  it  nevertheless  does  exist  if  the  case  itself 
is  one  which  necessarily  involves  a  Federal  question;  and  with 
regard  to  ordinary  parties  this  is  undoubtedly  true.  The  question 
now  to  be  decided  is,  whether  it  is  true  where  one  of  the  parties  is 
a  State,  and  is  sued  as  a  defendant  by  one  of  its  own  citizens. 

That  a  State  cannot  be  sued  by  a  citizen  of  another  State,  or  of  a 
foreign  State,  on  the  mere  ground  that  the  case  is  one  arising  under 
the  Constitution  or  laws  of  the  United  States,  is  clearly  established 
by  the  decisions  of  this  court  in  several  recent  cases.  Louisiana  v. 
Jumel,  107  U.  S.  711;  Hagood  v.  Southern,  117  U.  S.  52;  Li  re 
Ayers,  123  U.  S.  443.  Those  were  cases  arising  under  the  Consti- 
tution of  the  United  States,  upon  laws  complained  of  as  impairing 
the  obligation  of  contracts,  one  of  which  was  the  constitutional 
amendment  of  Louisiana  complained  of  in  the  present  case.  Relief 
was  sought  against  State  officers  who  professed  to  act  in  obedience 
to  those  laws.  This  court  held  that  the  suits  were  virtually  against 
the  States  themselves  and  were  consequently  violative  of  the 
Eleventh  Amendment  of  the  Constitution  and  could  not  be  main- 
tained. It  was  not  denied  that  they  presented  cases  arising  under 
the  Constitution;  but,  notwithstanding  that,  they  were  held  to  be 
prohibited  by  the  amendment  referred  to. 

In  the  present  case  the  plaintiff  in  error  contends  that  he, 
being  a  citizen  of  Louisiana,  is  not  embarrassed  by  the  obstacle  of 
the  Eleventh  Amendment,  inasmuch  as  that  amendment  only  pro- 
hibits suits  against  a  State  which  are  brought  by  the  citizens  of 
another  State,  or  by  citizens  or  subjects  of  a  foreign  State.  It  is 
true,  the  amendment  does  so  read:  and  if  there  were  no  other 
reason  or  ground  for  abating  his  suit,  it  might  be  maintainable; 
and  then  we  should  have  this  anomalous  result,  that  in  cases  aris- 
ing under  the  Constitution  or  laws  of  the  United  States,  a  State 
may  be  sued  in  the  Federal  courts  by  its  own  citizens,  though 
it  cannot  be  sued  for  a  like  cause  of  action  by  the  citizens  of 
other  Stiites,  or  of  a  foreign  State;  and  may  be  thus  sued  in  the 
Federal  courts,  although  not  allowing  itself  to  be  sued  in  its 
own  courts.  If  this  is  the  necessary  consequence  of  the  language 
of  the  Constitution  and  the  law,  the  result  is  no  less  startling  and 
unexpected  than  was  the  original  decision  of  this  court,  that  under 
the  language  of  the  Constitution  and  of  the  judiciary  act  of  1789, 
a  State  was  liable  to  be  sued  by  a  citizen  of  another  State,  or  of  a 
foreign  country.  That  decision  was  made  in  the  case  of  Chisholm 
V.  Georgia,  2  Dall.  419,  and  created  such  a  shock  of  surprise  through- 
out the  country  that,  at  the  first  meeting  of  Congress  thereafter, 
the  Eleventh  Amendment  to  the  Constitution  was  almost  unani- 
mously proposed,  and  was  in  due  course  adopted  by  the  legislatures 


SECT.  I.  d,  4.]  HANS   V.   LOUISIANA.  705 

of  the  States.  This  amendment,  expressing  the  will  of  the  ultimate 
sovereignty  of  the  whole  country,  superior  to  all  legislatures  and  all 
courts,  actually  reversed  the  decision  of  the  Supreme  Court.  It  did 
not  in  terms  prohibit  suits  by  individuals  against  the  States,  but 
declared  that  the  Constitution  should  not  be  construed  to  import  any 
power  to  authorize  the  bringing  of  such  suits.  The  language  of  the 
amendment  is  that  "the  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  another 
State  or  by  citizens  or  subjects  of  any  foreign  State."  The  Supreme 
Court  had  construed  the  judicial  power  as  extending  to  such  a  suit, 
and  its  decision  was  thus  overruled.  The  court  itself  so  understood 
the  effect  of  the  amendment,  for,  after  its  adoption,  Attorney-General 
Lee,  in  the  case  of  Hollingsworth  y.  Virginia,  3  Dall.  378,  submitted 
this  question  to  the  court,  "whether  the  amendment  did,  or  did 
not,  supersede  all  suits  depending,  as  well  as  prevent  the  institu- 
tion of  new  suits,  against  any  one  of  the  United  States,  by  citizens 
of  another  State."  Tilghman  and  Rawle  argued  in  the  negative, 
contending  that  the  jurisdiction  of  the  court  was  unimpaired  in  rela- 
tion to  all  suits  instituted  previously  to  the  adoption  of  the  amend- 
ment. But,  on  the  succeeding  day,  the  court  delivered  an  unanimous 
opinion,  "that  the  amendment  being  constitutionally  adopted,  there 
could  not  be  exercised  any  jurisdiction,  in  any  case  past  or  future,  in 
which  a  State  was  sued  by  the  citizens  of  another  State,  or  by  citi- 
zens or  subjects  of  any  foreign  State." 

This  view  of  the  force  and  meaning  of  the  amendment  is  impor- 
tant. It  shows  that,  on  this  question  of  the  suability  of  the  States 
by  individuals,  the  highest  authority  of  this  country  was  in  accord 
rather  with  the  minority  than  with  the  majority  of  the  court  in  the 
decision  of  the  case  of  Chisholm  v.  Georgia;  and  this  fact  lends 
additional  interest  to  the  able  opinion  of  Mr.  Justice  Iredell  on  that 
occasion.  The  other  justices  were  more  swayed  by  a  close  observ- 
ance of  the  letter  of  the  Constitution,  without  regard  to  former  expe- 
rience and  usage;  and  because  the  letter  said  that  the  judicial  power 
shall  extend  to  controversies  "between  a  State  and  citizens  of  an- 
other State ; "  and  "  between  a  State  and  foreign  States,  citizens  or 
subjects,"  they  felt  constrained  to  see  in  this  language  a  power  to 
enable  the  individual  citizens  of  one  State,  or  of  a  foreign  State,  to 
sue  another  State  of  the  Union  in  the  Federal  courts.  Justice  Ire- 
dell, on  the  contrary,  contended  that  it  was  not  the  intention  to 
create  new  and  unheard-of  remedies,  by  subjecting  sovereign  States 
to  actions  at  the  suit  of  indivduals  (which  he  conclusively  showed 
was  never  done  before),  but  only,  by  proper  legislation,  to  invest  the 
Federal  courts  with  jurisdiction  to  hear  and  determine  controversies 
and  cases,  between  the  parties  designated,  that  were  properly  sus- 
ceptible of  litigation  in  courts. 

Looking  back   from  our  present   standpoint   at   the   decision   in 

45 


706  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

Chisholm  v.  Georgia,  we  do  not  greatly  wonder  at  the  effect  which 
it  had  upon  the  country.  Any  such  power  as  that  of  authorizing 
the  Federal  judiciary  to  entertain  suits  by  individuals  against  the 
States,  had  been  expressly  disclaimed,  and  even  resented,  by  the 
great  defenders  of  the  Constitution  whilst  it  was  on  its  trial  before 
the  American  people.  As  some  of  their  utterances  are  directly  per- 
tinent to  the  question  now  under  consideration,  we  deem  it  proper  to 
quote  them. 

The  eighty-first  number  of  the  Federalist,  written  by  Hamilton; 
has  the  following  profound  remarks :  — 

"It  has  been  suggested  that  an  assignment  of  the  public  securities 
of  one  State  to  the  citizens  of  another,  would  enable  them  to  prose- 
cute that  State  in  the  Federal  courts  for  the  amount  of  those  securi- 
ties; a  suggestion  which  the  following  considerations  prove  to  be 
without  foundation :  — 

"  It  is  inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to 
the  suit  of  an  individual  without  its  consent.  This  is  the  general 
sense  and  the  general  practice  of  mankind;  and  the  exemption,  as 
one  of  the  attributes  of  sovereignty,  is  now  enjoyed  by  the  govern- 
ment of  every  State  in  the  Union.  Unless,  therefore,  there  is  a 
surrender  of  this  immunity  in  the  plan  of  the  convention,  it  will 
remain  with  the  States,  and  the  danger  intimated  must  be  merely 
ideal.  The  circumstances  which  are  necessary  to  produce  an  aliena- 
tion of  State  sovereignty  were  discussed  in  considering  the  article  of 
taxation,  and  need  not  be  repeated  here.  A  recurrence  to  the  prin* 
ciples  there  established  will  satisfy  us,  that  there  is  no  color  to 
pretend  that  the  State  governments  would,  by  the  adoption  of  that 
plan,  be  divested  of  the  privilege  of  paying  their  own  debts  in  their 
own  way,  free  from  every  constraint  but  that  which  flows  from  the 
obligations  of  good  faith.  The  contracts  between  a  nation  and  indi- 
viduals are  only  binding  on  the  conscience  of  the  sovereign,  and  have 
no  pretension  to  a  compulsive  force.  They  confer  no  right  of  action 
independent  of  the  sovereign  will.  To  what  purpose  would  it  be  to 
authorize  suits  against  States  for  the  debts  they  owe  ?  How  could 
recoveries  be  enforced  ?  It  is  evident  that  it  could  not  be  done  with- 
out waging  war  against  the  contracting  State;  and  to  ascribe  to  the 
Federal  courts  by  mere  implication,  and  in  destruction  of  a  pre- 
existing right  of  the  State  governments,  a  power  which  would  involve 
such  a  consequence,  would  be  altogether  forced  and  unwarrantable." 

The  obnoxious  clause  to  which  Hamilton's  argument  was  directed, 
and  which  was  the  ground  of  the  objections  which  he  so  forcibly  met, 
was  that  which  declared  that  "the  judicial  power  shall  extend  to 
all  .  .  .  controversies  between  a  State  and  citizens  of  another  State, 
.  .  .  and  between  a  State  and  foreign  States,  citizens  or  subjects." 
It  was  argued  by  the  opponents  of  the  Constitution  that  this  clause 
would  authorize  jurisdiction  to  be  given  to  the  Federal  courts  to 
entertain  suits  against  a  State  brought  by  the  citizens  of  another 


SECT,  I.  d.  4.]  HANS   V.    LOUISIANA.  707 

State,  or  of  a  foreign  State.  Adhering  to  the  mere  letter,  it  might 
be  so;  and  so,  in  fact,  the  Supreme  Court  held  in  Chisholm  v. 
Georgia;  but  looking  at  the  subject  as  Hamilton  did,  and  as  Mr. 
Justice  Iredell  did,  in  the  light  of  history  and  experience  and  the 
established  order  of  things,  the  views  of  the  latter  were  clearly  right, 
—  as  the  people  of  the  United  States  in  their  sovereign  capacity  sub- 
sequently decided. 

But  Hamilton  was  not  alone  in  protesting  against  the  construction 
put  upon  the  Constitution  by  its  opponents.  In  the  Virginia  con- 
vention the  same  objections  were  raised  by  George  Mason  and  Patrick 
Henry,  and  were  met  by  Madison  and  ^[arshall  as  follows.  -jVIadi- 
son  said :  "  Its  jurisdiction  [the  Federal  jurisdiction]  in  controversies 
between  a  State  and  citizens  of  another  State  is  much  objected  to, 
and  perhaps  without  reason.  It  is  not  in  the  power  of  individuals 
to  call  any  State  into  court.  The  only  operation  it  can  have  is  that, 
if  a  State  should  wish  to  bring  a  suit  against  a  citizen,  it  must  be 
brought  before  the  Federal  court.  This  will  give  satisfaction  to 
individuals,  as  it  will  prevent  citizens  on  whom  a  State  may  have  a 
claim  being  dissatisfied  with  the  State  courts.  ...  It  appears  to 
me  that  this  [clause]  can  have  no  operation  but  this  —  to  give  a 
citizen  a  right  to  be  heard  in  the  Federal  courts;  and,  if  a  State 
should  condescend  to  be  a  party,  this  court  may  take  cognizance  of 
it."  3  Elliott's  Debates,  533.  Marshall,  in  answer  to  the  same 
objection,  said:  "With  respect  to  disputes  between  a  State  and 
the  citizens  of  another  State,  its  jurisdiction  has  been  decried  with 
unusual  vehemence.  I  hope  that  no  gentleman  will  think  that  a 
State  will  be  called  at  the  bar  of  the  Federal  court.  ...  It  is  not 
rational  to  suppose  that  the  sovereign  power  should  be  dragged 
before  a  court.  The  intent  is  to  enable  States  to  recover  claims  of 
individuals  residing  in  other  States.  .  .  .  But,  say  they,  there  will 
be  partiality  in  it  if  a  State  cannot  be  a  defendant  —  if  an  individual 
cannot  proceed  to  obtain  judgment  against  a  State,  though  he  may 
be  sued  by  a  State.  It  is  necessary  to  be  so,  and  cannot  be  avoided. 
I  see  a  difficulty  in  making  a  State  defendant  which  does  not  prevent 
its  being  plaintiff."     lb.  555. 

It  seems  to  us  that  these  views  of  those  great  advocates  and  de- 
fenders of  the  Constitution  were  most  sensible  and  just;  and  they 
apply  equally  to  the  present  case  as  to  that  then  under  discussion. 
The  letter  is  appealed  to  now,  as  it  was  then,  as  a  ground  for  sus- 
taining a  suit  brought  by  an  individual  against  a  State.  The  reason 
against  it  is  as  strong  in  this  case  as  it  was  in  that.  It  is  an  attempt 
to  strain  the  Constitution  and  the  law  to  a  construction  never  imag- 
ined or  dreamed  of.  Can  we  su])pose  that,  when  the  Eleventh 
Amendment  was  adopted,  it  was  understood  to  be  left  open  for  citi- 
zens of  a  State  to  sue  their  own  State  in  the  Federal  courts,  whilst 
the  idea  of  suits  by  citizens  of  other  States,  or  of  foreign  States, 
was  Indignantly  repelled  ?     Suppose  that  Congress,  when  proposing 


708  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI, 

the  Eleventh  Ameudment,  had  appended  to  it  a  proviso  that  nothing 
therein  contained  should  prevent  a  State  from  being  sued  by  its  own 
citizens  in  cases  arising  under  the  Constitution  or  laws  of  the  United 
States:  can  we  imagine  that  it  would  have  been  adopted  b}'  the 
States  ?  The  supposition  that  it  would  is  almost  an  absurdity  on 
its  face. 

The  truth  is,  that  the  cognizance  of  suits  and  actions  unknown  to 
the  law,  and  forbidden  by  the  law,  was  not  contemplated  by  the 
Constitution  when  establishing  the  judicial  power  of  the  United 
States.  Some  things,  undoubtedly,  were  made  justiciable  which 
were  not  known  as  such  at  the  common  law;  such,  for  example,  as 
controversies  between  States  as  to  boundary  lines,  and  other  questions 
admitting  of  judicial  solution.  And  yet  the  case  of  Penn  v.  Lord 
Baltimore,  1  Ves.  Sr.  444,  shows  that  some  of  these  unusual  sub- 
jects of  litigation  were  not  unknown  to  the  courts  even  in  colonial 
times;  and  several  cases  of  the  same  general  character  arose  under 
the  Articles  of  Confederation,  and  were  brought  before  the  tribunal 
provided  for  that  purpose  in  those  articles.  131  U.  S.  Append.  50. 
The  establishment  of  this  new  branch  of  jurisdiction  seemed  to  be 
necessary  from  the  extinguishment  of  diplomatic  relations  between 
the  States.  Of  other  controversies  between  a  State  and  another  State 
or  its  citizens,  which,  on  the  settled  principles  of  public  law,  are  not 
subjects  of  judicial  cognizance,  this  court  has  often  declined  to  take 
jurisdiction.  See  Wisconsin  u.  Pelican  Ins.  Co.,  127  U.  S.  265,  288, 
289,  and  cases  there  cited. 

The  suability  of  a  State  without  its  consent  was  a  thing  unknown 
to  the  law.  This  has  been  so  often  laid  down  and  acknowledged  by 
courts  and  jurists  that  it  is  hardly  necessary  to  be  formally  asserted. 
It  was  fully  shown  by  an  exhaustive  examination  of  the  old  law 
by  Mr.  Justice  Iredell  in  his  opinion  in  Chisholm  v.  Georgia;  and  it 
has  been  conceded  in  every  case  since,  where  the  question  has,  in 
any  way,  been  presented,  even  in  the  cases  which  have  gone  fartliest 
in  sustaining  suits  against  the  oflficers  or  agents  of  States.  Osborn  v. 
Bank  of  United  States,  9  Wheat.  738;  Davis  v.  Gray,  16  Wall.  203; 
Board  of  Liquidation  v.  McComb,  92  U.  S.  531;  United  States  v. 
Lee,  106  U.  S.  196;  Poindexter  v.  Greenhow,  109  U.  S.  63;  Virginia 
Coupon  Cases,  114  U.  S.  269.  In  all  these  cases  the  effort  was  to 
show,  and  the  court  held,  that  the  suits  were  not  against  the  State 
or  the  United  States,  but  against  the  individuals;  conceding  that  if 
they  had  been  against  either  the  State  or  the  United  States,  they 
could  not  be  maintained. 

Mr.  Webster  stated  the  law  with  precision  in  his  letter  to  Bar- 
ing Brothers  &  Co.,  of  October  16,  1839.  Works,  Vol.  YI.  537. 
"The  security  for  State  loans,"  he  said,  ''is  the  plighted  faith  of 
the  State  as  a  political  community.  It  rests  on  the  same  basis  as 
other  contracts  with  established  governments,  the  same  basis,  for 
example,  as  loans  made  by  the  United  States  under  the  authority 


SECT.  I.  d.  4.]  HANS   V.   LOUISIANA.  709 

of  Congress ;  that  is  to  say,  the  good  faith  of  the  government  making 
the  loan,  and  its  ability  to  fulfil  its  engagements." 

In  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  321,  :\[r.  Justice 
]\rcLean,  delivering  the  opinion  of  the  court,  said:  "What  means  of 
enforcing  payment  from  the  State  had  the  holder  of  a  bill  of  credit  ? 
It  is  said  by  the  counsel  for  the  plaintiffs,  that  he  could  have  sued 
the  State.  But  was  a  State  liable  to  be  sued  ?  .  .  .  No  sovereign 
State  is  liable  to  be  sued  without  her  consent.  Under  the  Articles 
of  Confederation,  a  State  could  be  sued  only  in  cases  of  boundary. 
It  is  believed  that  there  is  no  case  where  a  suit  has  been  brought, 
at  any  time,  on  bills  of  credit  against  a  State;  and  it  is  certain  that 
no  suit  could  have  been  maintained  on  this  ground  prior  to  the 
Constitution." 

"It  may  be  accepted  as  a  point  of  departure  unquestioned,"  said 
Mr.  Justice  Miller,  in  Cunningham  v.  Macon  &  Brunswick  R.  R. 
Co.,  109  U.  S.  446,  451,  "that  neither  a  State  nor  the  United 
States  can  be  sued  as  defendant  in  any  court  in  this  country  without 
their  consent,  except  in  the  limited  class  of  cases  in  which  a  State 
may  be  made  a  party  in  the  Supreme  Court  of  the  United  States  by 
virtue  of  the  original  jurisdiction  conferred  on  this  court  by  the 
Constitution." 

Undoubtedly  a  State  may  be  sued  by  its  own  consent,  as  was  the 
case  in  Curran  v.  Arkansas,  15  How.  304,  309,  and  in  Clark  v. 
Barnard,  108  U.  S.  436,  447.  The  suit  in  the  former  case  was  pros- 
ecuted by  virtue  of  a  State  law  which  the  legislature  passed  in  con- 
formity to  the  constitution  of  that  State.  But  this  court  decided, 
in  Beers  v.  Arkansas,  20  How.  527,  that  the  State  could  repeal 
that  law  at  any  time;  that  it  was  not  a  contract  within  the  terms 
of  the  Constitution  prohibiting  the  passage  of  State  laws  impair- 
ing the  obligation  of  a  contract.  In  that  case  the  law  allowing 
the  State  to  be  sued  was  modified  pending  certain  suits  against  the 
State  on  its  bonds,  so  as  to  require  the  bonds  to  be  filed  in  court, 
which  was  objected  to  as  an  unconstitutional  change  of  the  law. 
Chief  Justice  Taney,  delivering  the  opinion  of  the  court,  said:  "It 
is  an  established  principle  of  jurisprudence  in  all  civilized  nations 
that  the  sovereign  cannot  be  sued  in  its  own  courts,  or  in  any  other, 
without  its  consent  and  permission;  but  it  may,  if  it  thinks  proper, 
waive  this  privilege  and  permit  itself  to  be  made  a  defendant  in  a 
suit  by  individuals,  or  by  another  State.  And  as  this  permission  is 
altogether  voluntary  on  the  part  of  the  sovereignty,  it  follows  that 
it  may  prescribe  the  terms  and  conditions  on  which  it  consents  to  be 
sued,  and  the  manner  in  which  the  suit  shall  be  conducted,  and  may 
withdraw  its  consent  whenever  it  may  suppose  that  justice  to  the 
public  requires  it.  .  .  .  The  prior  law  was  not  a  contract.  It  was 
an  ordinary  act  of  legislation,  prescribing  the  conditions  upon  which 
the  State  consented  to  waive  the  privilege  of  sovereignty.  It  con- 
tained no  stipulation  that  these  regulations  should  not  be  modified 


710  THE   JUDICIAL   DEPARTMENT.  [CIIAP.  VI. 

afterwards  if,  upon  experience,  it  was  found  that  further  provisions 
were  necessary  to  protect  the  public  interest;  and  no  such  contract 
can  be  inijilied  from  the  law,  nor  can  this  court  inquire  whether  the 
law  operated  hardly  or  unjustly  upon  the  parties  whose  suits  were 
then  pending.  That  was  a  question  for  the  consideration  of  the 
legislature.  They  might  have  repealed  the  prior  law  altogether, 
and  put  an  end  to  the  jurisdiction  of  their  courts  in  suits  against  the 
State,  if  they  had  thought  proper  to  do  so,  or  prescribe  new  condi- 
tions upon  which  the  suits  might  still  be  allowed  to  proceed.  In 
exercising  this  power  the  State  violated  no  contract  with  the  par- 
ties." The  same  doctrine  was  held  in  Eailroad  Company  v.  Ten- 
nessee, 101  U.  S.  337,  339;  Kailroad  Company  v.  Alabama,  101 
U.   S.  832;  and  In  re  Ayers,  123  U.  S.  443,   505. 

But  besides  the  presumption  that  no  anomalous  and  unheard-of 
proceedings  or  suits  were  intended  to  be  raised  up  by  the  Constitu- 
tion—  anomalous  and  unheard-of  when  the  Constitution  was  adopted 
—  an  additional  reason  why  the  jurisdiction  claimed  for  the  Circuit 
Court  does  not  exist,  is  the  language  of  the  act  of  Congress  by 
which  its  jurisdiction  is  conferred.  The  words  are  these:  "The 
Circuit  Courts  of  the  United  States  shall  have  original  cognizance, 
concurrent  with  the  courts  of  the  several  States,  of  all  suits  of  a 
civil  nature  at  common  law  or  in  equity,  .  .  .  arising  under  the 
Constitution  or  laws  of  the  United  States,  or  treaties,"  &c.,  "con- 
current with  the  courts  of  the  several  States."  Does  not  this  quali- 
fication show  that  Congress,  in  legislating  to  carry  the  Constitution 
into  effect,  did  not  intend  to  invest  its  courts  with  any  new  and 
strange  jurisdictions  ?  The  State  courts  have  no  power  to  enter- 
tain suits  by  individuals  against  a  State  without  its  consent.  Then 
how  does  the  Circuit  Court,  having  only  concurrent  jurisdiction, 
acquire  any  such  power  ?  It  is  true  that  the  same  qualification  ex- 
isted in  the  judiciary  act  of  1789,  which  was  before  the  court  in 
Chisholm  v.  Georgia,  and  the  majority  of  the  court  did  not  think 
that  it  was  sufficient  to  limit  the  jurisdiction  of  the  Circuit  Court. 
Justice  Iredell  thought  differently.  In  view  of  the  manner  in  which 
that  decision  was  received  by  the  country,  the  adoption  of  tlie 
Eleventh  Amendment,  the  light  of  history  and  the  reason  of  the 
thing,  we  think  we  are  at  liberty  to  prefer  Justice  Iredell's  views  in 
this  regard. 

Some  reliance  is  placed  by  the  plaintiff  upon  the  observations  of 
Chief  Justice  Marshall,  in  Cohens  v.  Virginia,  6  Wheat.  264,  410. 
The  Chief  Justice  was  there  considering  the  power  of  review  exer- 
cisable by  this  court  over  the  judgments  of  a  State  court,  wherein  it 
might  be  necessary  to  make  the  State  itself  a  defendant  in  error. 
He  showed  that  this  power  was  absolutely  necessary  in  order  to 
enable  the  judiciary  of  the  United  States  to  take  cognizance  of  all 
cases  arising  under  the  Constitution  and  laws  of  the  United  States. 
He  also  showed  that  making  a  State  a  defendant  in  error  was  entirely 


SECT.  I.  d.  4.]  HANS    V.   LOUISIANA.  711 

different  from  suing  a  State  in  an  original  action  in  prosecution  of  a 
demand  against  it,  and  was  net  within  tlie  meaning  of  the  Eleventh 
Amendment;  that  the  prosecution  of  a  writ  of  error  against  a  State 
was  not  the  prosecution  of  a  suit  in  the  sense  of  that  amendment, 
which  had  reference  to  the  prosecution,  by  suit,  of  claims  against  a 
State.  "Where,"  said  the  Chief  Justice,  "a  State  obtains  a  judg- 
ment against  an  individual,  and  the  court  rendering  such  judgment 
overrules  a  defence  set  up  under  the  Constitution  or  laws  of  the 
United  States,  the  transfer  of  this  record  into  the  Supreme  Court  for 
the  sole  purpose  of  inquiring  whether  the  judgment  violates  the 
Constitution  or  laws  of  the  United  States,  can,  with  no  propriety,  we 
think,  be  denominated  a  suit  commenced  or  prosecuted  against  the 
State  whose  judgment  is  so  far  re-examined.  Nothing  is  demanded 
from  the  State.  No  claim  against  it  of  any  description  is  asserted  or 
prosecuted.  The  party  is  not  to  be  restored  to  the  possession  of  any- 
thing. .  .  .  He  only  asserts  the  constitutional  right  to  have  his  de- 
fence examined  by  that  tribunal  whose  province  it  is  to  construe  the 
Constitution  and  laws  of  the  Union.  .  .  .  The  point  of  view  in 
which  this  writ  of  error,  with  its  citation,  has  been  considered  uni- 
formly in  the  courts  of  the  Union  has  been  well  illustrated  by  a 
reference  to  the  course  of  this  court  in  suits  instituted  by  the  United 
States.  The  universally  received  opinion  is  that  no  suit  can  be 
commenced  or  prosecuted  against  the  United  States;  that  the  judi- 
ciary act  does  not  authorize  such  suits.  Yet  writs  of  error,  accom- 
panied with  citations,  have  uniformly  issued  for  the  removal  of 
judgments  in  favor  of  the  United  States  into  a  superior  court,  .  .  . 
It  has  never  been  suggested  that  such  writ  of  error  was  a  suit 
against  the  United  States,  and,  therefore,  not  within  the  jurisdiction 
of  the  appellate  court." 

After  thus  showing  by  incontestable  argument  that  a  writ  of  error 
to  a  judgment  recovered  by  a  State,  in  which  the  State  is  necessarily 
the  defendant  in  error,  is  not  a  suit  commenced  or  prosecuted  against 
a  State  in  the  sense  of  the  amendment,  he  added,  that  if  the  court 
were  mistaken  in  this,  its  error  did  not  affect  that  case,  because  the 
writ  of  error  therein  was  not  prosecuted  by  "a  citizen  of  another 
State"  or  "of  any  foreign  State,"  and  so  was  not  affected  by  the 
amendment;  but  was  governed  by  the  general  grant  of  judicial 
power,  as  extending  "to  all  cases  arising  under  the  Constitution  or 
laws  of  the  United  States,  without  respect  to  parties."     p.  412. 

It  must  be  conceded  that  the  last  observation  of  the  Chief  Justice 
does  favor  the  argument  of  the  plaintiff.  But  the  observation  was 
unnecessary  to  the  decision,  and  in  that  sense  extrajudicial,  and 
though  made  by  one  who  seldom  used  words  without  due  reflection, 
ought  not  to  outweigh  the  important  considerations  referred  to 
which  lead  to  a  different  conclusion.  With  regard  to  the  question 
then  before  the  court,  it  may  be  observed,  t)iat  writs  of  error  to  judg- 
ments in  favor  of  the  crown,  or  of  the  State,  had  been  known  to 


712  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

the  law  from  time  immemorial;  and  had  never  been  considered 
as  exceptions  to  the  rule,  that  an  action  does  not  lie  against  the 
sovereign. 

To  avoid  misapprehension  it  may  be  proper  to  add  that,  although 
the  obligations  of  a  State  rest  for  their  performance  upon  its  honor 
and  good  faith,  and  cannot  be  made  the  subjects  of  judicial  cogni- 
zance unless  the  State  consents  to  be  sued,  or  comes  itself  into 
court;  yet  where  property  or  rights  are  enjoyed  under  a  grant  or 
contract  made  by  a  State,  they  cannot  wantonly  be  invaded.  While 
the  State  cannot  be  compelled  by  suit  to  perform  its  contracts,  any 
attempt  on  its  part  to  violate  property  or  rights  acquired  under  its 
contracts,  may  be  judicially  resisted;  and  any  law  impairing  the 
obligation  of  contracts  under  which  such  property  or  rights  are  held 
is  void  and  powerless  to  affect  their  enjoyment. 

It  is  not  necessary  that  we  should  enter  upon  an  examination  of 
the  reason  or  expediency  of  the  rule  which  exempts  a  sovereign  State 
from  prosecution  in  a  court  of  justice  at  the  suit  of  individuals. 
This  is  fully  discussed  by  writers  on  public  law.  It  is  enough  for 
us  to  declare  its  existence.  The  legislative  department  of  a  State 
represents  its  polity  and  its  will;  and  is  called  upon  by  the  highest 
demands  of  na.tural  and  political  law  to  preserve  justice  and  judg- 
ment, and  to  hold  inviolate  the  public  obligations.  Any  departure 
from  this  rule,  except  for  reasons  most  cogent  (of  which  the  legisla- 
ture, and  not  the  courts,  is  the  judge),  never  fails  in  the  end  to 
incur  the  odium  of  the  world,  and  to  bring  lasting  injury  upon  the 
State  itself.  But  to  deprive  the  legislature  of  the  power  of  judging 
what  the  honor  and  safety  of  the  State  may  require,  even  at  the  ex- 
pense of  a  temporary  failure  to  discharge  the  public  debts,  would  be 
attended  with  greater  evils  than  such  failure  can  cause. 

The  judgment  of  the  Circuit  Court  is  Affirmed. 

Mr.  Justice  Harlan  concurring. 

I  concur  with  the  court  in  holding  that  a  suit  directly  against  a 
State  by  one  of  its  own  citizens  is  not  one  to  which  the  judicial 
power  of  the  United  States  extends,  unless  the  State  itself  consents 
to  be  sued.  Upon  this  ground  alone  I  assent  to  the  judgment.  But 
I  cannot  give  my  assent  to  many  things  said  in  the  opinion.  Q'he 
comments  made  upon  the  decision  in  Chisholm  v.  Georgia  do  not 
meet  my  approval.  They  are  not  necessary  to  the  determination  of 
the  present  case.  Besides,  I  am  of  opinion  that  the  decision  in  that 
case  was  based  upon  a  sound  interpretation  of  the  Constitution  as 
that  instrument  then  was. 


SECT.    I.  d.  4.]       SOUTH    DAKOTA   V.   NORTH    CAROLINA.  713 

SOUTH   DAKOTA  v.   NORTH   CAROLINA 

192  U.  S.  286,  24  Sup.  Ct.  Rep.  269.     190i. 

[Bonds  of  the  State  of  North  Carolina  specifically  secured  by- 
shares  of  railroad  stock  belonging  to  that  State  were  donated 
by  their  owner  to  the  State  of  South  Dakota  in  pursuance  of  a 
statute  of  the  latter  State  which  authorized  the  Governor  thereof 
to  receive  and  accept  gifts  and  donations,  to  the  end  that  the  same 
might  be  covered  into  the  public  treasury.  The  statute  provided 
for  action  by  the  State  to  protect  or  assert  the  right  or  title  of  the 
State  to  any  property  so  received  or  to  collect  any  bond,  etc.  In 
pursuance  of  this  authority  an  original  action  was  brought  in  the 
Supreme  Court  of  the  United  States  by  the  State  of  South  Dakota, 
through  its  Attorney  General,  against  the  State  of  North  Carolina 
to  recover  judgment  on  the  bonds  and  subject  the  railroad  stock  as 
security  to  the  payment  thereof.] 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

[After  holding  the  bonds  to  be  valid  obligations  of  the  State  of 
North  Carolina  secured  by  lien  on  the  railroad  stock  held  by  it,  the 
opinion  proceeds.] 

Neither  can  there  be  any  question  respecting  the  title  of  South 
Dakota  to  these  bonds.  They  are  not  held  by  the  State  as  repre- 
sentative of  individual  owners,  as  in  the  case  of  New  Hampshire  v. 
Louisiana,  108  U.  S.  76,  for  they  were  given  outright  and  absolutely 
to  the  State.  It  is  true  that  the  gift  may  be  considered  a  rare  and 
unexpected  one.  Apparently  the  statute  of  South  Dakota  was  passed 
in  view  of  the  expected  gift,  and  probably  the  donor  made  the  gift 
under  a  not  unreasonable  expectation  that  South  Dakota  would  bring 
an  action  against  North  Carolina  to  enforce  these  bonds,  and  that 
such  action  might  enure  to  his  benefit  as  the  owner  of  other  like 
bonds.  But  the  motive  with  which  a  gift  is  made  whether  good  or 
bad,  does  not  affect  its  validity  or  the  question  of  jurisdiction. 

Coming  now  to  the  right  of  South  Dakota  to  maintain  this  suit 
against  North  Carolina,  we  remark  that  it  is  a  controversy  between 
two  States;  that  by  sec.  2,  art.  Ill,  of  the  Constitution  this  court  is 
given  original  jurisdiction  of  "  controversies  between  two  or  more 
States."  In  Missouri  v.  Illinois  and  the  Sanitary  District  of  Chicago, 
180  U.  S.  208,  Mr.  Justice  Shiras,  speaking  for  the  court,  reviewed 
at  length  the  history  of  the  incorporation  of  the  provision  into  the 
Federal  Constitution  and  the  decisions  rendered  by  this  court  in 
respect  to  such  jurisdiction,  closing  with  these  words  (p.  240)  : 

"The  cases  cited  show  that  such  jurisdiction  has  been  exercised 
in  cases  involving  boundaries  and  jurisdiction  over  lauds  and  their 


714  THE   JUDICIAL   DEPARTMENT.  [CHAP.    VI. 

inhabitants,  and  in  cases  directly  affecting  the  property  rights  and 
interests  of  a  State."  The  present  case  is  one  "  directly  affecting  the 
property  rights  and  interests  of  a  State." 

We  are  not  unmindful  of  the  fact  that  in  Hans  v.  Louisiana, 
134  U.  S.  1  [702],  Mr.  Justice  Bradley,  delivering  the  opinion  of 
the  court,  expressed  his  concurrence  in  the  views  announced  by 
Mr.  Justice  Iredell,  in  the  dissenting  opinion  in  Chisholm  v.  Georgia, 
but  such  expression  cannot  be  considered  as  a  judgment  of  the  court, 
for  the  point  decided  was  that,  construing  the  Eleventh  Amend- 
ment according  to  its  spirit  rather  than  by  its  letter,  a  State  was 
relieved  from  liability  to  suit  at  the  instance  of  an  individual, 
whether  one  of  its  own  citizens  or  a  citizen  of  a  foreign  State.  With- 
out noticing  in  detail  the  other  cases  referred  to  by  Mr.  Justice 
Shiras  in  Missouri  v.  Illinois  et  al,  supra,  it  is  enough  to  say  that 
the  clear  import  of  the  decisions  of  this  court  from  the  beginning 
to  the  present  time  is  in  favor  of  its  jurisdiction  over  an  action 
brought  by  one  State  against  another  to  enforce  a  property  right. 
Chisholm  v.  Georgia  was  an  action  of  assumpsit.  United  States  v. 
North  Carolina  an  action  of  debt,  United  States  v.  Michigan  a  suit 
for  an  accounting,  and  that  which  was  sought  in  each  was  a  money 
judgment  against  the  defendant  State. 

We  have,  then,  on  the  one  hand  the  general  language  of  the  Con- 
stitution vesting  jurisdiction  in  this  court  over  "controversies  be- 
tween two  or  more  States,"  the  history  of  that  jurisdictional  clause 
in  the  convention,  the  cases  of  Chisholm  v.  Georgia  [2  Dallas 
(U.  S.),  419],  United  States  v.  North  Carolina  [136  U.  S.  211] 
and  United  States  v.  Michigan  [190  U.  S.  379]  (in  which  this 
court  sustained  jurisdiction  over  actions  to  recover  money  from 
a  State),  the  manifest  trend  of  other  decisions,  the  necessity  of 
some  way  of  ending  controversies  between  States,  and  the  fact 
that  this  claim  for  the  payment  of  money  is  one  justiciable  in 
its  nature  ;  on  the  other,  certain  expression  of  individual  opinions 
of  justices  of  this  court,  the  difficulty  of  enforcing  a  judgment  for 
money  against  a  State,  by  reason  of  its  ordinary  lack  of  private 
property  subject  to  seizure  upon  execution,  and  the  absolute  in- 
ability of  a  court  to  compel  a  levy  of  taxes  by  the  legislature. 
Notwithstanding  the  embarrassments  which  surround  the  question 
it  is  directly  presented  and  may  have  to  be  determined  before  the 
case  is  finally  concluded,  but  for  the  present  it  is  sufficient  to  state 
the  question  with  its  difficulties. 

There  is  in  this  case  a  mortgage  of  property,  and  the  sale  of  that 
property  under  a  foreclosure  may  satisfy  the  plaintiff's  claim.  If 
that  should  be  the  result  there  would  be  no  necessity  for  a  personal 
judgment  against  the  State.  That  the  State  is  a  necessary  party  to 
the  foreclosure  of  the  mortgage  was  settled  by  Christian  v.  Atlantic 


SECT.   I.  d.  4.]       SOUTH    DAKOTA   V.   NORTH    CAROLINA.  715 

&  North  Carolina  Kailroad  Company,  133  U.  S.  233.  Equity  is 
satisfied  by  a  decree  for  a  foreclosure  and  sale  of  the  mortgaged 
property,  leaving  the  question  of  a  judgment  over  for  any  deficiency, 
to  be  determined  when,  if  ever,  it  arises.  And  surely  if,  as  we  have 
often  held,  this  court  has  jurisdiction  of  an  action  by  one  State 
against  another  to  recover  a  tract  of  land,  there  would  seem  to  be  no 
doubt  of  the  jurisdiction  of  one  to  enforce  the  delivery  of  personal 
property. 

A  decree  will,  therefore,  be  entered,  which,  after  finding  the 
amount  due  on  the  bonds  and  coupons  in  suit  to  be  twenty-seven 
thousand  four  hundred  dollars  (-•^27,400)  (no  interest  being  recover- 
able, United  States  v.  North  Carolina,  136  U.  S.  211),  and  that  the 
same  are  secured  by  one  hundred  shares  of  the  stock  of  the  North 
Carolina  Kailroad  Company,  belonging  to  the  State  of  North  Carolina, 
shall  order  that  the  said  State  of  North  Carolina  pay  said  amount 
with  costs  of  suit  to  the  State  of  South  Dakota  on  or  before  the 
1st  Monday  of  January,  1905,  and  that  in  default  of  such  payment 
an  order  of  sale  be  issued  to  the  Marshal  of  this  court,  directing  him 
to  sell  at  public  auction  all  the  interest  of  the  State  of  North  Caro- 
lina in  and  to  one  hundred  shares  of  the  capital  stock  of  the  North 
Carolina  Railroad  Company,  such  sale  to  be  made  at  the  east  front 
door  of  the  Capitol  Building  in  this  city,  public  notice  to  be  given 
of  such  sale  by  advertisements  once  a  week  for  six  weeks  in  some 
daily  paper  published  in  the  city  of  Raleigh,  North  Carolina,  and 
also  in  some  daily  paper  published  in  the  city  of  Washington. 

And  either  of  the  parties  to  this  suit  may  apply  to  the  court  upon 
the  foot  of  this  decree,  as  occasion  may  require.^ 

1  Mr.  Justice  White,  with  whom  concurred  Mr.  Chief  Justice  Fullek,  Mr. 
Justice  McKenna,  and  Mr.  Justice  Day,  dissented,  stating  his  views  in  part  as 
follows : 

"  I  take  it  to  be  an  elementary  rule  of  constitutional  construction  that  no  one  pro- 
vision of  the  Constitution  is  to  be  segregated  from  all  the  others,  and  to  be  considered 
alone,  but  that  all  the  provisions  bearing  upon  a  particular  subject  arc  to  be  brought 
into  view  and  to  be  so  interpreted  as  to  effectuate  the  great  purj^oses  of  tlie  instru- 
ment. If,  in  following  this  rule,  it  be  ioaud  that  an  asserted  construction  of  any  one 
provision  of  the  Constitution  would,  if  adopted,  neutralize  a  positive  proliibition  of 
another  provision  of  that  instrument,  then  it  results  tliat  such  asserted  construction  is 
erroneous,  since  its  enforcement  would  mean,  not  to  give  effect  to  the  Constitution, 
but  to  destroy  a  portion  thereof.  My  mind  cannot  escape  the  conclusion  that  if, 
wherever  an  individual  has  a  claim,  whether  in  contract  or  tort,  against  a  State,  he 
may,  by  transferring  it  to  another  State,  bring  into  play  the  judicial  power  of  the 
United  States  to  enforce  such  claim,  then  the  proliil)ition  contained  in  the  Eleventh 
Amendment  is  a  mere  letter,  without  spirit  and  witliont  force.  This  is  said  because 
no  escape  is  seen  from  the  conclusion  if  tlie  application  of  the  prohibition  is  to  dei)end 
solely  upon  tlie  willingness  of  tlie  creditor  of  a  State,  whether  citizen  or  alien,  to 
transfer,  and  the  docility  or  cupidity  of  another  State  in  accepting  such  transfer,  that 
the  provision  will  have  no  efficacy  whatever.  And  this  becomes  doubly  cogent  when 
the  history  of  the  Eleventh  Amendment  is  considered  and  the  purpose  of  its  adoption 
is  borne  in  mind. 

"  It  is  familiar  tliat  the  amendment  was  adopted  because  of  the  decision  of  this  court 
in  179.3,  in  Chisholin  v.  Georgia,  2  Dall.  419,  holding  that  the  grant  of  judicial  power 


716  THE    JUDICIAL    DEPARTMENT.  [CHAP.    VI. 

to  the  United  States  to  determine  controversies  between  a  State  and  a  citizen  of 
another  State  vested  authority  to  determine  a  controversy  wherein  a  citizen  of  a  State 
asserted  a  claim  against  another  State.  That  the  purpose  of  the  amendment  was  to 
remove  the  possibility  of  the  assertion  of  such  a  claim  is  aptly  showu  by  the  passage 
from  the  opinion  of  Mr.  Chief  Justice  Marshall  in  Cohens  v.  Virginia,  6  Wheat.  264, 
as  quoted  in  the  opinion  of  the  court  in  this  case,  saying  (p.  406) : 

" '  It  is  a  part  of  our  history,  that,  at  the  adoption  of  the  Constitution,  all  the  States 
were  greatly  indebted ;  and  the  apprehension  that  these  debts  might  be  ])rosecuted  in 
the  Federal  courts,  formed  a  very  serious  objection  to  that  instrument.  Suits  were 
instituted ;  and  the  court  maintained  its  jurisdiction.  The  alarm  was  general ;  and, 
to  quiet  the  apprehensions  that  were  so  extensively  entertained,  this  amendment  was 
proposed  in  Congress,  and  adopted  by  the  State  legislatures.' 

"  As  the  purpose  of  the  amendment  was  to  prohibit  the  enforcement  of  individual 
claims  against  the  several  States  by  means  of  the  judicial  power  of  the  United  States, 
and  as  the  amendment  was  subsequent  to  the  grant  of  judicial  power  made  by  tlie 
Constitution,  the  amendment  qualified  the  whole  grant  of  judicial  power  to  the  extent 
necessary  to  render  it  impossible  by  indirection  to  escape  the  operation  of  the  avowed 
purpose  which  tiie  people  of  the  United  States  expressed  in  adopting  the  amendment. 
How,  as  declared  by  Chief  Justice  Marsliall,  could  the  adoption  of  the  amendment 
have  quieted  the  apprehensions  concerning  the  right  to  enforce  private  claims  against 
the  States,  if  the  power  was  left  open  after  the  amendment  to  do  so,  if  only  they  were 
transferred  to  another  State?  It  is  also  to  be  observed  that  the  construction  now  given 
causes  the  judicial  power  of  the  United  States  to  embrace  claims  not  within  even  the 
reach  of  the  ruling  in  Chisholm  v.  Georgia,  for  that  case  only  decided  that  under  the 
grant  of  power  a  citizen  of  one  State  might  sue  another  State.  But  under  the  rule  of 
construction,  now  announced,  not  only  claims  held  by  citizens  of  other  States  and 
aliens,  but  those  held  by  a  citizen  of  the  State,  become  capable  of  enforcement,  if  only 
the  holders  of  such  claims,  after  the  State  has  refused  to  pay  them,  choose  to  sell  or 
make  gift  thereof  to  another  State  found  willing  to  become  a  party  to  a  plan  to  evade 
a  constitutional  provision  inserted  for  the  protection  of  all  the  States. 

"It  is  true  that  the  greater  number  of  cases  decided  by  this  court  concerning  the 
right  to  enforce  a  private  claim  against  a  State  concerned  controversies  where  suit  was 
brought  by  citizens  of  other  States  or  aliens,  who  were  therefore  persons  expressly 
witliin  tlie  terms  of  the  Eleventh  Amendment.  An  analysis  of  those  cases,  however, 
will  show  that  they  were  decided,  not  upon  the  mere  ground  that  the  person  who  sued 
was  within  the  Eleventh  Amendment,  but  upon  the  broad  proposition  that,  by  tlie 
effect  of  that  amendment,  claims  of  private  individuals  could  not  be  enforced  against 
a  State,  and  that  in  upholding  this  constitutional  limitation  the  court  would  look  at  the 
real  nature  of  tlie  controversy,  irrespective  of  the  parties  on  the  record.  If  it  were 
found  by  doing  so  that  in  effect  tlie  consequence  of  the  granting  of  the  relief  would  be 
to  enforce  by  the  Federal  judicial  power  the  claim  of  a  private  individual  against  a 
State,  such  relief  would  be  denied.  I  content  myself  with  the  reference  in  the  margin 
to  the  leading  cases  of  this  character,  and  come  at  once  to  consider  the  adjudications 
of  this  court  rendered  in  two  cases  winch  directly  related  to  the  operation  of  the  pro- 
hibitions of  the  Eleventh  Amendment  on  tlie  grant  of  judicial  power  to  the  United 
States  over  controversies  between  States,  and  to  two  other  cases  which  directly  con- 
cerned the  effect  of  the  prohibitions  of  the  Eleventli  Amendment  in  suits  brought  by 
persons  who  were  within  the  grant  of  the  judicial  power  but  were  not  embraced  within 
the  category  of  persons  specifically  referred  to  in  tiie  Eleventh  Amendment.  The  first 
two  cases  referred  to  are  New  Hampshire  v.  Louisiana  and  New  York  r.  Louisiana. 
The  opinion  of  the  court  in  both  was  delivered  by  Mr.  Chief  Justice  Waite,  and  is 
reported  (1883)  in  108  U.  S.  76.  The  suits  were  originally  brought  in  this  court.  The 
complainants  were,  in  the  one  case,  the  State  of  New  Hampshire,  and  in  the  other  the 
State  of  New  York  ;  the  principal  defendant  in  both  cases  being  the  State  of  Louisiana. 
The  complainant  States  asserted  the  right  to  enforce  certain  pecuniary  claims  against 
the  State  of  Louisiana,  as  the  holders  of  the  naked  legal  title  to  certain  coupons  and 


SECT.    I.  d.  4.]       SOUTH    DAKOTA   V.   NORTH    CAROLINA.  717 

bonds  of  the  State  of  Louisiana,  which,  pursuant  to  lef^islative  authority,  by  assign- 
ment, had  been  ac<[uired  from  citizens  of  the  respective  States,  for  the  purpose  of 
collection  for  the  benefit  of  such  citizens.  The  defendant  State  challenged  the  juris- 
diction of  this  court  over  the  controversy.  To  sustain  such  jurisdiction  it  was  pressed 
by  the  complainant  that  the  bonds  and  coupons  were  negotiable  instruments,  of  wliich 
the  assignee  States  became  the  legal  owners,  and  that  as  such  they  as  a  matter  of  law 
were  the  real  parties  in  interest,  whether  the  transfer  was  a  complete  sale  or  merely 
made  for  the  purpose  of  collection  for  the  benefit  of  the  assignors.  The  court  first 
considered  the  grant  of  judicial  power  to  the  United  States  prior  to  the  adoption  of  the 
Eleventh  Amendment  and  lield  that  as  such  power,  when  originally  conferred,  as  in- 
terpreted in  Chisholm  v.  Georgia,  embraced  the  right  of  a  citizen  of  one  State  to  enforce 
his  claims  by  suit  directly  against  another  State,  a  State  could  not,  as  the  holder  of 
the  legal  title,  champion  for  its  citizens  a  riglit  for  the  prosecution  of  which  a  particu- 
lar remedy  had  been  provided  by  the  Constitution.  Coming  to  generally  consider  tlie 
effect  of  the  Eleventh  Amendment  as  elucidated  by  the  history  connected  with  its 
adoption,  it  was  decided  that  as  that  amendment  had  expressly  taken  away  the  right 
of  a  citizen  of  one  State  to  sue  another  State,  a  State  could  not  enforce  a  right  the 
assertion  of  which  in  tlie  courts  was  prohibited  to  the  citizen  himself.  Noticing  the 
contention  that  the  grant  of  judicial  power  over  controversies  between  States  was  but 
a  substitute  for  the  surrender  to  the  national  government  which  each  State  had  made, 
of  the  power  of  prosecuting  against  another  State,  by  force  if  necessary  as  a  sovereign 
trustee  for  its  citizens,  the  claims  of  such  citizens,  the  proposition  was  held  not  to  be 
sustainable,  under  the  Constitution  of  the  United  States.  It  was  decided  that  the 
special  remedy  originally  granted  to  the  citizen  himself  '  must  be  deemed  to  have  been 
the  only  remedy  the  citizen  of  one  State  could  have  under  the  Constitution  against 
another  State  for  the  redress  of  his  grievances,  except  such  as  the  delinquent  State  saw 
fit  itself  to  grant.'  Having  announced  this  doctrine,  it  was  then,  as  an  inevitable  de- 
duction from  it  decided  that,  as  the  Eleventh  Amendment  had  taken  away  tlie  special 
remedy  originally  provided  by  the  Constitution,  tliere  was  no  other  remedy  wliatever 
left.     The  opinion  of  the  court  concluded  as  follows  (p.  91)  : 

"  '  The  evident  purpose  of  the  amendment,  so  promptly  proposed  and  finally  adopted, 
was  to  prohibit  all  suits  against  a  State  by  or  for  citizens  of  otlier  States,  or  aliens, 
without  the  consent  of  the  State  to  be  sued  and,  in  our  opinion,  one  State  cannot  create 
a  controversy  with  another  State,  within  the  meaning  of  that  term  as  used  in  the  ju- 
dicial clauses  of  the  Constitution,  by  assuming  the  prosecution  of  debts  owing  by  the 
other  State  to  its  citizens.  Such  being  the  case  we  are  satisfied  that  we  are  prohibited, 
both  by  the  letter  and  the  spirit  of  the  Constitution,  from  entertaining  these  suits,  and 
the  bill  in  each  case  is  dismissed.' " 


718  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

KAILKOAD   COMPANY  v.   TENNESSEE. 

101  United  States,  337.     1879. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

On  the  19th  of  January,  1838,  the  State  of  Tennessee  established 
a  bank  in  its  own  name  and  for  its  own  benefit,  and  pledged  its  faith 
and  credit  to  give  indemnity  for  all  losses  arising  from  any  deficiency 
in  the  funds  specifically  appropriated  as  capital.  The  State  was  the 
only  stockholder,  and  entitled  to  all  the  profits  of  the  business.  The 
bank  was  by  its  charter  capable  of  suing  and  being  sued.  At  that 
time  the  Constitution  of  the  State  contained  this  provision:  "Suits 
may  be  brought  against  the  State  in  such  manner  and  in  such  courts 
as  the  legislature  may  by  law  direct."  Art.  1,  sect.  17.  No  law 
had  then  been  passed  giving  effect  to  this  express  grant  of  power, 
but  in  1855  it  was  enacted  that  actions  might  be  instituted  against 
the  State  under  the  same  rules  and  regulations  that  govern  actions 
between  private  citizens,  process  being  served  on  the  district  attorney 
of  the  district  in  which  the  suit  was  instituted.  Code,  sect.  2807. 
No  power  was  given  the  courts  to  enforce  their  judgments,  and  the 
money  could  only  be  got  through  an  appropriation  by  the  legislature. 

In  1865  this  law  was  repealed,  and  after  that  there  was  no  law 
prescribing  the  manner  or  the  courts  in  which  suits  could  be  brought 
against  the  State.  On  the  16th  of  February,  1866,  an  act  was  passed 
to  wind  up  and  settle  the  affairs  of  the  bank,  under  which  an  assign- 
ment of  all  the  property  was  made  to  Samuel  Watson,  trustee. 
Afterwards,  on  the  16th  of  May,  1866,  the  State  and  the  trustee  filed 
a  bill  in  equity,  in  the  Chancery  Court  at  Nashville,  against  the  bank 
and  its  creditors,  for  an  account  of  debts  and  assets  and  a  decree 
of  distribution.  At  the  November  Term,  1872,  of  the  court,  the 
Memphis  and  Charlestown  Kailroad  Company  was  admitted  as  a 
defendant  to  this  suit,  and  given  leave  to  file  a  cross-bill.  This  cross- 
bill was  accordingly  filed,  and  set  forth  an  indebtedness  from  the 
bank  to  the  railroad  company,  which  accrued  while  the  law  allowing 
suits  against  the  State  was  in  existence,  and  sought  to  enforce  the 
liability  of  the  State  under  the  indemnity  clause  of  the  charter.  To 
this  bill  both  the  State  and  Watson,  the  trustee,  demurred,  and 
assigned  for  cause,  among  others,  that  the  State  could  not  be  sued. 
The° demurrer  was  sustained  by  the  Chancery  Court,  and  the  cross- 
bill dismissed.  An  appeal  was  then  taken  to  the  Supreme  Court  of 
the  State,  where  the  decree  below  was  affirmed,  upon  the  express 
ground  that  the  repeal  of  the  law  authorizing  suits  against  the  State 
was  valid,  and  did  not  impair  the  obligation  of  the  contract  which 
the  railroad  company  had.  All  other  questions  were  waived  by  the 
court,  and  the  decision  placed  entirely  on  the  ground  that  as  the 


SECT.  I.  d.  4.]        RAILROAD    COMPANY   V.   TENNESSEE.  719 

State  could  not  be  sued  in  its  own  courts,  the  bill  must  be  dismissed. 
To  reverse  that  judgment  this  writ  of  error  was  brought. 

The  question  we  have  to  decide  is  not  whether  the  State  is  liable 
for  the  debts  of  the  bank  to  the  railroad  company,  but  whether  it 
can  be  sued  in  its  own  courts  to  enforce  that  liability.  The  principle 
is  elementary  that  a  State  cannot  be  sued  in  its  own  courts  without 
its  consent.  This  is  a  privilege  of  sovereignty.  It  is  conceded  that 
when  this  suit  was  begun  the  State  had  withdrawn  its  consent  to  be 
sued,  and  the  only  question  now  to  be  determined  is  whether  that 
withdrawal  impaired  the  obligation  of  the  contract  which  the  railroad 
company  seeks  to  enforce.  If  it  did,  it  was  inoperative,  so  far  as 
tliis  suit  is  concerned,  and  the  original  consent  remains  in  full  force, 
for  all  the  purposes  of  the  particular  contract  or  liability  here 
involved. 

The  remedy,  which  is  protected  by  the  contract  clause  of  the  Con- 
stitution, is  something  more  than  the  privilege  of  having  a  claim 
adjudicated.  Mere  judicial  inquiry  into  the  rights  of  parties  is  not 
enough.  There  must  be  the  power  to  enforce  the  results  of  such  an 
inquiry  before  there  can  be  said  to  be  a  remedy  which  the  Constitu- 
tion deems  part  of  a  contract.  Inquiry  is  one  thing;  remedy  an- 
other. Adjudication  is  of  no  value  as  a  remedy  unless  enforcement 
follows.  It  is  of  no  practical  importance  that  a  right  has  been  estab- 
lished if  the  right  is  no  more  available  afterwards  than  before.  The 
Constitution  preserves  only  such  remedies  as  are  required  to  enforce 
a  contract. 

Here  the  State  has  consented  to  be  sued  only  for  the  purposes  of 
adjudication.  The  power  of  the  courts  ended  when  the  judgment 
was  rendered.  In  effect,  all  that  has  been  done  is  to  give  persons 
holding  claims  against  the  State  the  privilege  of  having  tliem  audited 
by  the  courts  instead  of  some  appropriate  accounting  officer.  When 
a  judgment  has  been  rendered,  the  liability  of  the  State  has  been 
judicially  ascertained,  but  there  the  power  of  the  court  ends.  The 
State  is  at  liberty  to  determine  for  itself  whether  to  pay  the  judg- 
ment or  not.  The  obligations  of  the  contract  have  been  finally 
determined,  but  the  claimant  has  still  only  the  faith  and  credit  of  the 
State  to  rely  on  for  their  fulfilment.  The  courts  are  powerless. 
Everything  after  the  judgment  depends  on  the  will  of  the  State.  It 
is  needless  to  say  that  there  is  no  remedy  to  enforce  a  contract  if 
performance  is  left  to  the  will  of  him  on  whom  the  obligation  to 
perform  rests.  A  remedy  is  only  wanted  after  entreaty  is  ended. 
Consequently,  that  is  not  a  remedy  in  the  legal  sense  of  the  term, 
which  can  only  be  carried  into  effect  by  entreaty. 

It  is  clear,  therefore,  that  the  right  to  sue,  which  the  State  of 
Tennessee  once  gave  its  creditors,  was  not,  in  legal  effect,  a  judicial 
remedy  for  the  enforcement  of  its  contracts,  and  that  the  obligations 
of  its  contracts  were  not  impaired,  within  the  meaning  of  the  pro- 
hibitory clause  of  the  Constitution  of  the  United  States,  by  taking 


720  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

away  what  was  thus  given.  This  renders  it  unnecessary  to  consider 
whether  in  this  suit  a  cross-bill  could  have  been  maintained  by  the 
railroad  company  if  the  right  to  sue  had  been  continued,  and  also 
whether  a  remedy  given  after  the  charter  of  the  bank  was  granted, 
but  in  force  when  the  debt  of  the  bank  was  incurred,  might  be  taken 
away  without  impairing  the  obligation  of  the  contract  of  the  State  to 
indemnify  the  creditors  against  loss  by  reason  of  any  deficiency  in 
the  capital.  Neither  do  we  find  it  necessary  to  determine  what 
would  be  a  complete  judicial  remedy  against  a  State,  nor  whether,  if 
such  a  remedy  had  been  given,  the  obligation  of  a  contract  entered 
into  by  the  State  when  it  was  in  existence  would  be  impaired  by 
taking  it  away.  What  we  do  decide  is  that  no  such  remedy  was 
given  in  this  case.  Judgment  affirmed. 

Mr.  Justice  Swayke  and  Mr.  Justice  Strong  dissented. 


5.   Suits  against  Officers,  Agents,  or  Agencies  of  the  United  States 

or  a  State. 

UNITED   STATES   v.   LEE. 
106  United  States,  196.     1882. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

These  are  two  writs  of  error  to  the  same  judgment :  one  prosecuted 
by  the  United  States,  eo  nomine;  and  the  other  by  the  Attorney- 
General  of  the  United  States,  in  the  names  of  Frederick  Kaufman 
and  Richard  P.  Strong,  the  defendants  against  whom  judgment  was 
rendered  in  the  Circuit  Court. 

The  action  was  originally  commenced  in  the  Circuit  Court  for  the 
county  of  Alexandria,  in  the  State  of  Virginia,  by  the  present  de- 
fendant  in  error,  against  Kaufman  and  Strong  and  a  great  number 
of  others,  to  recover  possession  of  a  parcel  of  land  of  about  eleven 
hundred  acres,  known  as  the  Arlington  estate.  It  was  an  action  of 
ejectment  in  the  form  prescribed  by  the  statutes  of  Virginia,  under 
which  the  pleadings  are  in  the  names  of  the  real  parties,  plaintiff 
and  defendant. 

[It  is  suggested  in  the  opinion  that  the  question  whether  the 
United  States  can  prosecute  a  writ  of  error  in  the  case,  in  view  of 
the  fact  that  it  is  not  a  party,  is  immaterial,  as  Kaufman  and  Strong 
bring  up  for  review  the  judgment  against  them,  and  the  objections  to 
the  action  of  the  lower  court  are  thus  properly  raised.  The  title  set 
up  in  behalf  of  the  United  States  is  then  considered,  and  it  is  found 
that  the  proceedings  relied  upon  as  divesting  the  title  of  the  former 
owners  of  the  Arlington  estate,  under  whom  plaintiff  in  the  lower 
court  claimed  the  property,  were  invalid,  and  that  the  jury  were  jus- 


SECT.  I.  d.  5.]  UNITED   STATES   V.   LEE.  721 

tified  in  finding,  as  they  did,  that  the  United  States  acquired  no  title. 
The  Court  states  the  remaining  question  in  the  case  as  follows: 
Could  any  action  be  maintained  against  the  defendants  for  the  pos- 
session of  the  land  in  controversy  under  the  circumstances  of  the 
relation  of  that  possession  to  tlie  United  States,  however  clear  the 
legal  right  to  that  possession  might  be  in  the  plaintiif  ?J 

In  approaching  the  other  question  which  we  are  called  on  to  decide, 
it  is  proper  to  make  a  clear  statement  of  what  it  is. 

The  counsel  for  plaintiffs  in  error  and  in  behalf  of  the  United  States 
assert  the  proposition,  that  though  it  has  been  ascertained  by  the 
verdict  of  the  jury,  in  which  no  error  is  found,  that  the  plaintiff  has 
the  title  to  the  land  in  controversy,  and  that  what  is  set  up  in  behalf 
of  the  United  States  is  no  title  at  all,  the  court  can  render  no  jvidg- 
ment  in  favor  of  the  plaintiff  against  the  defendants  in  the  action, 
because  the  latter  hold  the  property  as  officers  and  agents  of  the 
United  States,  and  it  is  appropriated  to  lawful  public  uses. 

This  proposition  rests  on  the  principle  that  the  United  States  can- 
not be  lawfully  sued  without  its  consent  in  any  ease,  and  that  no 
action  can  be  maintained  against  any  individual  without  such  con- 
sent, where  the  judgment  must  depend  on  the  right  of  the  United 
States  to  property  held  by  such  persons  as  officers  or  agents  for  the 
government. 

The  first  branch  of  this  proposition  is  conceded  to  be  the  estab- 
lished law  of  this  countr}^  and  of  this  court  at  the  present  day ;  the 
second,  as  a  necessary  or  proper  deduction  from  the  first,  is  denied. 

In  order  to  decide  whether  the  inference  is  justified  from  what  is 
conceded,  it  is  necessary  to  ascertain,  if  we  can,  on  what  principle  the 
exemption  of  the  United  States  from  a  suit  by  one  of  its  citizens  is 
founded,  and  what  limitations  surround  this  exemption.  In  this,  as 
in  most  other  cases  of  like  character,  it  will  be  found  that  the  doc- 
trine is  derived  from  the  laws  and  practices  of  our  English  ancestors ; 
and  while  it  is  beyond  question  that  from  the  time  of  Edward  the 
First  until  now  the  King  of  England  was  not  suable  in  the  courts  of 
that  country,  except  where  his  consent  had  been  given  on  petition  of 
right,  it  is  a  matter  of  great  uncertainty  whether  prior  to  that  time 
he  was  not  suable  in  his  own  courts  and  in  his  kingly  character  as 
other  persons  were.  We  have  the  authority  of  Chief  Baron  Comyns, 
1  Digest,  132,  Action,  C.  1,  and  6  Digest,  G7,  Prerogative  ;  and  of  the 
Mirror  of  Justices,  chap.  1,  sect.  3,  and  chap.  5,  sect.  1,  that  such  was 
the  law  ;  and  of  Bracton  and  Lord  Holt,  that  the  King  never  was 
suable  of  common  right.  It  is  certain,  however,  that  after  the  estab- 
lishment of  the  petition  of  right  about  that  time  as  the  appropriate 
manner  of  seeking  relief  where  the  ascertainment  of  the  parties'  rights 
required  a  suit  against  the  King,  no  attempt  has  been  made  to  sue  the 
King  in  any  court  except  as  allowed  on  such  petition. 

It  is  believed  that  this  petition  of  right,  as  it  has  been  practised 
and  observed  in  the  administration  of  justice  in  England,  has  been  as 

46 


722  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

efficient  in  securing  the  rights  of  suitors  against  the  crown  in  all  cases 
appropriate  to  judicial  proceedings,  as  that  which  the  law  affords  to 
the  subjects  of  the  King  in  legal  controversies  among  themselves. 
"  If  the  mode  of  proceeding  to  enforce  it  be  formal  and  ceremonious, 
it  is  nevertheless  a  practical  and  efficient  remedy  for  the  invasion  by 
the  sovereign  power  of  individual  rights."  United  States  v.  O'Keefe, 
11  Wall.  178. 

There  is  in  this  country,  however,  no  such  thing  as  the  petition 
of  right,  as  there  is  no  such  thing  as  a  kingly  head  to  the  nation, 
or  to  any  of  the  States  which  compose  it.  There  is  vested  in  no 
officer  or  body  the  authority  to  consent  that  the  State  shall  be 
sued  except  in  the  law-making  power,  which  may  give  such  con- 
sent on  the  terms  it  may  choose  to  impose.  The  Davis,  10  Wall. 
15.  Congress  has  created  a  court  in  which  it  has  authorized  suits  to 
be  brought  against  the  United  States,  but  has  limited  such  suits  to 
those  arising  on  conti-act,  with  a  few  unimportant  exceptions. 

What  were  the  reasons  which  forbid  that  the  King  should  be  sued 
in  his  own  court,  and  how  do  they  apply  to  the  political  body  cor- 
porate which  we  call  the  United  States  of  America  ?  As  regards  the 
King,  one  reason  given  by  the  old  judges  was  the  absurdity  of  the 
King's  sending  a  writ  to  himself  to  command  the  King  to  appear  in 
the  King's  court.  No  such  reason  exists  in  our  government,  as  pro- 
cess runs  in  the  name  of  the  President,  and  may  be  served  on  the 
Attorney-General,  as  was  done  in  Chisholm  v.  Greorgia,  2  Dall.  419. 
Nor  can  it  be  said  that  the  dignity  of  the  government  is  degraded  by 
appearing  as  a  defendant  in  the  courts  of  its  own  creation,  because 
it  is  constantly  appearing  as  a  party  in  such  courts,  and  submitting 
its  rights  as  against  the  citizen  to  their  judgment. 

Mr.  Justice  Gray,  of  the  Supreme  Court  of  Massachusetts,  in  an 
able  and  learned  opinion  which  exhausts  the  sources  of  information 
on  this  subject,  says  :  "  The  broader  reason  is,  that  it  would  be  in- 
consistent with  the  very  idea  of  supreme  executive  power,  and  would 
endanger  the  performance  of  the  public  duties  of  the  sovereign,  to 
subject  him  to  repeated  suits  as  a  matter  of  right,  at  the  will  of  any 
citizen,  and  to  submit  to  the  judicial  tribunals  the  control  and  dispo- 
sition of  his  public  property,  his  instruments  and  means  of  carrying 
on  his  government  in  war  and  in  peace,  and  the  money  in  his  treas- 
ury." Briggs  V.  The  Light  Boats,  11  Allen  (Mass.),  157.  As  no 
person  in  this  government  exercises  supreme  executive  power,  or 
performs  the  public  duties  of  a  sovereign,  it  is  difficult  to  see  on  what 
solid  foundation  of  principle  the  exemption  from  liability  to  suit 
rests.  It  seems  most  probable  that  it  has  been  adopted  in  our  courts 
as  a  part  of  the  general  doctrine  of  pxiblicists,  that  the  supreme 
power  in  every  State,  wherever  it  may  reside,  shall  not  be  compelled, 
by  process  of  courts  of  its  own  creation,  to  defend  itself  from  as- 
saults in  those  courts. 

It  is  obvious  that  in  our  system  of  jurisprudence  the  principle  is  as 


SECT.  I.  d.  5.]  UNITED   STATES   V.   LEE.  723 

applicable  to  each  of  the  States  as  it  is  to  the  United  States,  except 
in  those  cases  where  by  the  Constitution  a  State  of  the  Union  may  be 
sued  in  this  court.  Kailroad  Company  v.  Tennessee,  101  U.  S.  337; 
Eailroad  Company  v.  Alabama,  id.  832. 

That  the  doctrine  met  with  a  doubtful  reception  in  the  early  his- 
tory of  this  court  may  be  seen  from  the  opinions  of  two  of  its  jus- 
tices in  the  case  of  Chisholm  v.  Georgia,  where  ]\Ir.  Justice  Wilson, 
a  member  of  the  convention  which  framed  our  Constitution,  after 
a  learned  examination  of  the  laws  of  England  and  other  states  and 
kingdoms,  sums  up  the  result  by  saying:  "  We  see  nothing  against, 
but  much  in  favor  of,  the  jurisdiction  of  this  court  over  the  State  of 
Georgia,  a  party  to  this  cause."  2  Dall.  461.  Chief  Justice  Jay  also 
considered  the  question  as  affected  by  the  difference  between  a  repub- 
lican State  like  ours  and  a  personal  sovereign,  and  held  that  there  is 
no  reason  why  a  State  should  not  be  sued,  though  doubting  whether 
the  United  States  would  be  subject  to  the  same  rule.     2  Dall.  78. 

The  first  recognition  of  the  general  doctrine  by  this  court  is  to  be 
found  in  the  case  of  Cohens  v.  Virginia,  6  Wheat.  380. 

The  terms  in  which  Chief  Justice  Mai-shall  there  gives  assent 
to  the  principle  does  not  add  much  to  its  force.  '"'The  counsel 
for  the  defendant,"  he  says,  ''  has  laid  down  the  general  proposition 
that  a  sovereign  independent  State  is  not  suable  except  by  its  own 
consent."  This  general  proposition,  he  adds,  will  not  be  controverted. 
And  while  the  exemption  of  the  United  States  and  of  the  several 
States  from  being  subjected  as  defendants  to  ordinary  actions  in  the 
courts  has  since  that  time  been  repeatedly  asserted  here,  the  principle 
has  never  been  discussed  or  the  reasons  for  it  given,  but  it  has  always 
been  treated  as  an  established  doctrine.  United  States  v.  Clarke, 
8  Pet.  430;  United  States  v.  McLemore,  4  How.  286;  Hill  u.  United 
States,  9  id.  386 ;  Nations  v.  Johnson,  24  id.  195 ;  The  Siren,  7  Wall. 
152  ;  The  Davis,  10  id.  15. 

On  the  other  hand,  while  acceding  to  the  general  proposition  that 
in  no  court  can  the  United  States  be  sued  directly  by  original  process 
as  a  defendant,  there  is  abundant  evidence  in  the  decisions  of  this 
court  that  the  doctrine,  if  not  absolutely  limited  to  cases  in  which  the 
United  States  are  made  defendants  by  name,  is  not  permitted  to  in- 
terfere with  the  judicial  enforcement  of  the  established  rights  of 
plaintiffs  when  the  United  States  is  not  a  defendant  or  a  necessary 
party  to  the  suit. 

The  fact  that  the  property  which  is  the  subject  of  this  controversy 
is  devoted  to  public  uses,  is  strongly  urged  as  a  reason  why  those 
who  are  so  using  it  under  the  authority  of  the  United  States  shall 
not  be  sued  for  its  possession  even  by  one  who  proves  a  clear  title  to 
that  possession.  In  this  connection  many  cases  of  imaginary  evils 
have  been  suggested,  if  the  contrary  doctrine  should  prevail.  Among 
these  are  a  supposed  seizure  of  vessels  of  war,  and  invasions  of  forts 


T24  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

and  arsenals  of  the  United  States.  Hypothetical  cases  of  great  evils 
may  be  suggested  by  a  particularly  fruitful  imagination  in  regard  to 
almost  every  law  upon  which  depend  the  rights  of  the  individual  or 
of  the  government,  and  if  the  existence  of  laws  is  to  depend  upon 
their  capacity  to  withstand  such  criticism,  the  whole  fabric  of  the  law 
must  fail. 

Looking  at  the  question  iipon  principle,  and  apart  from  the  author- 
ity of  adjudged  cases,  we  think  it  still  clearer  that  this  branch  of  the 
defence  cannot  be  maintained.  It  seems  to  be  opposed  to  all  the 
principles  upon  which  the  rights  of  the  citizen,  when  brought  in 
collision  with  the  acts  of  the  government,  must  be  determined.  In 
such  cases  there  is  no  safety  for  the  citizen,  except  in  the  protection 
of  the  judicial  tribunals,  for  rights  which  have  been  invaded  by  the 
officers  of  the  government,  professing  to  act  in  its  name.  There  re- 
mains to  him  but  the  alternative  of  resistance,  which  may  amount  to 
crime.  The  position  assumed  here  is  that,  however  clear  his  rights, 
no  remedy  can  be  affoi'ded  to  him  when  it  is  seen  that  his  opponent 
is  an  officer  of  the  United  States,  claiming  to  act  under  its  authority ; 
for,  as  Mr.  Chief  Justice  Marshall  says  [in  Osborn  v.  Bank  of 
United  States,  9  Wheat.  738],  to  examine  whether  this  authority  is 
rightfully  assumed  is  the  exercise  of  jurisdiction,  and  must  lead  to 
the  decision  of  the  merits  of  the  question.  The  objection  of  the 
plaintiffs  in  error  necessarily  forbids  any  inquiry  into  the  truth  of 
the  assumption  that  the  parties  setting  up  such  authority  are  law- 
fully possessed  of  it ;  for  the  argument  is  that  the  formal  suggestion 
of  the  existence  of  such  authority  forbids  any  inquiry  into  the  truth 
of  the  suggestion. 

But  why  should  not  the  truth  of  the  suggestion  and  the  lawfulness 
of  the  authority  be  made  the  subject  of  judicial  investigation  ? 

In  the  case  supposed,  the  court  has  before  it  a  plaintiff  capable  of 
suing,  a  defendant  who  has  no  personal  exemption  from  suit,  and  a 
cause  of  action  cognizable  in  the  court,  —  a  case  within  the  meaning 
of  that  term,  as  employed  in  the  Constitution  and  defined  by  the 
decisions  of  this  court.  It  is  to  be  presumed  in  favor  of  the  juris- 
diction of  the  court  that  the  plaintiff  may  be  able  to  prove  the  right 
which  he  asserts  in  his  declaration. 

What  is  that  right  as  established  by  the  verdict  of  the  jury  in  this 
case  ?  It  is  the  right  to  the  possession  of  the  homestead  of  plaintiff 
—  a  right  to  recover  that  which  has  been  taken  from  him  by  force  and 
violence,  and  detained  by  the  strong  hand.  This  right  being  clearly 
established,  we  are  told  that  the  court  can  proceed  no  further,  because 
it  appears  that  certain  military  officers,  acting  under  the  orders  of 
the  President,  have  seized  this  estate,  and  converted  one  part  of  it 
into  a  military  fort  and  another  into  a  cemetery. 

It  is  not  pretended,  as  the  case  now  stands,  that  the  President  had 
any  lawful  authority  to  do  this,  or  that  the  legislative  body  could 


SECT.  I.  d.  5.]  UNITED   STATES    V.   LEE.  725 

give  him  any  such  authority  except  upon  payment  of  just  compensa- 
tion. The  defence  stands  here  solely  upon  the  absolute  immunity 
from  judicial  inquiry  of  every  one  who  asserts  authority  from  the 
executive  branch  of  the  government,  however  clear  it  may  be  made 
that  the  executive  possessed  no  such  power.  Not  only  no  such  power 
is  given,  but  it  is  absolutely  prohibited,  both  to  the  executive  and 
the  legislative,  to  deprive  any  one  of  life,  liberty,  or  property  with- 
out due  process  of  law,  or  to  take  private  property  without  just 
compensation. 

These  provisions  for  the  security  of  the  rights  of  the  citizen  stand 
in  the  Constitution  in  the  same  connection  and  upon  the  same  ground, 
as  they  regard  his  liberty  and  his  property.  It  cannot  be  denied  that 
both  were  intended  to  be  enforced  by  the  judiciary  as  one  of  the  de- 
partments of  the  government  established  by  that  Constitution.  As 
we  have  already  said,  the  writ  of  habeas  corpus  has  been  often  used  to 
defend  the  liberty  of  the  citizen,  and  even  his  life,  against  the  asser- 
tion of  unlawful  authority  on  the  part  of  the  executive  and  the  legis- 
lative branches  of  the  government.  See  Ex  lyarte  Milligan,  4  Wall. 
2 ;  Kilbourn  v.  Thompson,  103  U.  S.  168. 

No~  man  in  this  country  is  so  high  that  he  is  above  the  law.  Ko 
officer  of  the  law  may  set  that  law  at  defiance  with  impunity.  All 
the  officers  of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law,  and  are  bound  to  obey  it. 

It  is  the  only  supreme  power  in  our  system  of  government,  and 
every  man  who  by  accepting  office  participates  in  its  functions  is  only 
the  more  strongly  bound  to  submit  to  that  supremacy,  and  to  observe 
the  limitations  which  it  imposes  upon  the  exercise  of  the  authority 
which  it  gives. 

Courts  of  justice  are  established,  not  only  to  decide  upon  the  con- 
troverted rights  of  the  citizens  as  against  each  other,  but  also  upon 
rights  in  controversy  between  them  and  the  government;  and  the 
docket  of  this  court  is  crowded  with  controversies  of  the  latter  class. 
Shall  it  be  said  in  the  face  of  all  this,  and  of  the  acknowledged 
right  of  the  judiciary  to  decide  in  proper  cases,  statutes  which  have 
been  passed  by  both  branches  of  Congress  and  approved  by  the  Pres- 
ident to  be  unconstitutional,  that  the  courts  cannot  give  a  remedy 
when  the  citizen  has  been  deprived  of  his  property  by  force,  his  es- 
tate seized  and  converted  to  the  use  of  the  government  witliout  lawful 
authority,  without  process  of  law,  and  without  compensation,  because 
the  President  has  ordered  it  and  his  officers  are  in  possession  ? 
If  such  be  the  law  of  this  country,  it  sanctions  a  tyranny  which  has 
no  existence  in  the  monarchies  of  Europe,  nor  in  any  other  govern- 
ment which  has  a  just  claim  to  well-regulated  liberty  and  the  protec- 
tion of  personal  rights. 

It  cannot  be,  then,  that  when,  in  a  suit  between  two  citizens  for 
the  ownership  of  real  estate,  one  of  them  has  established  his  right  to 
the  possession  of  the  property  according  to  all  the  forms  of  judicial 


726  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

procedure,  and  by  the  verdict  of  a  jury  and  the  judgment  of  the  court, 
the  wrongful  possessor  can  say  successfully  to  the  court,  "  Stop  here, 
I  hold  by  order  of  the  President,  and  the  progress  of  justice  must  be 
stayed."  That,  though  the  nature  of  the  controversy  is  one  peculiarly 
appropriate  to  the  judicial  function,  though  the  United  States  is  no 
party  to  the  suit,  though  one  of  the  three  great  branches  of  the  gov- 
ernment to  which  by  the  Constitution  this  duty  has  been  assigned 
has  declared  its  judgment  after  a  fair  trial,  the  unsuccessful  party  can 
interpose  an  altsolute  veto  upon  that  judgment  by  the  production  of 
an  order  of  the  Secretary  of  War,  which  that  oflScer  had  no  more 
authority  to  make  than  the  humblest  private  citizen. 

The  evils  supposed  to  grow  out  of  the  possible  interference  of 
judicial  action  with  the  exercise  of  powers  of  the  government  essen- 
tial to  some  of  its  most  important  operations,  will  be  seen  to  be  small 
indeed  compared  to  this  evil,  and  much  diminished,  if  they  do  not 
wholly  disappear,  upon  a  recurrence  to  a  few  considerations. 

One  of  these,  of  no  little  significance,  is,  that  during  the  existence 
of  the  government  for  now  nearly  a  century  under  the  present  Con- 
stitution, with  this  principle  and  the  practice  under  it  well  estab- 
lished, no  injury  from  it  has  come  to  that  government.  During  this 
time  at  least  two  wars,  so  serious  as  to  call  into  exercise  all  the 
powers  and  all  the  resources  of  the  government,  have  been  conducted 
to  a  successful  issue.  One  of  these  was  a  great  civil  war,  such  as  the 
world  has  seldom  known,  which  strained  the  powers  of  the  national 
government  to  their  utmost  tension.  In  the  course  of  this  war  per- 
sons hostile  to  the  Union  did  not  hesitate  to  invoke  the  powers  of 
the  courts  for  their  protection  as  citizens,  in  order  to  cripple  the 
exercise  of  the  authority  necessary  to  put  down  the  rebellion  ;  yet  no 
improper  interference  with  the  exercise  of  that  authority  was  per- 
mitted or  attempted  by  the  courts.  Mississippi  v.  Johnson,  4  Wall. 
475 ;  Georgia  v.  Stanton,  6  id.  50 ;  Georgia  v.  Grant,  id.  241  ;  Ex 
parte  Tarble,  13  id.  397. 

Another  consideration  is,  that  since  the  United  States  cannot  be 
made  a  defendant  to  a  suit  concerning  its  property,  and  no  judgment 
in  any  suit  against  an  individual  who  has  possession  or  control  of 
such  property  can  bind  or  conclude  the  government,  as  is  decided  by 
this  court  in  the  case  of  Carr  v.  United  States  [98  U.  S.  433],  already 
referred  to,  the  government  is  always  at  liberty,  notwithstanding  any 
such  judgment,  to  avail  itself  of  all  the  remedies  which  the  law 
allows  to  every  person,  natural  or  artificial,  for  the  vindication  and 
assertion  of  its  rights.  Hence,  taking  the  present  case  as  an  illustra- 
tion, the  United  States  may  proceed  by  a  bill  in  chancery  to  quiet  its 
title,  in  aid  of  which,  if  a  proper  case  is  made,  a  writ  of  injunction 
may  be  obtained.  Or  it  may  bring  an  action  of  ejectment,  in  which, 
on  a  direct  issue  between  the  United  States  as  plaintiff,  and  the  pres- 
ent plaintiff  as  defendant,  the  title  of  the  United  States  could  be 
judicially  determined.     Or,  if  satisfied  that  its  title  has  been  shown 


SECT.  I.  d.  5.]  UNITED    STATES    V.   LEE.  727 

to  be  invalid,  and  it  still  desires  to  use  the  property,  or  any  part  of  it, 
for  the  purposes  to  which  it  is  now  devoted,  it  may  purchase  such 
property  by  fair  negotiation,  or  condemn  it  by  a  judicial  proceeding, 
in  which  a  just  compensation  shall  be  ascertained  and  paid  according 
to  the  Constitution. 

If  it  be  said  that  the  proposition  here  established  may  subject  the 
property,  the  officers  of  the  United  States,  and  the  performance  of 
their  indispensable  functions  to  hostile  proceedings  in  the  State 
courts,  the  answer  is,  that  no  case  can  arise  in  a  State  court,  where 
the  interests,  the  property,  the  rights,  or  the  authority  of  the  Federal 
goverument  may  come  in  question,  which  cannot  be  removed  into  a 
court  of  the  United  States  under  existing  laws.  In  all  cases,  there- 
fore, where  such  questions  can  arise,  they  are  to  be  decided,  at  the 
option  of  the  parties  representing  the  United  States,  in  courts  which 
are  the  creation  of  the  Federal  government.  The  slightest  consid- 
eration of  the  nature,  the  character,  the  organization,  and  the  powers 
of  these  courts  will  dispel  any  fear  of  serious  injury  to  the  govern- 
ment at  their  hands.  While  by  the  Constitution  the  judicial  depart- 
ment is  recognized  as  one  of  the  three  great  branches  among  which 
all  tlie  powers  and  functions  of  the  government  are  distributed,  it  is 
inherently  the  weakest  of  them  all.  Dependent  as  its  courts  are  for 
the  enforcement  of  their  judgments  upon  officers  appointed  by  the 
executive  and  removable  at  his  pleasure,  with  no  patronage  and  no 
control  of  the  purse  or  the  sword,  their  power  and  influence  rest 
solely  upon  the  public  sense  of  the  necessity  for  the  existence  of  a 
tribunal  to  which  all  may  appeal  for  the  assertion  and  protection  of 
rights  guaranteed  by  the  Constitution  and  by  the  laws  of  the  land, 
and  on  the  confidence  reposed  in  the  soundness  of  their  decisions  and 
the  purity  of  their  motives.  From  such  a  tribunal  no  well-founded 
fear  can  be  entertained  of  injustice  to  the  government,  or  of  a  pur- 
pose to  obstruct  or  diminish  its  just  authority. 

The  Circuit  Court  was  competent  to  decide  the  issues  in  this  case 
between  the  parties  that  were  before  it;  in  the  principles  on  which 
these  issues  were  decided  no  error  has  been  found ;  and  its  judg- 
ment is  Affirmed} 

1  Mr.  Justice  Grav  delivered  a  dissenting  opinion,  in  which  Mr.  Chief  Justice 
Waite,  Mr,  Justice  Bradley,  and  Mb.  Justice  Woods  concurred. 


728 


THE   JUDICIAL   DEPARTMENT. 


[chap.  yi. 


CUNNINGHAM  v.   MACON   &  BRUNSWICK  EAILROAD 

COMPANY. 

109  United  States,  446.     1883. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  the  decree  of  the  Circuit  Court  for  the 
Southern  District  of  Georgia,  dismissing  the  bill  of  complainant  on 
demurrer. 

The  bill  is  tiled  by  Cunningham,  a  citizen  of  the  State  of  Virginia, 
against  Alfred  H.  Colquitt,  as  governor  of  the  State  of  Georgia,  J. 
W.  Kenfroe,  as  treasurer  of  the  State,  the  Macon  and  Brunswick 
Eailroad  Company,  and  A.  Flewellen,  W.  A.  Lofton,  and  George 
S.  Jones,  styling  themselves  directors  of  said  railroad  company, 
John  H.  James,  a  citizen  of  Georgia,  and  the  First  National  Bank 
of  Macon. 

The  bill  sets  out,  with  reasonable  fulness  and  with  references  to 
exhibits  which  make  its  statements  clear,  what  we  will  try  to  state, 
as  far  as  necessary,  in  shorter  terms. 

[In  pursuance  of  authority  given  by  statute,  the  Governor  of  Geor- 
gia indorsed  the  bonds  of  the  defendant  railroad,  under  an  arrange- 
ment by  which  the  State  became  the  holder  of  a  first  mortgage  on  the 
road,  and  on  default  in  payment  of  this  indebtedness  the  road  was 
put  into  the  hands  of  a  receiver  and  by  him  transferred  to  the  State. 
Complainants  are  holders  of  second-mortgage  bonds  of  the  railroad 
company,  and  bring  this  bill  to  foreclose  their  own  mortgage  and  to 
set  aside  the  previous  sale  by  the  receiver  to  the  State.  The  bill 
was  dismissed  in  the  lower  court  on  the  ground  that  the  suit,  to  all 
intents  and  purposes,  was  against  the  State  of  Georgia.] 

The  failure  of  several  of  the  States  of  the  Union  to  pay  the  debts 
which  they  have  contracted  and  to  discharge  other  obligations  of 
a  contract  character,  when  taken  in  connection  with  the  acknowl- 
edged principle  that  no  State  can  be  sued  in  the  ordinary  courts  as  a 
defendant  except  by  her  own  consent,  has  led,  in  recent  times,  to 
numerous  efforts  to  compel  the  performance  of  their  obligations  by 
judicial  proceedings  to  which  the  State  is  not  a  party. 

These  suits  have  generally  been  instituted  in  the  Circuit  Courts 
of  the  United  States,  or  have  been  removed  into  them  from  the 
State  courts. 

The  original  jurisdiction  of  this  court  has  also  been  invoked  in  the 
recent  cases  of  The  State  of  New  Hampshire  v.  The  State  of  Lou- 
isiana and  The  State  of  New  York  v.  The  State  of  Louisiana,  [108 
U.  S.  76.]  These  latter  suits  were  based  on  the  proposition  that  the 
constitutional  provision  that  States  might  sue  each  other  in  this 
court  would  enable  a  State  whose  citizens  were  owners  of  obligations 


SECT.  I.  d.  5.]       CUNNINGHAM    V.    MACON,   ETC.    RAILROAD   CO. 


729 


of  another  State  to  take  a  transfer  of  those  obligations  to  herself  and 
sue  the  defaulting  State  in  the  court.  The  doctrine  was  overruled 
in  those  cases  at  the  last  term  by  the  unanimous  opinion  of  the 
court. 

In  the  suits  which  have  been  instituted  in  the  Circuit  Courts  the 
effort  has  been,  while  acknowledging  tlie  incapacity  of  those  courts 
to  assume  jurisdiction  of  a  State  as  a  party,  to  proceed  in  such  a 
manner  against  the  officers  or  agents  of  the  State  government,  or 
against  property  of  the  State  in  their  hands,  that  relief  can  be  had 
without  making  the  State  a  party. 

The  same  principle  of  exemption  from  liability  to  suit  as  applied 
to  the  government  of  the  United  States  has  led  to  like  efforts  to 
enforce  rights  against  the  government  in  a  similar  manner.  And  it 
must  be  confessed  that,  in  regard  to  both  classes  of  cases,  the  ques- 
tions raised  have  rarely  been  free  from  difficulty,  and  the  judges  of 
this  court  have  not  always  been  able  to  agree  in  regard  to  them,  Kor 
is  it  an  easy  matter  to  reconcile  all  the  decisions  of  the  court  in  this 
class  of  cases.  While  no  attempt  will  be  made  here  to  do  this,  it 
may  not  be  amiss  to  try  to  deduce  from  them  some  general  princi- 
ples, sufficient  to  decide  the  case  before  us. 

It  may  be  accepted  as  a  point  of  departure  unquestioned,  that 
neither  a  State  nor  the  United  States  can  be  sued  as  defendant  in  any 
court  in  this  country  without  their  consent,  except  in  the  limited 
class  of  cases  in  which  a  State  may  be  made  a  party  in  the  Supreme 
Court  of  the  United  States  by  virtue  of  the  original  jurisdiction 
conferred  on  that  coart  by  the  Constitution. 

This  principle  is  conceded  in  all  the  cases,  and  whenever  it  can  be 
clearly  seen  that  the  State  is  an  indispensable  party  to  enable  the 
court,  according  to  the  rules  which  govern  its  procedure,  to  grant 
the  relief  sought,  it  will  refuse  to  take  jurisdiction.  But  in  the 
desire  to  do  that  justice,  which  in  many  cases  the  courts  can  see 
will  be  defeated  by  an  unwarranted  extension  of  this  principle,  they 
have  in  some  instances  gone  a  long  way  in  holding  the  State  not  to 
be  a  necessary  party,  though  some  interest  of  hers  may  be  more  or 
less  affected  by  the  decision.  In  many  of  these  cases  the  action  of 
the  court  has  been  based  upon  principles  whose  soundness  cannot 
be  disputed.  A  reference  to  a  few  of  them  may  enlighten  us  in 
regard  to  the  case  now  under  consideration. 

1.  It  has  been  held  in  a  class  of  cases  where  property  of  the 
State,  or  property  in  which  the  State  has  an  interest,  comes  before 
the  court  and  under  its  control,  in  the  regular  course  of  judicial 
administration,  without  being  forcibly  taken  from  tlie  possession  of 
the  government,  the  court  will  proceed  to  discharge  its  duty  in 
regard  to  that  property.  And  the  State,  if  it  choose  to  come  in  as 
plaintiff,  as  in  prize  cases,  or  to  intervene  in  other  cases  when  she 
may  have  a  lien  or  other  claim  on  the  property,  will  be  permitted 
to  do  so,  but  subject  to  the  rule  that  her  rights  will  receive  the  same 


730  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

consideration  as  any  other  party  interested  in  the  matter,  and  be 
subjected  in  like  manner  to  the  judgment  of  the  court.  Of  this  class 
are  the  cases  of  The  Siren,  7  Wall.  152,  157;  The  Davis,  10  Wall. 
15,  20;  and  Clark  v.  Barnard,  108  U.  S.  436. 

2.  Another  class  of  cases  is  where  an  individual  is  sued  i^?  tort 
for  some  act  injurious  to  another  in  regard  to  person  or  property,  to 
which  his  defence  is  that  he  has  acted  under  the  orders  of  the 
government. 

In  these  cases  he  is  not  sued  as,  or  because  he  is,  the  officer  of  the 
government,  but  as  an  individual,  and  the  court  is  not  ousted  of 
jurisdiction  because  he  asserts  authority  as  such  officer.  To  make 
out  his  defence  he  must  show  that  his  authority  was  sufficient  in  law 
to  protect  him.  See  Mitchell  v.  Harmony,  13  How.  115;  Bates  v. 
Clark,  95  U.  S.  204;  Meigs  v.  McClung,  9  Cranch,  11;  Wilcox 
V.  Jackson,  13  Pet.  498;  Brown  v.  Huger,  21  How.  305;  Grisar  v. 
McDowell,  6  Wall.  363. 

To  this  class  also  belongs  the  recent  case  of  United  States  v.  Lee, 
106  U.  S.  196,  for  the  action  of  ejectment  in  that  case  is,  in  its  essen- 
tial character,  an  action  of  trespass,  with  the  power  in  the  court 
to  restore  the  possession  to  the  plaintiff  as  part  of  the  judgment. 
And  the  defendants,  Strong  and  Kaufman,  being  sued  individually 
as  trespassers,  set  up  their  authority  as  officers  of  the  United  States, 
which  this  court  held  to  be  unlawful,  and  therefore  insufficient  as 
a  defence.  The  judgment  in  that  case  did  not  conclude  the  United 
States,  as  the  opinion  carefully  stated,  but  held  the  officers  liable 
as  unauthorized  trespassers,  and  turned  them  out  of  their  unlawful 
possession. 

3.  A  third  class,  which  has  given  rise  to  more  controversy,  is 
where  the  law  has  imposed  upon  an  officer  of  the  government  a  well- 
defined  duty  in  regard  to  a  specific  matter,  not  affecting  the  general 
powers  or  functions  of  the  government,  but  in  the  performance  of 
which  one  or  more  individuals  have  a  distinct  interest  capable  of 
enforcement  by  judicial  process.  Of  this  class  are  writs  of  manda- 
mus to  public  officers,  as  in  Marbury  v.  Madison,  1  Cranch,  137; 
Kendall  v.  Stokes,  3  How.  87;  United  States  v.  Schurtz,  102  U.  S. 
378;  United  States  v.  Boutwell,  17  Wall.  604. 

But  in  all  such  cases  from  the  nature  of  the  remedy  by  manda- 
mus, the  duty  to  be  performed  must  be  merely  ministerial,  and  must 
involve  no  element  of  discretion  to  be  exercised  by  the  officer. 

It  has,  however,  been  much  insisted  on  that  in  this  class  of  cases, 
where  it  shall  be  found  necessary  to  enforce  the  rights  of  the  indi- 
vidual, a  court  of  chancery  may,  by  a  mandatory  decree  or  by  an  in-  . 
junction,  compel  the  performance  of  the  appropriate  duty,  or  enjoin 
the  officer  from^  doing  that  which  is  inconsistent  with  that  duty  and 
with  plaintiff's  rights  in  the  premises. 

Perhaps  the  strongest  assertion  of  this  doctrine  is  found  in  the  case 
of  Davis  V.  Gray,  16  Wall.  20a  1 1 


I 


SECT.  I.  d.  5.]       CUNNINGHAM   V.   MACON,   ETC.    RAILROAD    CO.  731 

In  that  case,  the  State  of  Texas  having  made  a  grant  of  the  alter- 
nate sections  of  land  along  which  a  railroad  should  thereafter  be 
located,  and  the  railroad  company  having  surveyed  the  land  at  its 
own  expense  and  located  its  road  through  it,  the  commissioner  of  the 
State  land  office  and  the  governor  of  the  State  were,  in  violation  of 
the  rights  of  the  company,  selling  and  delivering  patents  for  the 
sections  to  which  the  company  had  an  undoubted  vested  right.  The 
Circuit  Court  enjoined  them  from  doing  this  by  its  decree,  which  was 
affirmed  in  this  court. 

Judge  Hunt  did  not  sit  in  the  case,  and  Justice  Davis  and  Chief 
Justice  Chase  dissented,  on  the  ground  that  it  was  in  effect  a  suit 
against  the  State.  Though  there  are  some  expressions  in  the 
opinion  which  are  unfavorably  criticised  in  the  opinions  of  both 
the  majority  and  minority  of  this  court  in  the  recent  case  of  United 
States  V.  Lee,  the  action  of  the  court  has  not  been  overruled. 

But  it  is  clear  that  in  enjoining  the  governor  of  the  State  in  the 
performance  of  one  of  his  executive  functions,  the  case  goes  to  the 
verge  of  sound  doctrine,  if  not  beyond  it,  and  that  the  principle 
should  be  extended  no  further.  Nor  was  there  in  that  case  any 
affirmative  relief  granted  by  ordering  the  governor  and  land  com- 
missioner to  perform  any  act  towards  perfecting  the  title  of  the 
company. 

The  case  of  the  Board  of  Liquidation  v.  McComb,  92  U.  S.  5.31, 
is  to  the  same  effect.  The  board  of  liquidation  was  charged  by 
the  statute  of  Louisiana  with  certain  duties  in  regard  to  issuing  new 
bonds  of  the  State  in  place  of  old  ones  which  might  be  surrendered 
for  exchange  by  the  holders  of  the  latter.  The  amount  of  new 
bonds  to  be  issued  was  limited  by  a  constitutional  provision.  Mc- 
Comb, the  owner  of  some  of  the  new  bonds  already  issued,  filed  his 
bill  to  restrain  the  board  from  issuing  that  class  of  bonds  in  ex- 
change for  a  class  of  indebtedness  not  included  within  the  purview 
of  the  statute,  on  the  ground  that  his  own  bonds  would  thereby 
be  rendered  less  valuable.  This  court  affirmed  the  decree  of  the 
Circuit  Court  enjoining  the  board  from  exceeding  its  power  in  taking 
up  by  the  new  issue  a  class  of  State  indebtedness  not  within  the 
provisions  of  the  law  on  that  subject. 

In  the  opinion  in  that  case  the  language  used  by  Mr.  Justice 
Bradley  well  and  tersely  thus  expresses  the  rule  and  its  limitations: 
"The  objections  to  proceeding  against  State  officers  by  mandamus 
or  injunction  are,  first,  that  it  is  in  effect  proceeding  against  the 
State  itself;  and,  second,  that  it  interferes  with  the  official  discre- 
tion vested  in  the  officers.  It  is  conceded  that  neither  of  these  can 
be  done.  A  State,  without  its  consent,  cannot  be  sued  as  an  indi- 
vidual; and  a  court  cannot  substitute  its  own  discretion  for  that  of 
executive  officers,  in  matters  belonging  to  the  proper  jurisdiction  of 
the  latter.  But  it  has  been  settled  that  where  a  plain  official  duty 
requiring  no  exercise  of  discretion  is  to  be  performed,  and  perform- 


732  THE   JUDICIAL   DEPARTMENT,  [CHAP.  TI. 

ance  is  refused,  any  person  who  will  sustain  a  personal  injury  by 
such  refusal  may  have  a  mandamus  to  compel  performance;  and 
when  such  duty  is  threatened  to  be  violated  by  some  positive  official 
act,  any  person  who  will  sustain  personal  injury  thereby,  for  which 
adequate  compensation  cannot  be  had  at  law,  may  have  an  injunction 
to  prevent  it." 

It  is  believed  that  this  is  as  far  as  this  court  has  gone  in  granting 
relief  in  this  class  of  cases.  The  case  of  Osborn  v.  Bank  of  the 
United  States,  9  Wheat.  738,  often  referred  to,  was  decided  upon 
this  principle,  and  goes  no  further;  for  in  that  case,  a  preliminary 
injunction  of  the  court  forbidding  a  State  officer  from  placing  the 
money  of  the  bank,  which  he  had  seized,  in  the  treasury  of  the  State, 
having  been  disregarded,  the  final  decree  corrected  this  violation  of 
the  injunction,  by  requiring  the  restoration  of  the  money  thus 
removed.     See  Louisiana  v.  Jumel,  107  U.  S.  711. 

On  the  other  hand,  in  the  cases  of  Louisiana  v.  Jumel  and  Elliott 
V.  Wiltz,  107  U.  S.  711,  decided  at  the  last  term,  very  ably  argued 
and  very  fully  considered,  the  court  declined  to  go  any  further. 

In  the  first  of  these  cases  the  owners  of  the  new  bonds  issued 
by  the  board  of  liquidation  mentioned  in  McComb's  case,  supra, 
brought  the  bill  in  equity,  in  the  Circuit  Court  of  the  United  States, 
to  compel  the  auditor  of  the  State  and  the  treasurer  of  the  State  to 
pay,  out  of  the  treasury  of  the  State,  the  overdue  interest  coupons 
on  their  bonds,  and  to  enjoin  them  from  paying  any  part  of  the 
taxes  collected  for  that  purpose  for  the  ordinary  expenses  of  the  gov- 
ernment. They  at  the  same  time  applied  to  the  State  court  for  a 
writ  of  mandamus  to  the  same  officers,  which  suit  was  removed 
into  the  Circuit  Court  of  the  United  States.  In  this  they  asked 
that  these  officers  be  commanded  to  pay,  out  of  the  moneys  in  the 
treasury,  the  taxes  which  they  maintained  had  been  assessed  for  the 
purpose  of  paying  the  interest  on  their  bonds,  and  to  pay  such  sums 
as  had  already  been  diverted  from  that  purpose  to  others  by  the 
officers  of  the  government.  The  Circuit  Court  refused  the  relief 
asked  in  each  case  and  this  court  affirmed  the  judgment  of  that 
court. 

The  short  statement  of  the  reason  for  this  jvidgment  is,  that  as  the 
State  could  not  be  sued  or  made  a  party  to  such  proceeding,  there 
was  no  jurisdiction  in  the  Circuit  Court  either  by  mandamus  at  law, 
or  by  a  decree  in  chancery,  to  take  charge  of  the  treasury  of  the 
State,  and  seizing  the  hands  of  the  auditor  and  treasurer,  to  make 
distribution  of  the  funds  found  in  the  treasury  in  the  manner 
which  the  court  might  think  just. 

The  Chief  Justice  said:  "The  treasurer  of  the  State  is  the  keeper 
of  the  money  collected  from  this  tax,  just  as  he  is  the  keeper  of 
other  public  moneys.  The  taxes  were  collected  by  the  tax  collectors 
and  paid  over  to  him,  that  is  to  say,  into  the  State  treasury,  just  as 
other  taxes  were  when  collected.     He  is  no  more  a  trustee  of  these 


SECT.  I.  d.  5.]       CUNNINGHAM    V.   MACON,    ETC.    RAILROAD    CO.  733 

moneys  than  lie  is  of  all  other  public  minieys.  He  holds  them  only 
as  agent  of  the  State.  If  there  is  any  trust  the  State  is  the  trustee, 
and  unless  the  State  can  be  sued  the  trustee  cannot  be  enjoined. 
The  officers  owe  duty  to  the  State  alone,  and  have  no  contract  rela- 
tions with  the  bondholders.  They  can  only  act  as  the  State  directs 
theai  to  act  and  hold  as  the  State  allows  theui  to  hold.  It  was 
never  agreed  that  their  relations  with  the  bondholders  should  be 
other  than  as  officers  of  the  State,  or  that  they  should  have  any 
control  over  this  fund  except  to  keep  it  like  other  funds  in  the 
treasury,  and  pay  it  out  according  to  law.  They  can  be  moved 
through  the  State,  but  not  the  State  through  them." 

We  think  the  foregoing  cases  mark,  with  reasonable  precision, 
the  limit  of  the  power  of  the  courts  in  cases  affecting  the  rights  of 
the  State  or  Federal  governments  in  suits  to  which  they  are  not 
voluntary  parties. 

In  actions  at  law,  of  which  mandamus  is  one,  where  an  individual 
is  sued,  as  for  injuries  to  person  or  to  property,  real  or  personal,  or 
in  regard  to  a  duty  which  he  is  personally  bound  to  perform,  the 
government  does  not  stand  behind  him  to  defend  him.  If  he  has 
the  authority  of  law  to  sustain  him  in  what  he  has  done,  like  any 
other  defendant,  he  must  show  it  to  the  court  and  abide  the  result. 
In  either  case  the  State  is  not  bound  by  the  judgment  of  the  court, 
and  generally  its  rights  remain  unaffected.  It  is  no  answer  for  the 
defendant  to  say  I  am  an  officer  of  the  government  and  acted  under 
its  authority  unless  he  shows  the  sufficiency  of  that  authority. 

Courts  of  equity  proceed  upon  different  principles  in  regard  to 
parties.  As  was  said  in  Barney  v.  Baltimore,  6  Wall.  280,  there 
are  persons  who  are  merely  formal  parties  without  real  interest,  and 
there  are  those  who  have  an  interest  in  the  suit,  but  which  will  not 
be  injured  by  the  relief  sought,  and  there  are  those  whose  interest 
in  the  subject-matter  of  the  suit  renders  them  indispensable  as  par- 
ties to  it.  Of  this  latter  class  the  court  said,  in  Shields  v.  Barrow, 
17  How.  1-30,  "they  are  persons  who  not  only  have  an  interest  in 
the  controversy,  but  an  interest  of  such  a  nature  that  a  final  decree 
cannot  be  made  without  affecting  that  interest  or  leaving  the  contro- 
versy in  such  a  condition  that  its  final  disposition  may  be  wholly 
inconsistent  with  equity  and  good  conscience."  "In  such  cases," 
says  the  court  in  Barney  v.  Baltimore,  supra,  "the  court  refuses  to 
entertain  the  suit  when  tliese  parties  cannot  be  subjected  to  its 
jurisdiction." 

In  the  case  now  under  consideration  the  State  of  Georgia  is  an 
indispensable  party.  It  is  in  fact  the  only  proper  defendant  in  the 
case.  No  one  sued  has  any  personal  interest  in  the  matter  or  any 
official  authority  to  grant  the  relief  asked. 

No  foreclosure  suit  can  be  sustained  without  the  State,  because 
she  has  tlie  legal  title  to  the  property,  and  the  purchaser  under  a 
foreclosure  decree  would  get  no  title  in  the  absence  of  the  State. 


734  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI, 

The  State  is  in  the  actual  possession  of  the  property,  and  the  court 
can  deliver  no  possession  to  the  purchaser.  The  entire  interest 
adverse  to  plaintiff  in  this  suit  is  the  interest  of  the  State  of  Georgia 
in  the  property,  of  which  she  has  both  the  title  and  possession. 

On  the  hypothesis  that  the  foreclosure  by  the  governor  was  valid, 
the  trust  asserted  by  plaintiff  is  vested  in  the  State  as  trustee,  and 
not  in  any  of  the  officers  sued. 

ISTo  money  decree  can  be  rendered  against  the  State,  nor  against  its 
officers,  nor  any  decree  against  the  treasurer,  as  settled  in  Louisiana 
V.  Jumel,  supra. 

If  any  branch  of  the  State  government  has  power  to  give  plaintiff 
relief  it  is  the  legislative.  Why  is  it  not  sued  as  a  body,  or  its 
members  by  mandamus,  to  compel  them  to  provide  means  to  pay 
the  State's  indorsement  ?  The  absurdity  of  this  proposition  shows 
the  impossibility  of  compelling  a  State  to  pay  its  debts  by  judicial 
process. 

The  decree  of  the  Circuit  Court  is  affirmed.^ 


e.    Cases  of  Diverse  Citizenship. 

HOOE  V.   JAMIESON. 

166  United  States,  395.     1897. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

This  was  an  action  of  ejectment  brought  in  the  Circuit  Court  of  the 
United  States  for  the  Western  District  of  Wisconsin,  by  the  complain- 
ant, in  which  plaintiffs  in  error  alleged  that  they  resided  in  and  were 
citizens  of  the  city  of  Washington,  D.  C,  and  that  defendants  all 
resided  in  and  were  citizens  of  the  State  of  Wisconsin.  Defendants 
moved  to  dismiss  the  action  on  the  ground  that  the  Circuit  Court 
had  no  jurisdiction,  as  the  controversy  was  not  between  citizens  of 
different  States.  The  Circuit  Court  ordered  that  the  action  be 
dismissed  unless  plaintiffs  within  five  days  thereafter  should  so 
amend  tlieir  complaint  as  to  allege  the  necessary  jurisdictional  facts. 
Plaintiffs  then  moved  for  leave  to  amend  their  complaint  by  aver- 
ring that  three  of  them  were  when  the  suit  was  commenced,  and  con- 
tinued to  be,  citizens  of  the  District  of  Columbia,  but  that  one  of 
them  was  a  citizen  of  the  State  of  IVIinnesota,  and  that  each  was  the 
owner  of  an  undivided  one-fourth  of  the  lands  and  premises  de- 
scribed in  the  complaint,  and  that  they  severally  claimed  damages 
and  demanded  judgment.    This  motion  was  denied  and  the  action 

1  Mr.  Justice  Harlan  delivered  a  dissenting  opinion,  in  which  Mr.  Justice 
Field  concurred. 


SECT.  I.  e.]  HOOE   V.    JAMIESON.  735 

dismissed.  Plaintiffs  sued  out  this  writ  of  error  under  the  act  of 
March  3,  1891,  c.  517,  §  5,  and  the  Circuit  Court  certified  to  this 
court  these  questions  of  jurisdiction  :  — 

"  First.  Whether  or  not  said  complaint  sets  forth  any  cause  of 
action  in  which  there  is  a  controversy  between  citizens  of  different 
States,  so  as  to  give  said  Circuit  Court  jurisdiction  thereof, 

"Second.  Whether  or  not  said  complaint  as  so  proposed  to  be 
amended  would,  if  so  amended,  set  forth  any  cause  of  action  in 
which  there  is  a  controversy  between  citizens  of  different  States,  so 
as  to  give  said  Circuit  Court  jurisdiction  thereof." 

The  judicial  power  extends  under  the  Constitution  to  controversies 
between  citizens  of  different  States,  and  the  Judiciary  Act  of  1789 
provided,  as  does  the  act  of  March  3,  1887,  as  corrected  by  the  act 
of  August  13,  1888,  25  Stat.  433,  c.  866,  that  the  Circuit  Courts  of 
the  United  States  should  have  original  cognizance  of  all  suits  of  a 
civil  nature  at  common  law  or  in  equity  in  which  there  should  be  a 
controversy  between  citizens  of  different  States. 

We  see  no  reason  for  arriving  at  any  other  conclusion  than  that 
announced  by  Chief  Justice  Marshall  in  Hepburn  v.  Ellzey,  2  Cranch, 
445,  February  term,  1805,  "  that  the  members  of  the  American  con- 
federacy only  are  the  States  contemplated  in  the  Constitution;  "  that 
the  District  of  Columbia  is  not  a  State  within  the  meaning  of  that 
instrument;  and  that  the  courts  of  the  United  States  have  no  juris- 
diction of  cases  between  citizens  of  the  District  of  Columbia  and 
citizens  of  a  State. 

In  Strawbridge  v.  Curtiss,  3  Cranch,  267,  it  was  held  that  if  there 
be  two  or  more  joint  plaintiffs  and  two  or  more  joint  defendants, 
each  of  the  plaintiffs  must  be  capable  of  suing  each  of  the  defend- 
ants in  the  courts  of  the  United  States  in  order  to  support  the 
jurisdiction ;  and  in  Smith  v.  Lyon,  133  U.  S.  315,  Strawbridge 
V.  Curtiss  was  followed,  and  it  was  decided  that  under  the  acts  of 
1887  and  1888  the  Circuit  Court  has  not  jurisdiction,  on  the  ground 
of  diverse  citizenship,  if  there  are  two  plaintiffs  to  the  action  who 
are  citizens  of  and  residents  in  different  States  and  the  defendant 
is  a  citizen  of  and  resident  in  a  third  State,  and  the  action  is 
brought  in  the  State  in  which  one  of  the  plaintiffs  resides. 

New  Orleans  v.  Winter,  1  Wheat.  91,  was  an  action  in  ejectment 
brought  by  two  plaintiffs  claiming  as  joint  heirs,  and  it  appeared 
that  one  of  them  was  a  citizen  of  the  State  of  Kentucky,  and  that 
the  other  was  a  citizen  of  the  Territory  of  Mississippi.  It  was 
held  that  jurisdiction  could  not  be  maintained,  and  Chief  Justice 
Marshall,  delivering  the  opinion  of  the  court,  said:  "Gabriel 
Wintei",  then,  being  a  citizen  of  the  Mississippi  Territory,  was  in- 
capable of  maintaining  a  suit  alone  in  the  Circuit  Court  of  Louisi- 
ana. Is  his  case  mended  by  being  associated  with  others  who  are 
capable  of  suing  in  that  court  ?  In  the  case  of  Strawbridge  v.  Curtiss, 
it  was  decided,  that  where  a  joint  interest  is  prosecuted,  the  juris- 


736  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

diction  cannot  be  sustained,  unless  each  individual  be  entitled  to 
claim  that  jurisdiction.  In  this  case  it  has  been  doubted,  whether 
tlie  parties  might  elect  to  sue  jointly  or  severally.  However  this 
may  be,  having  elected  to  sue  jointly,  the  court  is  incapable  of  dis- 
tinguishing their  case,  so  far  as  respects  jurisdiction,  from  one  in 
which  they  were  compelled  to  unite." 

In  Peninsular  Iron  Co.  v.  Stone,  121  U.  S.  631,  the  interests  of 
the  parties  being  separate  and  distinct,  but  depending  on  one  con- 
tract, plaintiffs  elected  to  sue  on  the  common  obligation,  and  the 
case  was  dismissed  under  the  rule  in  Xew  Orleans  v.  Winter. 

In  Barney  v.  Baltimore,  6  Wall.  280,  which  was  a  bill  for  par- 
tition, it  appeared  that  some  of  the  defendants  were  citizens  of 
the  District  of  Columbia  and  some  of  them  citizens  of  ^Nlarj-land, 
and,  in  dismissing  the  case  for  want  of  jurisdiction,  the  court, 
through  Mr.  Justice  Miller,  said :  "  In  the  case  of  Hepburn  v. 
EUzey,  it  was  decided  by  this  court,  speaking  through  Marshall, 
C.  J.,  that  a  citizen  of  the  District  of  Columbia  was  not  a  citizen  of 
a  State  within  the  meaning  of  the  Judiciary  Act,  and  could  not  sue 
in  a  Federal  court.  The  same  principle  was  asserted  in  reference  to 
a  citizen  of  a  Territory,  in  the  case  of  New  Orleans  v.  Winter,  and 
it  was  there  held  to  defeat  the  jurisdiction,  although  the  citizen  of 
the  Territory  of  Mississippi  was  joined  with  a  person  who,  in  suing 
alone,  could  have  maintained  the  suit.  These  rulings  have  never 
been  disturbed,  but  the  principle  asserted  has  been  acted  upon  ever 
since  by  the  courts  when  the  point  has  arisen." 

Many  other  decisions  are  to  the  same  effect,  and  in  the  late  case 
of  Merchants'  Cotton  Press  Co.  v.  Insurance  Co.,  151  U.  S.  308,  384, 
the  rule  in  !N"ew  Orleans  v.  Winter  was  applied  and  it  was  held  that 
'•  the  voluntary  joinder  of  the  parties  has  the  same  effect  for  purposes 
of  jurisdiction  as  if  they  had  been  compelled  to  unite." 

In  the  case  at  bar  no  application  was  made  for  leave  to  discon- 
tinue as  to  the  three  plaintiffs  who  were  citizens  of  the  District  of 
Columbia,  and  to  amend  the  complaint  and  proceed  with  the  cause  in 
favor  of  that  one  of  the  plaintiffs  alleged  to  be  a  citizen  of  Min- 
nesota. Jurisdiction  of  the  case  as  to  four  plaintiffs  could  not  be 
maintained  on  the  theory  that  when  the  trial  terminated  it  might 
be  retained  as  to  one.  The  Circuit  Court  was  right  and  its  judg- 
ment is 

Affirmed. 


SECT.  I.  e.]      OHIO  AND  MISSISSIPPI  RAILROAD  CO.  V.  WHEELER.        737 


THE   OHIO    AND    MISSISSIPPI    RAILROAD    COMPANY   v. 

WHEELER. 

1  Black,  286.     186L 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

This  action  was  brought  in  the  Circuit  Court  of  the  United  States 
for  the  district  of  Indiana,  to  recover  $2,400,  with  ten  per  cent  dam- 
ages, which  the  plaintiffs  alleged  to  be  due  for  fifty  shares  of  the 
capital  stock  of  the  company,  subscribed  by  the  defendant. 

The  declaration  states  that  the  plaintiffs  are  "a  corporation, 
created  by  the  laws  of  the  States  of  Indiana  and  Ohio,  having  its 
principal  place  of  business  in  Cincinnati,  in  the  State  of  Ohio ;  that 
the  corporation  is  a  citizen  of  the  State  of  Ohio,  and  Henry  D. 
Wlieeler,  the  defendant,  is  a  citizen  of  the  State  of  Indiana." 

The  defendant  pleaded  to  the  jurisdiction  of  the  court,  averring 
that  he  was  a  citizen  of  the  State  of  Indiana,  and  that  the  plaintiffs 
were  a  body  politic  and  corporate,  created,  organized,  and  existing  in 
the  same  State,  under  and  by  virtue  of  an  act  of  assembly  of  the 
State.  The  plaintiffs  demurred  to  this  plea  ;  and  the  judges  being 
opposed  in,  opinion  upon  the  question  whether  their  court  had 
jurisdiction,  ordered  their  division  of  opinion  to  be  certified  to  this 
court. 

A  brief  reference  to  cases  heretofore  decided  will  show  how  the 
question  must  be  answered.  And,  as  the  subject  was  fully  considered 
and  discussed  in  the  cases  to  which  we  are  about  to  refer,  it  is  un- 
necessary to  state  here  the  principles  and  rules  of  law  which  have 
heretofore  governed  the  decisions  of  the  court,  and  must  decide  the 
question  now  before  us. 

In  the  case  of  the  Bank  of  Augusta  v.  Earle,  13  Pet.  512,  the  court 
held,  that  the  artificial  person  or  legal  entity  known  to  the  common 
law  as  a  corporation  can  have  no  legal  existence  out  of  the  bounds 
of  the  sovereignty  by  which  it  is  created  ;  that  it  exists  only  in  con- 
templation of  law,  and  by  force  of  law  ;  and  where  that  law  ceases 
to  operate,  the  corporation  can  have  no  existence.  It  must  dwell  in 
the  place  of  its  creation. 

It  had  been  decided,  in  the  case  of  The  Bank  v.  Deviary,  5  Cr.  61, 
long  before  the  case  of  the  Bank  of  Augusta  v.  Earle  came  before  the 
court,  that  a  corporation  is  not  a  citizen,  within  the  meaning  of  the 
Constitution  of  the  United  States,  and  cannot  maintain  a  suit  in  a 
court  of  the  United  States  against  the  citizen  of  a  different  State 
from  that  by  which  it  was  chartered,  unless  the  persons  who  com- 
pose the  corporate  body  are  all  citizens  of  that  State.  But,  if  that  be 
the  case,  they  may  sue  by  their  corporate  name,  averring  the  citizen- 
ship of  all  of  the  members;  and  such  a  suit  would  be  regarded  as  the 

47 


738  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

joint  suit  of  the  individual  persons,  united  together  in  the  corporate 
body,  and  acting  under  the  name  conferred  upon  them,  for  the  more 
convenient  transaction  of  business,  and  consequently  entitled  to 
maintain  a  suit  in  the  courts  of  the  United  States  against  a  citizen  of 
another  State. 

This  question,  as  to  the  character  of  a  corporation,  and  the  juris- 
diction of  the  courts  of  the  United  States,  in  cases  wherein  they 
were  sued,  or  brought  suit  in  their  corporate  name,  was  again  brought 
before  the  court  in  the  case  of  The  Louisville,  Cincinnati,  and  Charles- 
ton Railroad  Company  v.  Letson,  reported  in  2  How.  497 ;  and  the 
court  in  that  case,  upon  full  consideration,  decided,  that  where  a  cor- 
poration is  created  by  the  laws  of  a  State,  the  legal  presumption  is, 
that  its  members  are  citizens  of  the  State  in  which  alone  the  corpo- 
rate body  has  a  legal  existence  ;  and  that  a  suit  by  or  against  a  cor- 
poration, in  its  corporate  name,  must  be  presumed  to  be  a  suit  by  or 
against  citizens  of  the  State  which  created  the  corporate  body ;  and 
that  no  averment  or  evidence  to  the  contrary  is  admissible,  for  the 
purposes  of  withdrawing  the  suit  from  the  jurisdiction  of  a  court  of 
the  United  States. 

The  question,  however,  was  felt  by  this  court  to  be  one  of  gi-eat 
difficulty  and  delicacy ;  and  it  was  again  argued  and  maturely  consid- 
ered in  the  case  of  Marshall  v.  The  Baltimore  and  Ohio  Railroad 
Company,  16  How.  314,  as  will  appear  by  the  report,  and  the  decision 
in  the  case  of  The  Louisville,  Cincinnati,  and  Charleston  Railroad 
Company  v.  Letson  reaffirmed. 

And  again,  in  the  case  of  The  Covington  Drawbridge  Company  v. 
Shepherd  and  others,  20  How.  232,  the  same  question  of  jurisdiction 
was  presented,  and  the  rule  laid  down  in  the  two  last-mentioned 
cases  fully  maintained.  After  these  successive  decisions,  the  law 
upon  this  subject  must  be  regarded  as  settled ;  and  a  suit  by  or 
against  a  corporation  in  its  corporate  name,  as  a  suit  by  or  against 
citizens  of  the  State  which  created  it. 

It  follows  from  these  decisions  that  this  suit  in  the  corporate 
name  is,  in  contemplation  of  law,  the  suit  of  the  individual  persons 
who  compose  it,  and  must,  therefore,  be  regarded  and  treated  as  a 
suit  in  which  citizens  of  Ohio  and  Indiana  are  joined  as  plaintiffs  in 
an  action  against  a  citizen  of  the  last-mentioned  State.  Such  an 
action  cannot  be  maintained  in  a  court  of  the  United  States,  where 
jurisdiction  of  the  case  depends  altogether  on  the  citizenship  of  the 
parties.  And,  in  such  a  suit,  it  can  make  no  difference  whether  the 
plaintiffs  sue  in  their  own  proper  names,  or  by  the  corporate  name 
and  style  by  which  they  are  described. 

The  averments  in  the  declaration  would  seem  to  imply  that  the 
plaintiffs  claim  to  have  been  created  a  corporate  body,  and  to  have 
been  endued  with  the  capacities  and  faculties  it  possesses  by  the  co- 
operating legislation  of  the  two  States,  and  to  be  one  and  the  same 
legal  being  in  both  States. 


SECT.  I.  e.]  ST.    LOUIS,    ETC.    RAIUYAY    CO.    V.    JAMES.  739 

If  this  were  the  case,  it  would  not  affect  the  question  of  jurisdic- 
tion in  this  suit.  But  such  a  corporation  can  have  no  legal  existence 
upon  the  principles  of  the  common  law,  or  under  the  decision  of  this 
court  in  the  case  of  the  Bank  of  Augusta  v.  Earle,  before  referred  to. 

It  is  true  that  a  corporation  b}'  the  name  and  style  of  the  plaintiffs 
appears  to  have  been  chartered  by  the  States  of  Indiana  and  Ohio, 
clothed  with  tlie  same  capacities  and  powers,  and  intended  to  accom- 
plish the  same  objects,  and  it  is  spoken  of  in  the  laws  of  the  States 
as  one  corporate  body,  exercising  the  same  powers  and  fulfilling  the 
same  duties  in  both  States.  Yet  it  has  no  legal  existence  in  either 
State,  except  by  the  law  of  the  State.  And  neither  State  could  con- 
fer on  it  a  corporate  existence  in  the  other,  nor  add  to  or  diminish 
the  powers  to  be  there  exercised.  It  may,  indeed,  be  composed  of 
and  represent,  under  the  corporate  name,  the  same  natural  persons. 
But  the  legal  entity  or  person,  which  exists  by  force  of  law,  can  have 
no  existence  beyond  the  limits  of  the  State  or  sovereignty  which 
brings  it  into  life  and  endues  it  with  its  faculties  and  powers.  The 
President  and  Directors  of  the  Ohio  and  Mississippi  Railroad  Com- 
pany is,  therefore,  a  distinct  and  separate  corporate  body  in  Indiana 
from  -the  corporate  body  of  the  same  name  in  Ohio,  and  they  cannot 
be  joined  in  a  suit  as  one  and  the  same  plaintiff,  nor  "maintain  a  suit 
in  that  character  against  a  citizen  of  Ohio  or  Indiana  iu  a  Circuit 
Court  of  the  United  States. 

These  questions,  however,  have  been  so  fully  examined  in  the  cases 
above  referred  to,  that  further  discussion  can  hardly  be  necessary  in 
deciding  the  case  before  us.  And  we  shall  certify  to  the  Circuit 
Court  that  it  has  no  jurisdiction  of  the  case  on  the  facts  presented 
by  the  pleadings. 


ST.  LOUIS   AND   SAN   FRANCISCO   RAILWAY   COMPANY 

V.  JAMES. 

161  United  States,  515.     1896. 

On-  December  24,  1892,  Etta  James,  defendant  in  error,  brought 
this  action  in  the  Circuit  Court  for  the  Western  District  of  Arkansas 
against  the  St.  Louis  and  San  Francisco  Railway  Company,  plaintiff 
in  error,  for  negligence  in  maintaining  a  switch  target  at  Monett,  in 
Barry  County,  in  the  State  of  IMissouri,  so  near  its  tracks  that  her 
husband  was  struck  and  killed  by  it  on  July  3,  18S9,  wliile  employed 
as  a  fireman  on  one  of  the  company's  engines.  Her  husband  resided 
at  ^[onett  and  died  intestate.  The  defendant  in  error  was  the  widow 
and  sole  heir  at  law  of  her  husband,  and  no  administrator  of  his  estate 
was  appointed  in  Arkansas.     She  recovered  a  judgment  of  65,000. 


740  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

Etta  James,  the  defendant  in  error,  resided  at  Monett,  and  was  a 
citizen  of  the  State  of  Missouri.  Monett  is  a  station  in  Missouri,  on 
the  railroad  of  the  pLaintiff  in  error,  about  fifty  miles  from  the  south- 
ern border  of  that  State. 

The  St.  Louis  and  San  Francisco  Kailway  Company  was  organized 
and  incorporated  under  the  laws  of  the  State  of  Missouri  in  1876,  and 
soon  thereafter  became  the  owner  of  and  has  ever  since  owned  and 
operated  a  railroad  in  that  State  extending  from  Monett  southerly  to 
the  southern  border  of  the  State  of  Missouri. 

[The  provisions  of  the  constitution  and  statutes  of  Arkansas,  which 
are  set  out  in  full  in  the  statement,  are  sufficiently  referred  to  in  the 
opinion,  and  are  therefore  omitted  here.  The  objection  was  raised  in 
the  lower  court  by  the  railroad  company  that  the  court  had  no  juris- 
diction, on  the  ground  that  the  company  was  not  a  citizen  of  Arkansas, 
but  was  a  citizen  of  Missouri,  of  which  State  the  plaintiff  in  the  trial 
court  was  also  a  citizen ;  but  the  company  waived  its  personal  privilege 
of  being  sued  in  the  district  of  which  it  was  an  inhabitant.  The 
question  raised  by  this  objection  was  taken  to  the  Circuit  Court  of 
Appeals,  which  certified  to  the  Supreme  Court  the  following  question, 
with  others :  — 

2d.  In  view  of  the  provisions  of  the  act  of  the  General  Assembly 
of  Arkansas,  approved  March  13,  1889,  did  the  St.  Louis  and  San 
Francisco  Eailway  Company,  by  filing  a  certified  copy  of  its  articles 
of  incorporation  under  the  laws  of  Missouri  with  the  Secretary  of 
State  of  Arkansas,  and  continuing  to  operate  its  railroad  through  that 
State,  become  a  citizen  of  the  State  of  Arkansas,  so  as  to  give  the 
Circuit  Court  of  the  United  States  for  the  Western  District  of  Arkan- 
sas jurisdiction  of  this  action,  in  which  the  defendant  in  error  was  and 
is  a  citizen  of  the  State  of  Missouri  ?] 

Mr.  Justice  Shiras,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

Etta  James,  as  a  citizen  of  the  State  of  Missouri,  and  having  a 
cause  of  action  against  the  St.  Louis  and  San  Francisco  Eailway 
Company,  a  corporation  of  the  State  of  Missouri,  could,  of  course, 
sue  the  latter  in  the  courts  of  that  State,  but  equally,  of  course,  could 
not  sue  such  State  corporation  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Missouri.  Can  she,  as  such  citizen  of  the 
State  of  Missouri,  lawfully  assert  her  cause  of  action  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Arkansas  against  the 
St.  Louis  and  San  Francisco  Railway  Company  by  showing  that  the 
latter  had  availed  itself  of  the  rights  and  privileges  conferred  by 
the  State  of  Arkansas  on  railroad  corporations  of  other  States  coming 
within  her  borders  and  complying  with  the  terms  and  conditions  of 
her  statutes  ? 

Before  addressing  ourselves  directly  to  this  question,  it  must  be 
conceded  that  the  plaintiff's  cause  of  action,  though  arising  in  Mis- 
souri, is  transitor}'-  in  its  nature,  and  that  the  St.  Louis  and  San 


SECT.  I.  e.]         ST.    LOUIS,    ETC.    RAILWAY   CO.    V.   JAMES.  741 

Francisco  Eailway  Company,  though  denying  the  plaintiff's  right 
to  sue  it  in  the  Circuit  Court  of  Arkansas,  waives  its  statutory 
privilege  of  being  sued  only  in  tJie  district  in  which  it  has  its 
habitat  ? 

It  must  be  regarded,  to  begin  with,  as  finally  settled,  by  re- 
peated decisions  of  this  court,  that,  for  the  purpose  of  jurisdiction  in 
the  Federal  courts,  a  State  corporation  is  deemed  to  be  indisputably 
composed  of  citizens  of  such  State.  It  is  equally  true  that,  without 
objection  so  far  from  the  Federal  authority,  whether  legislative  or 
judicial,  it  has  become  customary  for  a  State,  adjacent  to  the  State 
creating  a  railroad  corporation,  to  legislatively  grant  authority 
to  such  foreign  corporation  to  enter  its  territory  with  its  road  — 
to  make  running  arrangements  with  its  own  railroads  —  to  buy  or 
lease  them  or  to  consolidate  with  the  companies  owning  them.  Some- 
times, as  in  the  present  case,  such  foreign  corporation  is  declared, 
upon  its  acceptance  of  prescribed  terms  and  conditions,  to  become  a 
domestic  corporation  of  such  adjacent  State,  and  to  be  endowed  with 
all  the  rights  and  privileges  enjoyed  by  similar  corporations  created 
by  such  State. 

W^  have  already  said  that  the  rule  that  State  corporations  are  in- 
disputably composed  of  citizens  of  the  States  creating  them  is  finally 
settled.  But,  in  view  of  the  question  now  before  us,  it  may  be  well 
to  briefly  review  some  of  the  cases. 

[Earlier  cases  are  referred  to  at  length,  especially  the  case  of  Ohio 
&  Mississippi  Eailroad  Co.  v.  Wheeler,  supra,  p.  737.] 

Memphis  &  Charleston  E.  E.  Co.  v.  Alabama,  107  U.  S.  581,  was 
where  an  action  had  been  brought  by  the  State  of  Alabama,  for  the 
use  of  a  county  of  that  State,  in  a  court  of  that  State,  against  a  rail- 
road corporation  whose  road  passed  through  that  State  and  county, 
to  recover  the  amount  of  a  county  tax  assessed  upon  its  property ; 
and  the  cause  was  removed  into  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  of  Alabama ;  and  upon  motion  the  cause  was 
remanded  to  the  State  court  upon  the  ground  that  the  defendant,  al- 
though incorporated  in  Tennessee  also,  was  a  corporation  of  the  State 
of  Alabama.  On  error  the  judgment  of  the  court  below  was  affirmed, 
and  this  court,  per  Mr.  Justice  Gray,  said :  ''  The  defendant,  being  a 
corporation  of  the  State  of  Alabama,  has  no  existence  in  this  State  as 
a  legal  entity  or  person,  except  under  and  by  force  of  its  incorpora- 
tion by  this  State  ;  and  although  also  incorporated  in  the  State  of 
Tennessee,  must,  as  to  all  its  doings  within  the  State  of  Alabama,  be 
considered  a  citizen  of  the  State  of  Alabama,  which  cannot  sue  or 
be  sued  by  another  citizen  of  Alabama  in  the  courts  of  the  United 
States." 

In  this  case.  Ohio  &  Mississippi  E.  E.  Co.  v.  Wheeler,  1  Black,  286, 
and  Eailway  Company  v.  Whitton,  13  Wall.  270,  were  cited.  The 
former  has  already  been  noticed,  and  of  the  latter  it  may  be  said,  by 
way  of  distinguishing  it  from  the  present  case,  that  while  it  was  held 


742  THE    JUDICIAL    DEPARTMENT.  [CHAP.   /I. 

that  a  citizen  of  Illinois  might  sue  the  railroad  company  in  the  Cir- 
cuit Court  of  Wisconsin,  althougli  the  company  had  been  likewise 
incorporated  in  Illinois,  yet  the  cause  of  action  arose  in  Wisconsin  — 
nor  does  it  appear  in  the  report  of  that  case  what  was  the  character 
of  the  legislation  by  whicli  the  "Wisconsin  company  was  created,  nor 
was  the  question  now  before  us  tliere  considered.  It  is  also  observ- 
able that  in  the  latter  case  Ohio  &  Mississippi  R.  R.  Co.  v.  Wheeler 
was  cited  with  approval. 

One  phase  of  the  subject  was  before  the  court  in  the  case  of  the 
Pennsylvania  R.  Co.  v.  St.  Louis,  &c.  R.  R.  Co.,  118  U.  S.  290.     A 
suit  had  been  brought  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  Indiana,  by  the  St.  Louis,  Alton,  and  Terre  Haute 
Railroad  Company,  alleging  that  it  was  a  corporation  organized  under 
the  laws  of  the  State  of  Illinois,  and  a  citizen  of  that  State,  against 
the  Indianapolis  and   St.  Louis  Company,   a  corporation  organized 
under  the  laws  of  the  State  of  Indiana,  and  a  citizen  of  that  State, 
and  against  other  corporations  mentioned  in  the  bill  as  citizens  of 
Indiana,  or  of  other  States  than  Illinois.     An  objection  to  the  juris- 
diction was  made  on  the  ground  that  the  St.  Louis,  Alton,  and  Terre 
Haute  Railroad  Company  was  organized  under  laws  of  both  Illinois 
and  Indiana,  and  was  therefore  a  citizen  of  the  latter  State.     In 
treating  this  question  this  court  said,  by  Mr.  Justice  jNIiller  :  '•  It  does 
not  seem  to  admit  of  question  that  a  corporation  of  one  State,  own- 
ing property  and  doing  business  in  another  State  by  permission  of 
the  latter,  does  not  become  a  citizen  of  this  State  also.     And  so  a 
corporation   of  Illinois,  authorized  by  its  laws  to   build  a  railroad 
across  the   State  from  the  Mississippi  River  to  its  eastern  boun- 
dary, may  by  permission  of  the  State  of  Indiana  extend  its  road  a  few 
miles  within  the  limits  of  the  latter,  or,  indeed,  through  the  entire 
State,  .  .  .  without  thereby  becoming  a  corporation  or  a  citizen  of 
the  State  of  Indiana.    iSTor  does  it  seem  to  us  that  an  act  of  the  legis- 
lature conferring  upon  this  corporation  of  Illinois,  by  its  Illinois  cor- 
porate name,  such  powers  to  enable  it  to  use  and  control  that  part  of 
the  road  within  the  State  of  Indiana  as  have  been  conferred  on  it  by 
the  State  which  created  it,  constitutes  it  a  corporation  of  the  State  of 
Indiana.    It  may  not  be  easy  in  all  such  cases  to  distinguish  between 
the  purpose  to  create  a  new  corporation  which  shall  owe  its  existence 
to  the  law  or  statute  under  consideration,  and  the  intent  to  enable 
the  corporation  already  in  existence  under  laws  of  another  State  to 
exercise  its  functions  in  the  State  -where  it  is  so  received.    The  latter 
class  of  laws  are  common  in  authorizing  insurance  companies,  bank- 
ing companies,  and  others  to  do  business  in  other  States  than  those 
which  have  chartered  them.     To  make  such  a  company  a  corporation 
of  another  State,  the  language  must  imply  creation  or  adoption  in 
such  form  as  to  confer  the  power  usually  exercised  over  corjiorations 
by  the  State,  or  by  the  legislature,  and  such  allegiance  as  a  State  cor- 
poration owes  to  its  creator.    The  mere  grant  of  privileges  or  power.s 


SECT.  I.  e.]        ST.    LOUIS,    ETC.    RAILWAY   CO.    V.   JAMES.  743 

to  it  as  an  existing  corporation,  without  more,  does  not  do  this,  and 
does  not  make  it  a  citizen  of  the  State  conferring  such  powers." 

So  in  Nashua  Eailroad  v.  Lowell  Kailroad,  136  U.  S.  356,  it  was 
held  that  railroad  corporations,  created  by  two  or  more  States,  though 
joined  in  their  interests,  in  the  operation  of  their  roads,  in  tlie  issue 
of  their  stock,  and  in  the  division  of  their  profits,  so  as  practically  to 
be  a  single  corporation,  do  not  lose  their  identity;  but  each  has  its 
existence  and  its  standing  in  the  courts  of  the  country  only  by  virtue 
of  the  legislation  of  the  State  by  which  it  was  created,  and  the  union 
of  name,  of  officers,  of  business  and  property  does  not  change  their 
distinctive  character  as  separate  corporations. 

To  fully  reconcile  all  the  expressions  used  in  these  cases  would  be 
no  easy  task,  but  we  think  the  following  propositions  may  be  fairly 
deduced  from  them  :  There  is  an  indisputable  legal  presumption  that 
a  State  corporation,  when  sued  or  suing  in  a  Circuit  Court  of  the 
United  States,  is  composed  of  citizens  of  the  State  which  created  it, 
and  hence  such  a  corporation  is  itself  deemed  to  come  within  that 
provision  of  the  Constitution  of  the  United  States  which  -confers 
jurisdiction  upon  the  Federal  courts  in  ''  controversies  between 
citizeTis  of  different  States." 

It  is  competent  for  a  railroad  corporation  organized  under  the  laws 
of  one  State,  when  authorized  so  to  do  by  the  consent  of  the  State 
which  created  it,  to  accept  authority  from  another  State  to  extend  its 
railroad  into  such  State  and  to  receive  a  grant  of  powers  to  own  and 
control,  by  lease  or  purchase,  railroads  therein,  and  to  subject  itself 
to  such  rules  and  regulations  as  may  be  prescribed  by  the  second 
State.  Such  legislation  on  the  part  of  two  or  more  States  is  not,  in 
the  absence  of  inhibitory  legislation  by  Congress,  regarded  as  within 
the  constitutional  prohibition  of  agreements  or  compacts  between 
States. 

Such  corporations  may  be  treated  by  each  of  the  States  whose  legis- 
lative grants  they  accept  as  domestic  corporations. 

The  presumption  that  a  corporation  is  composed  of  citizens  of  the 
State  which  created  it  accompanies  such  corporation  when  it  does 
business  in  another  State,  and  it  may  sue  or  be  sued  in  the  Federal 
courts  in  such  other  State  as  a  citizen  of  the  State  of  its  original 
creation. 

We  are  now  asked  to  extend  the  doctrine  of  indisputable  citizen- 
ship, so  that  if  a  corporation  of  one  State,  indisputably  taken,  for  the 
purpose  of  Federal  jurisdiction,  to  be  composed  of  citizens  of  such 
State,  is  authorized  by  the  law  of  another  State  to  do  business  therein, 
and  to  be  endowed,  for  local  purposes,  with  all  the  powers  and  priv- 
ileges of  a  domestic  corporation,  such  adopted  corporation  shall  be 
deemed  to  be  composed  of  citizens  of  the  second  State,  in  such  a 
sense  as  to  confer  jurisdiction  on  the  Federal  courts  at  the  suit  of  a 
citizen  of  tlie  State  of  its  original  creation. 

We  are  unwilling  to  sanction  such  an  extension  of  a  doctrine  which, 


744  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

as  heretofore  established,  went  to  the  very  verge  of  judicial  power. 
That  doctrine  began,  as  we  have  seen,  in  the  assumption  that  State 
corporations  were  composed  of  citizens  of  the  State  which  created 
them ;  but  such  assumption  was  one  of  fact,  and  was  the  subject  of 
allegation  and  traverse,  and  thus  the  jurisdiction  of  the  Federal  courts 
might  be  defeated.  Then,  after  a  long  contest  in  this  court,  it  was 
settled  that  the  presumption  of  citizenship  is  one  of  law,  not  to  be 
defeated  by  allegation  or  evidence  to  the  contrary.  There  we  are 
content  to  leave  it. 

It  should  be  observed  that,  in  the  present  case,  the  corporation  de- 
fendant was  not  incorporated  as  such  by  the  State  of  Arkansas.  The 
legislation  of  that  State  was  professedly  dealing  with  the  railroad 
corporation  of  other  States.  The  Constitution  of  Arkansas  provides 
that  "foreign  corporations  may  be  authorized  to  do  business  in  this 
State  under  such  limitations  and  restrictions  as  may  be  prescribed  by 
law,"  but  "they  shall  not  have  power  to  condemn  or  appropriate 
private  property." 

Section  5  of  the  act  of  March  16, 1881,  as  shown  in  the  preliminary 
statement,  provides  that  "  any  railroad  company  incorporated  by  or 
under  the  laws  of  any  other  State,  and  having  a  line  of  railroad  built, 
or  partly  built,  to  or  near  any  boundary  of  this  State,  and  desiring  to 
continue  its  line  of  railroad  into  or  through  this  State,  or  any  branch 
thereof,  may,  for  the  purpose  of  acquiring  the  right  to  build  its  line 
of  railroad,  lease  or  purchase  the  property,  rights,  privileges,  lands, 
tenements,  immunities,  and  franchises  of  any  railroad  company  or- 
ganized under  the  laws  of  this  State,  which  said  lease  or  purchase 
shall  carry  with  it  the  right  of  eminent  domain  held  and  acquired  by 
said  company  at  the  time  of  lease  or  sale,  and  thereafter  hold,  use, 
maintain,  build,  construct,  own,  and  operate  the  said  railroad  so  leased 
or  purchased  as  fully  and  to  the  same  extent  as  the  company  organized 
under  the  laws  of  this  State  might  or  could  have  done ;  and  the  rights 
and  powers  of  such  company,  and  its  corporate  name,  may  be  held  and 
used  by  such  foreign  railroad  company  as  will  best  subserve  its  pur- 
pose and  the  building  of  said  line  of  railroad.  ...  In  all  other  mat- 
ters said  foreign  railroad  company  shall  be  subject  to  all  the  provisions 
of  all  acts  in  relation  to  railroads,  the  liabilities  and  forfeitures  thereby 
imposed,  and  may  sue  and  be  sued  in  the  same  manner  as  other  rail- 
road corporations,  and  subject  to  the  same  service  of  process,  and 
shall  keep  an  office  or  offices  in  said  State  as  required  by  .  .  .  the 
Constitution  of  this  State." 

It  was  under  the  provisions  of  this  section  that  the  St.  Louis  and 
San  Francisco  Kail  way  Company,  in  1882,  purchased  from  corpora- 
tions of  Arkansas  the  railroad  already  built  by  them  extending  from 
the  southern  boundary  of  Missouri  to  Fort  Smith  in  Arkansas.  These 
Arkansas  corporations  have  since  maintained  their  separate  organiza- 
tions as  corporations  of  that  State,  but  do  not  operate  railroads.  It 
is,  therefore,  obvious  that  such  purchase  by  the  Missouri  corporation 


SECT.  I.  e.]         ST.    LOUIS,    ETC.    RAILWAY   CO.    V.    JAMES.  745 

of  the  railroad  and  franchises  of  the  Arkansas  companies  did  not  con- 
vert it  into  an  Arkansas  corporation.  The  terms  of  the  statute  show 
that  it  merely  granted  rights  and  powers  to  an  existing  foreign  cor- 
poration, which  was  to  continue  to  exist  as  such,  subject  only  to  cer- 
tain conditions  —  among  others  that  of  keeping  an  oifice  in  the  State, 
so  as  to  be  subject  to  process  of  the  Arkansas  courts. 

It  is  true  that  by  the  subsequent  act  of  1889,  by  the  proviso  to  the 
second  section,  it  was  provided  that  every  railroad  corporation  of  any 
other  State,  which  had  theretofore  leased  or  purchased  any  railroad 
in  Arkansas,  should,  within  sixty  days  from  the  passage  of  the  act, 
file  a  certified  copy  of  its  articles  of  incorporation  or  charter  with 
the  Secretary  of  State,  and  shall  thereupon  become  a  corporation  of 
Arkansas,  anything  in  its  articles  of  incorporation  or  charter  to  the 
contrary  notwithstanding  ;  and  it  appears  that  the  defendant  com- 
pany did  accordingly  file  a  copy  of  its  articles  of  incorporation  with 
the  secretary  of  the  State.  But  whatever  may  be  the  effect  of  such 
legislation,  in  the  way  of  subjecting  foreign  railroad  companies  to 
control  and  regulation  by  the  local  laws  of  Arkansas,  we  cannot  con- 
cede that  it  availed  to  create  an  Arkansas  corporation  out  of  a  foreign 
corpoTation  in  such  a  sense  as  to  make  it  a  citizen  of  Arkansas  within 
the  meaning  of  the  Federal  Constitution  so  as  to  subject  it  as  such  to 
a  suit  by  a  citizen  of  the  State  of  its  origin.  In  order  to  bring  such 
an  artificial  body  as  a  corporation  within  the  spirit  and  letter  of  that 
Constitution,  as  construed  by  the  decisions  of  this  court,  it  would  be 
necessary  to  create  it  out  of  natural  persons,  whose  citizenship  of  the 
State  creating  it  could  be  imputed  to  the  corporation  itself.  But  it  is 
not  pretended  in  the  present  case  that  natural  j^ersous,  resident  in  and 
citizens  of  Arkansas,  were  by  the  legislation  in  question  created  a 
corporation,  and  that  therefore  the  citizenship  of  the  individual  cor- 
porators is  imputable  to  the  corporation. 

It  is  further  contended,  on  behalf  of  the  defendant  in  error,  the 
plaintiff  below,  that,  as  the  plaintiff  described  herself  as  a  citizen  of 
Missouri,  and  the  defendant  company  as  a  citizen  of  Arkansas,  and 
as  the  cause  of  action,  though  arising  in  Missouri,  was  transitory  in 
its  nature,  jurisdiction  was  thus  formally  conferred  upon  the  Circuit 
Court  of  the  United  States  for  the  District  of  Arkansas,  and  that  the 
only  question  left  for  inquiry  was  whether  the  defendant  company, 
alleged  to  be  a  citizen  of  Arkansas,  was  legally  responsible  for  the 
conduct  of  the  Missouri  company  of  the  same  name,  and  such  respon- 
sibility is  supposed  to  be  found  in  the  fact  that  the  railroad  running 
through  both  States  was  under  the  common  management  of  both 
companies. 

But  even  if  it  be  admitted  that  a  common  management  of  a  r.-iilroad 
running  through  two  States,  and  participation  in  its  earnings  and 
losses,  by  two  companies,  might  make  both  responsible,  jointly  and 
severally,  for  a  tortious  cause  of  action,  and  that  such  cause  of  action 
might  be  maintained  in  the  courts  of  either  Sta*-e,  the  question  of  the 


746  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

jurisdiction  of  the  Federal  court  still  remains.  The  defendant  was 
not  content  to  leave  that  question  to  be  decided  by  the  plaintiff's 
allegations,  but  pleaded  that  it  was  in  law  a  corporation  of  the  State 
of  Missouri,  and  that,  therefore,  an  action  could  not  be  maintained 
against  it,  in  tlie  Federal  court,  by  a  citizen  of  that  State.  In  other 
words,  the  defendant  company  claimed  that,  while  it  had  voluntarily 
subjected  itself  to  the  laws  of  Arkansas,  as  interpreted  and  enforced 
by  the  courts  of  that  State,  it  still  remained  a  corporation  of  the  State 
of  Missouri,  disabled  from  suing  or  being  sued  by  a  citizen  of  that 
State  in  a  Federal  court,  and  that  such  disability  was  not  and  could 
not  be  removed  by  State  legislation. 

Tlie  result  of  these  vieivs  is  thct  we  answer  the  second  question 
put  to  us  hy  the  Circuit  Court  of  Appeals  in  the  negative,  and 
to  render  it  unnecessary  to  answer  tlie  other  questions.^ 


Section  II.  —  Exercise  op  Jurisdiction. 


a.    Original  in  Supreme  Court. 

[See  Osborn  v.  Bank  of  United  States,  9  Wheat.  738,  supra,  p.  617; 
Bors  V.  Preston,  111  U.  S.  252,  supra,  p.  628  ;  United  States  v.  Texas, 
143  U.  S.  621,  supra,  p.  676 ;  Ames  v.  Kansas,  111  U.  S.  449,  siqyra, 
p.  686 ;  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  supira,  p.  692 ; 
and  Ex  parte  Vallandigham,  1  Wall.  243,  infra,  p.  763.] 


b.  Appellate. 

MARTIN   u    HUXTEK'S   LESSEE. 
1  Wheaton,  301;  3  Curtis,  562.     1816. 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  from  the  Court  of  Appeals  of  Virginia, 
founded  upon  the  refusal  of  that  court  to  obey  the  mandate  of  this 
court,  requiring  the  judgment  rendered  in  this  very  cause,  at  Feb- 
ruary term,  1813,  to  be  carried  into  due  execution.  The  following 
is  the  judgment  of  the  Court  of  Appeals  rendered  on  the  mandate: 
"The  court  is  unanimously  of  opinion,  that  the  appellate  power  of 

1  Mr.  Justice  Harlax  delivered  a  dissenting  opinion. 


SECT.  II.  b.J  MARTIN    V.    HUNTER'S   LESSEE.  747 

the  Supreme  Court  of  the  United  States  does  not  extend  to  this 
court,  under  a  sound  construction  of  the  Constitution  of  the  United 
States;  that  so  mucli  of  the  25th  section  of  the  act  of  Congress  to 
establish  the  judicial  courts  (A  the  United  States,  as  extends  the 
appellate  jurisdiction  of  the  Supreme  Court  to  this  court,  is  not  in 
pursuance  of  the  Constitution  of  the  United  States;  that  the  writ  of 
error  in  this  cause  was  improvidently  allowed  under  the  authority 
of  that  act;  that  the  proceedings  thereon  in  the  Supreme  Court  were 
coram  non  judice,  in  relation  to  this  court,  and  that  obedience  to  its 
mandate  be  declined  by  the  court." 

The  questions  involved  in  this  judgment  are  of  great  importance 
and  delicacy.  Perhaps  it  is  not  too  much  to  affirm,  that,  upon  their 
right  decision,  rest  some  of  the  most  solid  principles  which  have 
hitherto  been  supposed  to  sustain  and  protect  the  Constitution  itself. 
The  great  respectabilit}',  too,  of  the  court  whose  decisions  Ave  are 
called  upon  to  review,  and  the  entire  deference  which  we  entertain 
for  the  learning  and  ability  of  that  court,  add  much  to  the  difficulty 
of  the  task  which  has  so  unwelcomely  fallen  upon  us.  It  is,  how- 
ever, a  source  of  consolation  that  we  have  had  the  assistance  of 
most  ^able  and  learned  arguments  to  aid  our  inquiries;  and  that  the 
opinion  which  is  now  to  be  pronounced  has  been  weighed  with  every 
solicitude  to  come  to  a  correct  result,  and  matured  after  solemn 
deliberation. 

Before  proceeding  to  the  principal  questions,  it  may  not  be  unfit 
to  dispose  of  some  preliminary  considerations  which  have  grown  out 
of  the  arguments  at  the  bar. 

The  Constitution  of  the  United  States  was  ordained  and  estab- 
lished, not  by  the  States  in  their  sovereign  capacities,  but  emphati- 
cally, as  the  preamble  of  the  Constitution  declares,  by  "the  people 
of  the  United  States."  There  can  be  no  doubt  that  it  was  comj^e- 
tent  to  the  people  to  invest  the  general  government  with  all  the 
powers  which  they  might  deem  proper  and  necessary;  to  extend  or 
restrain  these  powers  according  to  their  own  good  pleasure,  and  to 
give  them  a  paramount  and  supreme  authority.  As  little  doubt  can 
there  be  that  the  people  had  a  right  to  prohibit  to  the  States  the 
exercise  of  any  powers  which  were,  in  their  judgment,  incom])atible 
with  the  objects  of  the  general  compact;  to  make  the  powers  of  the 
State  governments,  in  given  cases,  subordinate  to  those  of  the 
nation,  or  to  reserve  to  themselves  those  sovereign  authorities  which 
they  might  not  choose  to  delegate  to  either.  The  Constitution  was 
not,  therefore,  necessarily  carved  out  of  existing  State  sovereignties, 
nor  a  surrender  of  powers  already  existing  in  State  institutions,  for 
the  powers  of  the  States  depend  U[)on  their  own  constitutions;  and 
tlie  people  of  every  State  had  the  right  to  modify  and  restrain  them, 
according  to  their  own  views  of  policy  or  principle.  On  the  other 
hand,  it  is  perfectly  clear  that  the  sovereign  powers  vested  in  the 
State  governments,  by  their  respective  constitutions,  remained  uual- 


748  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

tered  and  unimpaired,  except  so  far  as  they  were  granted  to  the 
government  of  the  United  States. 

These  deductions  do  not  rest  upon  general  reasoning,  plain  and 
obvious  as  they  seem  to  be.  They  have  been  positively  recognized 
by  one  of  the  articles  in  amendment  of  the  Constitution,  which 
declares  that  "  the  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people." 

The  government,  then,  of  the  United  States,  can  claim  no  powers 
which  are  not  granted  to  it  by  the  Constitution,  and  the  powers 
actually  granted  must  be  such  as  are  expressly  given,  or  given  by 
necessary  implication.  On  the  other  hand,  this  instrument,  like 
every  other  grant,  is  to  have  a  reasonable  construction,  according  to 
the  import  of  its  terms;  and  where  a  power  is  expressly  given  in 
general  terms,  it  is  not  to  be  restrained  to  particular  cases,  unless 
that  construction  grows  out  of  the  context  expressly,  or  by  necessary 
implication.  The  words  are  to  be  taken  in  their  natural  and  obvious 
sense,  and  not  in  a  sense  unreasonably  restricted  or  enlarged. 

The  Constitution,  unavoidably,  deals  in  general  language.  It  did 
not  suit  the  purposes  of  the  people,  in  framing  this  great  charter  of 
our  liberties,  to  provide  for  minute  specifications  of  its  powers,  or 
to  declare  the  means  by  which  those  powers  should  be  carried  into 
execution.  It  was  foreseen  that  this  would  be  a  perilous  and  diffi- 
cult, if  not  an  impracticable,  task.  The  instrument  was  not  intended 
to  provide  merely  for  the  exigencies  of  a  few  years,  but  was  to  endure 
through  a  long  lapse  of  ages,  the  events  of  which  were  locked  up  in 
the  inscrutable  purposes  of  Providence.  It  could  not  be  foreseen 
what  new  changes  and  modifications  of  power  might  be  indispensable 
to  effectuate  the  general  objects  of  the  charter;  and  restrictions  and 
specifications,  which  at  the  present  might  seem  salutary,  might,  in 
the  end,  prove  the  overthrow  of  the  system  itself.  Hence  its  powers 
are  expressed  in  general  terms,  leaving  to  the  legislature,  from  time 
to  time,  to  adopt  its  own  means  to  effectuate  legitimate  objects, 
and  to  mould  and  model  the  exercise  of  its  powers,  as  its  own  wisdom 
and  the  public  interests  should  require. 

With  these  principles  in  view,  principles  in  respect  to  which  no 
difference  of  opinion  ought  to  be  indulged,  let  us  now  proceed  to  the 
interpretation  of  the  Constitution,  so  far  as  regards  the  great  points 
in  controversy. 

The  third  article  of  the  Constitution  is  that  which  must  princi- 
pally attract  our  attention.      [Sections  1  and  2  are  quoted.] 

Such  is  the  language  of  the  article  creating  and  defining  the  judi- 
cial power  of  the  United  States.  It  is  the  voice  of  the  whole  Amer- 
ican people  solemnly  declared,  in  establishing  one  great  department 
of  that  government  which  was,  in  many  respects,  national,  and  in  all 
supreme.  It  is  a  part  of  the  very  same  instrument  which  was  to 
act  not  merely  upon  individuals,  but  upon  States;  and  to  deprive 


SECT.  II.  b.]  MARTIN   V.    HUNTER's   LESSEE  749 

them  altogether  of  the  exercise  of  some  powers  of  sovereignty,  and 
to  restrain  and  regulate  them  in  the  exercise  of  others. 

Let  this  article  be  carefully  weighed  and  considered.  The  lan- 
guage of  the  article  throughout  is  manifestly  designed  to  be  manda- 
tory upon  the  legislature.  Its  obligatory  force  is  so  imperative,  that 
Congress  could  not,  without  a  violation  of  its  duty,  have  refused  to 
carry  it  into  operation.  The  judicial  power  of  the  United  States 
shall  be  vested  (not  may  be  vested)  in  one  supreme  court,  and  in 
such  inferior  courts  as  Congress  may,  from  time  to  time,  ordain  and 
establish.  Could  Congress  have  lawfully  refused  to  create  a  supreme 
court,  or  to  vest  in  it  the  constitutional  jurisdiction  ?  "The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices  dur- 
ing good  behavior,  and  shall,  at  stated  times,  receive,  for  their 
services,  a  compensation  which  shall  not  be  diminished  during  their 
continuance  in  office."  Could  Congress  create  or  limit  any  other 
tenure  of  the  judicial  office  ?  Could  they  refuse  to  pay,  at  stated 
times,  the  stipulated  salary,  or  diminish  it  during  their  continuance 
in  office  ?  But  one  answer  can  be  given  to  these  questions;  it  must 
be  in  the  negative.  The  object  of  the  Constitution  was  to  establish 
three  great  departments  of  government:  the  Legislative,  the  Execu- 
tive, and  the  Judicial  Departments.  The  first  was  to  pass  laws,  the 
second  to  approve  and  execute  them,  and  the  third  to  expound  and 
enforce  them.  "Without  the  latter,  it  would  be  impossible  to  carry 
into  effect  some  of  the  express  provisions  of  the  Constitution.  How, 
otherwise,  could  crimes  against  the  United  States  be  tried  and  pun- 
ished ?  How  could  causes  between  two  States  be  heard  and  deter- 
mined ?  The  judicial  power  must,  therefore,  be  vested  in  some 
coui't,  by  Congress;  and  to  suppose  that  it  was  not  an  obligation 
binding  on  them,  but  might,  at  their  pleasure,  be  omitted  or  declined, 
is  to  suppose  that  under  the  sanction  of  the  Constitution  they  might 
defeat  the  Constitution  itself.  A  construction  which  would  lead 
to  such  a  result  cannot  be  sound. 

The  same  expression,  "shall  be  vested,"  occurs  in  other  parts  of 
the  Constitution,  in  defining  the  powers  of  the  other  co-ordinate 
branches  of  the  government.  The  first  article  declares  tliat  "all 
legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States."  Will  it  be  contended  that  the  legislative  power 
is  nob  absolutely  vested  ?  that  the  words  merely  refer  to  some 
future  act,  and  mean  only  that  the  legislative  power  may  hereafter 
be  vested  ?  The  second  article  declares  that  "the  executive  power 
shall  be  vested  in  a  President  of  the  United  States  of  America." 
Could  Congress  vest  it  in  any  other  person;  or,  is  it  to  await  their 
good  pleasure,  whether  it  is  to  vest  at  all  ?  It  is  apparent  that  such 
a  construction,  in  either  case,  would  be  utterly  inadmissible.  Why, 
then,  is  it  entitled  to  a  better  support  in  reference  to  the  Judicial 
Department  ? 

If,  then,  it  is  a  duty  of  Congress  to  vest  the  judicial  power  of  the 


750  THE   JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

United  States,  it  is  a  duty  to  vest  the  whole  judicial  power.  The 
language,  if  imperative  as  to  one  part,  is  imperative  as  to  all.  If  it 
were  otherwise,  this  anomaly  would  exist,  that  Congress  might  suc- 
cessively refuse  to  vest  the  jurisdiction  in  any  one  class  of  cases 
enumerated  in  the  Constitution  and  thereby  defeat  the  jurisdiction  as 
to  all;  for  the  Constitution  has  not  singled  out  any  class  on  which 
Congress  are  bound  to  act  in  preference  to  others. 

The  next  consideration  is  as  to  the  courts  in  which  the  judicial 
power  shall  be  vested.  It  is  manifest  that  a  supreme  court  must 
be  established;  but  whether  it  be  equally  obligatory  to  establish  infe- 
rior courts,  is  a  question  of  some  difficulty.  If  Congress  may  lawfully 
omit  to  establish  inferior  courts,  it  might  follow,  that  in  some  of  the 
enumerated  cases  the  judicial  power  could  nowhere  exist.  The 
Supreme  Court  can  have  original  jurisdiction  in  two  classes  of 
cases  only,  namely,  in  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  in  cases  in  which  a  State  is  a  party. 
Congress  cannot  vest  any  portion  of  the  judicial  power  of  the  United 
States,  except  in  courts  ordained  and  established  by  itself;  and  if 
in  any  of  the  cases  enumerated  in  the  Constitution,  the  State  courts 
did  not  then  possess  jurisdiction,  the  appellate  jurisdiction  of  the 
Supreme  Court  (admitting  that  it  could  act  on  State  courts)  could 
not  reach  those  cases,  and  consequently  the  injunction  of  the  Con- 
stitution, that  the  judicial  power  "shall  be  vested,"  would  be  dis- 
obeyed. It  would  seem,  therefore,  to  follow,  that  Congress  are 
bound  to  create  some  inferior  courts,  in  which  to  vest  all  that  juris- 
diction which,  under  the  Constitution,  is  exclusively  vested  in  the 
United  States,  and  of  which  the  Supreme  Court  cannot  take  original 
cognizance.  They  might  establish  one  or  more  inferior  courts;  they 
might  parcel  out  the  jurisdiction  among  such  courts,  from  time  to 
time,  at  their  own  pleasure.  But  the  whole  judicial  power  of  the 
United  States  should  be,  at  all  times,  vested  either  in  an  original  or 
appellate  form,  in  some  courts  created  under  its  authority. 

This  construction  will  be  fortified  by  an  attentive  examination  of 
the  second  section  of  the  third  article.  The  words  are  "  the  judicial 
power  shall  extend,"  &o.  Much  minute  and  elaborate  criticism  has 
been  employed  upon  these  words.  It  has  been  argued  that  they  are 
equivalent  to  the  words  "may  extend,"  and  that  "extend"  means  to 
widen  to  new  cases  not  before  within  the  scope  of  the  power.  For 
the  reasons  which  have  been  already  stated,  we  are  of  opinion  that 
the  words  are  used  in  an  imperative  sense.  They  import  an  absolute 
grant  of  judicial  power.  They  cannot  have  a  relative  signification 
applicable  to  powers  already  granted;  for  the  American  people  had 
not  made  any  previous  grant.  The  Constitution  was  for  a  new 
government,  organized  with  new  substantive  powers,  and  not  a  mere 
supplementary  charter  to  a  government  already  existing.  The  con- 
federation was  a  compact  between  States;  and  its  structure  and 
powers  were  wholly  unlike  those  of  the  national  government.     The 


SECT.  II.  b.]  MARTIN    V.    HUNTER'S    LESSEE.  751 

Constitution  was  an  act  of  tlie  people  of  the  United  States  to 
supersede  the  confederation,  and  not  to  be  engrafted  on  it,  as  a  stock 
through  whicli  it  was  to  receive  life  and  nourishment. 

If,  indeed,  the  relative  signification  could  be  fixed  upon  the  term 
"extend,"  it  could  not,  as  we  shall  hereafter  see,  subserve  the  pur- 
poses of  the  argument  in  support  of  which  it  has  been  adduced. 
This  imperative  sense  of  the  words  "shall  extend,"  is  strengthened 
by  the  context.  It  is  declared  that  "  in  all  cases  affecting  ambas- 
sadors, &c.,  the  Supreme  Court  shall  have  original  jurisdiction." 
Could  Congress  withhold  original  jurisdiction  in  these  cases  from 
the  Supreme  Court?  The  clause  proceeds:  "In  all  the  other  cases 
before  mentioned,  the  Supreme  Court  shall  have  appellate  jurisdic- 
tion, both  as  to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations,  as  the  Congress  shall  make."  The  very  exception  here 
shows  that  the  framers  of  the  Constitution  used  the  words  in  an  im- 
perative sense.  What  necessity  could  there  exist  for  this  exception 
if  the  preceding  words  were  not  used  in  that  sense  ?  Without  such 
exception.  Congress  would,  by  the  preceding  words,  have  possessed 
a  complete  power  to  regulate  the  appellate  jurisdiction,  if  the  lan- 
guage were  only  equivalent  to  the  words  "may  have"  appellate  juris- 
diction. It  is  apparent,  then,  that  the  exception  was  intended  as  a 
limitation  upon  the  preceding  words,  to  enable  Congress  to  regulate 
and  restrain  the  appellate  power,  as  the  public  interests  might,  from 
time  to  time,  require. 

Other  clauses  in  the  Constitution  might  be  brought  in  aid  of  this 
construction;  but  a  minute  examination  of  them  cannot  be  neces- 
sary, and  would  occupy  too  much  time.  It  will  be  found  that 
whenever  a  particular  object  is  to  be  effected,  the  language  of  the 
Constitution  is  always  imperative,  and  cannot  be  disregarded  with- 
out violating  the  first  principles  of  public  duty.  On  the  other  hand, 
the  legislative  powers  are  given  in  language  which  implies  discre- 
tion, as  from  the  nature  of  legislative  power  such  a  discretion  must 
ever  be  exercised. 

It  being,  then,  established  that  the  language  of  this  clause  is  im- 
perative, the  next  question  is  as  to  the  cases  to  which  it  sliall  apply. 
The  answer  is  found  in  the  Constitution  itself.  The  judicial  power 
shall  extend  to  all  the  cases  enumerated  in  the  Constitution.  As  the 
mode  is  not  limited,  it  may  extend  to  all  such  cases,  in  any  form,  in 
which  judicial  power  may  be  exercised.  It  may,  therefore,  extend 
to  them  in  the  shape  of  original  or  appellate  jurisdiction,  or  both; 
for  there  is  nothing  in  the  nature  of  the  cases  which  binds  to  the 
exercise  of  the  one  in  preference  to  the  other. 

In  what  cases,  if  any,  is  this  judicial  power  exclusive,  or  exclu- 
sive at  the  election  of  Congress  ?  It  will  be  observed  that  there  are 
two  classes  of  cases  enumerated  in  the  Constitution,  between  which 
a  distinction  seems  to  be  drawn.  The  first  class  includes  cases  aris- 
ing under  the  Constitution,  laws,  and  treaties  of  the  United  States ; 


752  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  and 
cases  of  admiralty  and  maritime  jurisdiction.  In  tliib  class  the  ex- 
pression is,  "and  that  the  judicial  power  shall  extend  to  all  cases;" 
but  in  the  subsequent  part  of  the  clause,  which  embraces  all  the 
other  cases  of  national  cognizance,  and  forms  the  second  class,  the 
word  "all''  is  dropped  seemingly  ex  industria.  Here  the  judicial 
authority  is  to  extend  to  controversies  (not  to  all  controversies)  to 
which  the  United  States  shall  be  a  party,  &c.  From  this  difference 
of  phraseology,  perhaps  a  difference  of  constitutional  intention  may, 
with  propriety,  be  inferred.  It  is  hardly  to  be  presumed  that  the 
variation  in  the  language  could  have  been  accidental.  It  must  have 
been  the  result  of  some  determinate  reason;  and  it  is  not  very  diffi- 
cult to  find  a  reason  sufficient  to  support  the  apparent  change  of 
intention.  In  respect  to  the  first  class,  it  may  well  have  been  the 
intention  of  the  framers  of  the  Constitution  imperatively  to  extend 
the  judicial  power  either  in  an  original  or  appellate  form  to  all  cases; 
and  in  the  latter  class  to  leave  it  to  Congress  to  qualify  the  jurisdic- 
tion, original  or  appellate,  in  such  manner  as  public  policy  might 
dictate. 

The  vital  importance  of  all  the  cases  enumerated  in  the  first  class 
to  the  national  sovereignty  might  warrant  such  a  distinction. 
In  the  first  place,  as  to  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States.  Here  the  State  courts  could  not 
ordinarily  possess  a  direct  jurisdiction.  The  jurisdiction  over  such 
cases  could  not  exist  in  the  State  courts  previous  to  the  adoption  of 
the  Constitution,  and  it  could  not  afterwards  be  directly  conferred 
on  them;  for  the  Constitution  expressly  requires  the  judicial  power 
to  be  vested  in  courts  ordained  and  established  by  the  United  States. 
This  class  of  cases  would  embrace  civil  as  well  as  criminal  jurisdic- 
tion, and  affect  not  only  our  internal  policy,  but  our  foreign  rela- 
tions. It  would,  therefore,  be  perilous  to  restrain  it  in  any  manner 
whatsoever,  inasmuch  as  it  might  hazard  the  national  safety.  The 
same  remarks  may  be  urged  as  to  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  who  are  emphatically  placed  under 
the  guardianship  of  the  law  of  nations;  and  as  to  cases  of  admiralty 
and  maritime  jurisdiction,  the  admiralty  jurisdiction  embraces  all 
questions  of  prize  and  salvage,  in  the  correct  adjudication  of  which 
foreign  nations  are  deeply  interested;  it  embraces  also  maritime 
torts,  contracts,  and  offences,  in  which  the  principles  of  the  law  and 
comity  of  nations  often  form  an  essential  inquiry.  All  these  cases, 
then,  enter  into  the  national  policy,  affect  the  national  rights,  and 
may  comprorait  the  national  sovereignty.  The  original  or  appellate 
jurisdiction  ought  not,  therefore,  to  be  restrained,  but  should  be 
commensurate  with  the  mischiefs  intended  to  be  remedied,  and, 
of  course,  should  extend  to  all  cases  whatsoever. 

A  different  policy  might  well  be  adopted  in  reference  to  the  second 
class  of  cases;  for  although  it  might  be  fit  that  the  judicial  power 


SECT.  II.  b.]  MARTIN   V,    HUNTER'S   LESSEE.  753 

should  extend  to  all  controversies  to  which  the  United  States  should 
be  a  party,  yet  this  power  might  not  have  been  imperatively  given, 
lest  it  should  imply  a  right  to  take  cognizance  of  original  suits 
brought  against  the  United  States  as  defendants  in  their  own  courts. 
It  might  not  have  been  deemed  proper  to  submit  the  sovereignty  of 
the  United  States,  against  their  own  will,  to  judicial  cognizance, 
either  to  enforce  rights  or  to  prevent  wrongs;  and  as  to  the  other 
cases  of  the  second  class,  they  might  well  be  left  to  be  exercised 
under  the  exceptions  and  regulations  which  Congress  might,  in  their 
wisdom,  choose  to  apply.  It  is  also  worthy  of  remark,  that  Con- 
gress seem,  in  a  good  degree,  in  the  establishment  of  the  present 
judicial  system,  to  have  adopted  this  distinction.  In  the  first  class 
of  cases,  the  jurisdiction  is  not  limited  except  by  the  subject-matter; 
in  the  second,  it  is  made  materially  to  depend  upon  the  value  in 
controversy. 

We  do  not,  however,  profess  to  place  any  implicit  reliance  upon 
the  distinction  which  has  here  been  stated  and  endeavored  to  be 
illustrated.  It  has  the  rather  been  brought  into  view  in  deference 
to  the  legislative  opinion,  which  has  so  long  acted  upon  and  enforced 
this  distinction.  But  there  is,  certainly,  vast  weight  in  the  argu- 
ment which  has  been  urged,  that  the  Constitution  is  imperative  upon 
Congress  to  vest  all  the  judicial  power  of  the  United  States,  in  the 
shape  of  original  jurisdiction,  in  the  supreme  and  inferior  courts 
created  under  its  own  authority.  At  all  events,  whether  the  one 
construction  or  the  other  prevail,  it  is  manifest  that  the  judicial 
power  of  the  United  States  is  unavoidably,  in  some  cases,  exclusive 
of  all  State  authority,  and  in  all  others  may  be  made  so  at  the  elec- 
tion of  Congress.  Xo  part  of  the  criminal  jurisdiction  of  the  United 
States  can,  consistently  with  the  Constitution,  be  delegated  to  State 
tribunals.  The  admiralty  and  maritime  jurisdiction  is  of  the  same 
exclusive  cognizance;  and  it  can  only  be  in  those  cases  where,  pre- 
vious to  the  Constitution,  State  tribunals  possessed  jurisdiction  inde- 
pendent of  national  authority,  that  they  can  now  constitutionally 
exercise  a  concurrent  jurisdiction.  Congress,  throughout  the  Judi- 
cial Act,  1  Stats,  at  Large,  73,  and  particularly  in  the  9th,  11th, 
and  13th  sections,  have  legislated  upon  the  supposition  that  in 
all  the  cases  to  which  the  judicial  powers  of  the  United  States  ex- 
tended, they  might  rightfully  vest  exclusive  jurisdiction  in  their  own 
courts. 

But  even  admitting  that  the  language  of  the  Constitution  is  not 
mandatory,  and  that  Congress  may  constitutionally  omit  to  vest  the 
judicial  power  in  courts  of  the  United  States,  it  cannot  be  denied 
that  when  it  is  vested,  it  may  be  exercised  to  the  utmost  constitu- 
tional extent. 

This  leads  us  to  the  consideration  of  the  great  question  as  to  the 
nature  and  extent  of  the  appellate  jurisdiction  of  the  United  States. 
We  have  already  seen  that  appellate  jurisdiction  is  given  by  the 

48 


754  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TI. 

Constitution  to  the  Supreme  Court  in  all  cases  where  it  has  not  orig- 
inal jurisdiction,  subject,  however,  to  such  exceptions  and  regula- 
tions as  Congress  may  prescribe.  Tt  is,  therefore,  capable  of 
embracing  every  case  enumerated  in  the  Constitution,  which  is  not 
exclusively  to  be  decided  by  way  of  original  jurisdiction.  But  the 
exercise  of  appellate  jurisdiction  is  far  from  being  limited  by  the 
terms  of  the  Constitution  to  the  Supreme  Court.  There  can  be  no 
doubt  that  Congress  may  create  a  succession  of  inferior  tribunals, 
in  each  of  which  it  may  vest  appellate  as  well  as  original  jurisdic- 
tion. The  judicial  power  is  delegated  by  the  Constitution  in  the 
most  general  terms,  and  may,  therefore,  be  exercised  by  Congress 
under  every  variety  of  form,  of  appellate  or  original  jurisdiction. 
And  as  there  is  nothing  in  the  Constitution  which  restrains  or 
limits  this  power,  it  must,  therefore,  in  all  other  cases,  subsist  in 
the  utmost  latitude  of  which,  in  its  own  nature,  it  is  susceptible. 

As,  then,  by  the  terms  of  the  Constitution,  the  appellate  jurisdic- 
tion is  not  limited  as  to  the  Supreme  Court,  and  as  to  this  court  it 
may  be  exercised  in  all  other  cases  than  those  of  which  it  has  original 
cognizance,  what  is  there  to  restrain  its  exercise  over  State  tribunals 
in  the  enumerated  cases  ?  The  appellate  power  is  not  limited  by 
the  terms  of  the  third  article  to  any  particular  courts.  The  words 
are,  "  the  judicial  power  (which  includes  appellate  power)  shall  ex- 
tend to  all  cases,"  &c.,  and  "in  all  other  cases  before  mentioned  the 
Supreme  Court  shall  have  appellate  jurisdiction."  It  is  the  case, 
then,  and  not  the  court,  that  gives  the  jurisdiction.  If  the  judicial 
power  extends  to  the  case,  it  will  be  in  vain  to  search  in  the  letter 
of  the  Constitution  for  any  qualification  as  to  the  tribunal  where  it 
depends.  It  is  incumbent,  then,  upon  those  who  assert  snch  a  qual- 
ification to  show  its  existence  by  necessary  implication.  If  the  text 
be  clear  and  distinct,  no  restriction  upon  its  plain  and  obvious 
import  ought  to  be  admitted,  unless  the  inference  be  irresistible. 

If  the  Constitution  meant  to  limit  the  appellate  jurisdiction  to 
cases  pending  in  the  courts  of  the  United  States,  it  would  necessarily 
follow  that  the  jurisdiction  of  these  courts  would,  in  all  the  cases 
enumerated  in  the  Constitution,  be  exclusive  of  State  tribunals. 
How  otherwise  could  the  jurisdiction  extend  to  all  cases  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United  States  or 
to  all  cases  of  admiralty  and  maritime  jurisdiction  ?  If  some  of 
these  cases  might  be  entertained  by  State  tribunals,  and  no  appel- 
late jurisdiction  as  to  them  should  exist,  then  the  appellate  power 
would  not  extend  to  all,  but  to  some,  cases.  If  State  tribunals 
might  exercise  concurrent  jurisdiction  over  all  or  some  of  the  other 
classes  of  cases  in  the  Constitution  without  control,  then  the  appel- 
late jurisdiction  of  the  United  States  might,  as  to  such  cases,  have 
no  real  existence,  contrary  to  the  manifest  intent  of  the  Constitution. 
Under  such  circumstances,  to  give  effect  to  the  judicial  power,  it 
must  be  construed  to  be  exclusive;   and  this   not  only   when  the 


SKCT.  II.  b.]  MARTIN   V.    HUNTER'S   LESSEE.  756 

casus  foideris  should  arise  directly,  but  when  it  should  arise,  inci- 
dentally, in  cases  pending  in  State  courts.  This  construction  would 
abridge  the  jurisdiction  of  such  court  far  more  than  has  been  ever 
contemplated  in  any  act  of  Congress. 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be 
vested  in  Congress  to  establish,  or  not  to  establish,  inferior  courts 
at  tlieir  own  pleasure,  and  Congress  should  not  establish  such  courts, 
the  appellate  jurisdiction  of  the  Supreme  Court  would  have  nothing 
to  act  upon,  unless  it  could  act  upon  cases  pending  in  the  State 
courts.  Under  such  circumstances,  it  must  be  held  that  the  appel- 
late power  would  extend  to  State  courts;  for  the  Constitution  is  per- 
emptory that  it  shall  extend  to  certain  enumerated  cases,  which  cases 
could  exist  in  no  other  courts.  Any  other  construction,  upon  this 
supposition,  would  involve  this  strange  contradiction,  that  a  discre- 
tionary power  vested  in  Congress,  and  which  they  might  rightfully 
omit  to  exercise,  would  defeat  the  absolute  injunctions  of  the  Con- 
stitution in  relation  to  the  whole  appellate  power. 

But  it  is  plain  that  the  framers  of  the  Constitution  did  contem- 
plate that  cases  within  the  judicial  cognizance  of  the  United  States 
not  only  might  but  would  arise  in  the  State  courts,  in  the  exercise 
of  their  ordinary  jurisdiction.  With  this  view  the  sixth  article  de- 
clares, that  "this  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land,  and  the  judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.-'  It  is  obvious  that  this  obligation 
is  imperative  upon  the  State  judges  in  their  official,  and  not  merely 
in  their  private,  capacities.  From  the  very  nature  of  their  judicial 
duties  they  would  be  called  upon  to  pronounce  the  law  applicable  to 
the  case  in  judgment.  They  were  not  to  decide  merely  according  to 
the  laws  or  Constitution  of  the  State,  but  according  to  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States,  "the  supreme  law  of 
the  land." 

A  moment's  consideration  will  show  us  the  necessity  and  propri- 
ety of  this  provision  in  cases  where  the  jurisdiction  of  the  State 
courts  is  unquestionable.  Suppose  a  contract  for  the  payment  of 
money  is  made  between  citizens  of  the  same  State,  and  performance 
thereof  is  sought  in  the  courts  of  that  State;  no  person  can  doubt 
that  the  jurisdiction  (jompletely  and  exclusively  attaches,  in  the 
first  instance,  to  such  courts.  Suppose,  at  the  trial,  the  defendant 
sets  up  in  his  defence  a  tender  under  a  State  law,  making  paper 
money  a  good  tender,  or  a  State  law,  impairing  the  obligation  of 
such  contract,  which  law,  if  binding,  would  defeat  the  suit.  The 
Constitution  of  the  United  States  has  declared  that  no  State  shall 
make  anything  but  gold  or  silver  coin  a  tender  in  payment  of  debts, 
or  pass  a  law  impairing  the  obligation  of  contracts.     If  Congress 


756  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

shall  not  have  passed  a  law  providing  for  the  removal  of  such  a  suit 
to  the  courts  of  the  United  States,  must  not  the  State  court  proceed 
to  hear  and  determine  it  ?  Can  a  mere  plea  in  defence  be  of  itself  a 
bar  to  further  proceedings,  so  as  to  prohibit  an  inquiry  into  its 
truth  or  legal  propriety,  when  no  other  tribunal  exists  to  whom  judi- 
cial cognizance  of  such  cases  is  confided  '!  Suppose  an  indictment 
for  a  crime  in  a  State  court,  and  the  defendant  should  allege  in  his 
defence  that  the  crime  was  created  by  an  ex  post  facto  act  of  the 
State,  must  not  the  State  court,  in  the  exercise  of  a  jurisdiction 
which  has  already  rightfully  attached,  have  a  right  to  pronounce  on 
the  validity  and  sufficiency  of  the  defence  ?  It  would  be  extremely 
difficult,  upon  any  legal  principles,  to  give  a  negative  answer  to  these 
inquiries.  Innumerable  instances  of  the  same  sort  might  be  stated 
in  illustration  of  the  position;  and  unless  the  State  courts  could 
sustain  jurisdiction  in  such  cases,  this  clause  of  the  sixth  article 
would  be  without  meaning  or  effect,  and  public  mischiefs,  of  a  most 
enormous  magnitude,  would  inevitably  ensue. 

It  must,  therefore,  be  conceded  that  the  Constitution  not  only 
contemplated,  but  meant  to  provide  for  cases  within  the  scope  of  the 
judicial  power  of  the  United  States,  which  might  yet  depend  before 
State  tribunals.  It  was  foreseen  that,  in  the  exercise  of  their  ordi- 
nary jurisdiction,  State  courts  would  incidentally  take  cognizance  of 
cases  arising  under  the  Constitution,  the  laws,  and  treaties  of  the 
United  States.  Yet  to  all  these  cases  the  judicial  power,  by  the 
very  terms  of  the  Constitution,  is  to  extend.  It  cannot  extend  by 
original  jurisdiction  if  that  was  already  rightfully  and  exclusively 
attached  in  the  State  courts,  which  (as  has  been  already  shown) 
may  occur;  it  must  therefore  extend  by  appellate  jurisdiction  or  not 
at  all.  It  would  seem  to ,  follow  that  the  appellate  power  of  the 
United  States  must,  in  such  cases,  extend  to  State  tribunals;  and  if 
in  such  cases,  there  is  no  reason  why  it  should  not  equally  attach 
upon  all  others  within  the  purview  of  the  Constitution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  State 
courts  is  inconsistent  with  the  genius  of  our  governments,  and  the 
spirit  of  the  Constitution.  That  the  latter  was  never  designed  to 
act  upon  State  sovereignties,  but  only  upon  the  people,  and  that,  if 
the  power  exists,  it  will  materially  impair  the  sovereignty  of  the 
States,  and  the  independence  of  their  courts.  We  cannot  yield  to 
the  force  of  this  reasoning;  it  assumes  principles  which  we  cannot 
admit,  and  draws  conclusions  to  which  we  do  not  yield  our  assent. 

It  is  a  mistake  that  the  Constitution  was  not  designed  to  operate 
upon  States,  in  their  corporate  capacities.  It  is  crowded  with  pro- 
visions which  restrain  or  annul  the  sovereignty  of  the  States  in  some 
of  the  highest  branches  of  their  prerogatives.  The  tenth  section  of 
the  first  article  contains  a  long  list  of  disabilities  and  prohibitions 
imposed  upon  the  States.  Surely,  when  such  essential  portions  of 
State  sovereignty  are  taken  away,  or  prohibited  to  be  exercised,  it 


SECT.  II.  b.]  MARTIN    V.    IIUNTER's   LESSEE.  757 

cannot  be  correctly  asserted  that  the  Constitution  does  not  act  upon 
the  States.  The  language  of  the  Constitution  is  also  imperative 
upon  the  States,  as  to  the  performance  of  many  duties.  It  is  im- 
perative upon  the  State  legislatures  to  make  laws  prescribing  the 
time,  places,  and  manner  of  holding  elections  for  senators  and  rep- 
resentatives, and  for  electors  of  President  and  Vice-President.  And 
in  these,  as  well  as  some  other  cases,  Congress  have  a  right  to  revise, 
amend,  or  supersede  the  laws  which  may  be  passed  by  State  legisla- 
tures. When,  therefore,  the  States  are  stripped  of  some  of  the 
highest  attributes  of  sovereignty,  and  the  same  are  given  to  the 
United  States;  when  the  legislatures  of  the  States  are,  in  some 
respects,  under  the  control  of  Congress,  and  in  every  case  are,  under 
the  Constiution,  bound  by  the  paramount  authority  of  the  United 
States;  it  is  certainly  difficult  to  support  the  argument  that  the 
appellate  power  over  the  decisions  of  State  courts  is  contrary  to  the 
genius  of  our  institutions.  The  courts  of  the  United  States  can, 
without  question,  revise  the  proceedings  of  the  executive  and  legis- 
lative authorities  of  the  States,  and  if  they  are  found  to  be  contrary 
to  the  Constitution,  may  declare  them  to  be  of  no  legal  validity. 
Surely,  the  exercise  of  the  same  right  over  judicial  tribunals  is  not 
a  higher  or  more  dangerous  act  of  sovereign  power. 

Nor  can  such  a  right  be  deemed  to  impair  the  independence  of 
State  judges.  It  is  assuming  the  very  ground  in  controversy  to 
assert  that  they  possess  an  absolute  independence  of  the  United 
States.  In  respect  to  the  powers  granted  to  the  United  States,  they 
are  not  independent;  they  are  expressly  bound  to  obedience  by  the 
letter  of  the  Constitution;  and  if  they  should  unintentionally  tran- 
scend their  authority,  or  misconstrue  the  Constitution,  there  is  no 
more  reason  for  giving  their  judgments  an  absolute  and  irresistible 
force,  than  for  giving  it  to  the  acts  of  the  other  co-ordinate  depart- 
ments of  State  sovereignty. 

It  is  further  argued,  that  no  great  public  mischief  can  result  from 
a  construction  which  shall  limit  the  appellate  power  of  the  United 
States  to  cases  in  their  own  courts:  first,  because  State  judges  are' 
bound  by  an  oath  to  support  the  Constitution  of  the  United  States,. 
and  must  be  presumed  to  be  men  of  learning  and  integrity;  and,, 
secondly,  because  Congress  must  have  an  unquestionable  right  tO' 
remove  all  cases  within  the  scope  of  the  judicial  power,  from  the 
State  courts  to  the  courts  of  the  United  States,  at  any  time  before 
final  judgment,  though  not  after  final  judgment.  As  to  the  first 
reason,  —  admitting  that  the  judges  of  the  State  courts  are,  and 
always  will  be,  of  as  much  learning,  integrity,  and  wisdom  ns  those 
of  the  courts  of  the  United  States  (which  we  very  cheerfully  admit), 
it  does  not  aid  the  argument.  It  is  manifest  that  the  Constitution 
has  proceeded  upon  a  theory  of  its  own,  and  given  or  withheld 
powers  according  to  the  judgment  of  the  American  people,  by  whom 


758  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

it  was  adopted.  We  can  only  construe  its  powers,  and  cannot  in- 
quire into  the  policy  or  principles  which  induced  the  grant  of  them. 
The  Constitution  has  presumed  (whether  rightly  or  wrongly  we  do 
not  inquire)  that  State  attachments,  State  prejudices,  State  jealousies, 
and  State  interests,  might  sometimes  obstruct,  or  control,  or  be  sup- 
posed to  obstruct  or  control,  the  regular  administration  of  justice. 
Hence,  in  controversies  between  States ;  between  citizens  of  different 
States;  between  citizens  claiming  grants  under  different  States;  be- 
tween a  State  and  its  citizens,  or  foreigners,  and  between  citizens 
and  foreigners,  it  enables  the  parties,  under  the  authority  of  Con- 
gress, to  have  the  controversies  heard,  tried,  and  determined  before 
the  national  tribunals.  No  other  reason  than  that  which  has  been 
stated  can  be  assigned,  why  some,  at  least,  of  those  cases  should  not 
have  been  left  to  the  cognizance  of  the  State  courts.  In  respect  to 
the  other  enumerated  cases  —  the  cases  arising  under  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States,  cases  affecting  am- 
bassadors and  other  public  ministers,  and  cases  of  admiralty  and 
maritime  jurisdiction  —  reasons  of  a  higher  and  more  extensive 
nature,  touching  the  safety,  peace,  and  sovereignty  of  the  nation, 
might  well  justify  a  grant  of  exclusive  jurisdiction. 

This  is  not  all.  A  motive  of  another  kind,  perfectly  compatible 
with  the  most  sincere  respect  for  State  tribunals,  might  induce  the 
grant  of  appellate  power  over  their  decisions.  That  motive  is  the 
importance,  and  even  necessity  of  uniformity  of  decisions  through- 
out the  whole  United  States,  upon  all  subjects  within  the  purview 
of  the  Constitution.  Judges  of  equal  learning  and  integrity,  in 
different  States,  might  differently  interpret  a  statute,  or  a  treaty  of 
the  United  States,  or  even  the  Constitution  itself.  If  there  were 
no  revising  authority  to  control  these  jarring  and  discordant  judg- 
ments, and  harmonize  them  into  uniformity,  the  laws,  the  treaties, 
and  the  Constitution  of  the  United  States  would  be  different  in 
different  States,  and  might  perhaps  never  have  precisely  the  same 
construction,  obligation,  or  efficacy  in  any  two  States.  The  public 
mischiefs  that  would  attend  such  a  state  of  things  would  be^  truly 
deplorable;  and  it  cannot  be  believed  that  they  could  have  escaped 
the  enlightened  convention  which  formed  the  Constitution.  What, 
indeed,  might  then  have  been  only  prophecy  has  now  become  fact; 
and  the  appellate  jurisdiction  must  continue  to  be  the  only  adequate 
remedy  for  such  evils. 

There  is  an  additional  consideration,  which  is  entitled  to  great 
weight.  The  Constitution  of  the  United  States  was  designed  for  the 
common  and  equal  benefit  of  all  the  people  of  the  United  States. 
The  judicial  power  was  granted  for  the  same  benign  and  salutary 
purposes.  It  was  not  to  be  exercised  exclusively  for  the  benefit  of 
parties  who  might  be  plaintiffs,  and  would  elect  the  national  forum, 
but  also  for  the  protection  of  defendants  who  might  be  entitled  to 
try  their  rights,  or  assert  their  privileges,  before  the  same  forum. 


SECT.  II.  b.]  MARTIN    V.    HDNTER'S   LESSEE.  759 

Yet,  if  the  construction  contended  for  be  correct,  it  will  follow,  that 
as  the  plaintiff  may  always  elect  the  State  court,  the  defendant  may 
be  deprived  of  all  the  security  which  the  Constitution  intended  in 
aid  of  his  rights.  Such  a  state  of  things  can,  in  no  respect,  be  con- 
sidered as  giving  equal  rights.  To  obviate  this  di£fi.culty,  we  are 
referred  to  the  power  which  it  is  admitted  Congress  possess  to 
remove  suits  from  State  courts  to  the  national  courts ;  and  this  forms 
the  second  ground  upon  which  the  argument  we  are  considering  has 
been  attempted  to  be  sustained. 

This  power  of  removal  is  not  to  be  found  in  express  terms  in  any 
part  of  the  Constitution;  if  it  be  given,  it  is  only  given  by  implica- 
tion, as  a  power  necessary  and  proper  to  carry  into  eifect  sorhe 
express  power.  The  power  of  removal  is  certainly  not,  in  strictness 
of  language;  it  presupposes  an  exercise  of  original  jurisdiction  to 
have  attached  elsewhere.  The  existence  of  this  power  of  removal 
is  familiar  in  courts  acting  according  to  the  course  of  the  common 
law  in  criminal  as  well  as  civil  cases,  and  it  is  exercised  before  as 
well  as  after  judgment.  But  this  is  always  deemed  in  botli  cases  an 
exercise  of  appellate,  and  not  of  original  jurisdiction.  If,  then,  the 
right  of  removal  be  included  in  the  appellate  jurisdiction,  it  is  only 
because  it  is  one  mode  of  exercising  that  power,  and  as  Congress  is 
not  limited  by  the  Constitution  to  any  particular  mode,  or  time  of 
exercising  it,  it  may  authorize  a  removal  either  before  or  after 
judgment.  The  time,  the  process,  and  the  manner  must  be  subject 
to  its  absolute  legislative  control.  A  writ  of  error  is,  indeed,  but  a 
process  which  removes  the  record  of  one  court  to  the  possession  of 
another  court,  and  enables  the  latter  to  inspect  the  proceedings, 
and  give  such  judgment  as  its  own  opinion  of  the  law  and  justice  of 
the  case  may  warrant.  There  is  nothing  in  the  nature  of  the  process 
which  forbids  it  from  being  applied,  by  the  legislature,  to  interloc- 
utory as  well  as  final  judgments.  And  if  the  right  of  removal  from 
State  courts  exists  before  judgment,  because  it  is  included  in  the 
appellate  power,  it  must,  for  the  same  reason,  exist  after  judgment. 
And  if  the  appellate  power  by  the  Constitution  does  not  include 
cases  pending  in  State  courts,  the  right  of  removal,  which  is  but  a 
mode  of  exercising  that  power,  cannot  be  applied  to  them.  Precisely 
the  same  objections,  therefore,  exist  as  to  the  right  of  removal  before 
judgment,  as  after,  and  both  must  stand  or  fall  together.  Nor,  in- 
deed, would  the  force  of  the  arguments  on  either  side  materially 
vary,  if  the  right  of  removal  were  an  exercise  of  original  jurisdiction. 
It  would  equally  trench  upon  the  jurisdiction  and  independence  of 
State  tribunals. 

The  remedy,  too,  of  removal  of  suits  would  be  utterly  inadequate  to 
the  purposes  of  the  Constitution,  if  it  could  act  only  on  the  parties, 
and  not  upon  the  State  courts.  In  respect  to  criminal  ])rosecutions, 
the  diihculty  seems  admitted  to  be  insurmountable;  and.  in  respect 
to  civil  suits,  there  would,  iu  many  cases,  be  rights  without  corre- 


760  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

spending  remedies.  If  State  courts  should  deny  the  constitutionality 
of  the  authority  to  remove  suits  from  their  cognizance,  in  what 
manner  could  they  be  compelled  to  relinquish  the  jurisdiction  ?  In 
respect  to  criminal  cases,  there  would  at  once  be  an  end  of  all  con- 
trol, and  the  State  decisions  would  be  paramount  to  the  Constitution  j 
and  though  in  civil  suits  the  courts  of  the  United  States  might  act 
upon  the  parties,  yet  the  State  courts  might  act  in  the  same  wayj 
and  this  conflict  of  jurisdictions  would  not  only  jeopardize  private 
rights,  but  bring  into  imminent  peril  the  public  interests. 

On  the  whole,  the  court  are  of  opinion  that  the  appellate  power 
of  the  United  States  does  extend  to  cases  pending  in  the  State  courts ; 
and  that  the  25th  section  of  the  Judiciary  Act,  which  authorizes  the 
exercise  of  this  jurisdiction  in  the  specified  cases,  by  a  writ  of  error, 
is  supported  by  the  letter  and  spirit  of  the  Constitution.  We  find 
no  clause  in  that  instrument  which  limits  this  power;  and  we  dare 
not  interpose  a  limitation  where  the  people  have  not  been  disposed 
to  create  one. 

Strong  as  this  conclusion  stands  upon  the  general  language  of  the 
Constitution,  it  may  still  derive  support  from  other  sources.  It  is 
an  historical  fact,  that  this  exposition  of  the  Constitution,  extend- 
ing its  appellate  power  to  State  .courts,  was,  previous  to  'its  adop- 
tion^ uniformly  and  publicly  avowed  by  its  friends,  and  admitted 
by  its  enemies,  as  the  basis  of  their  respective  reasonings,  both  in 
and  out  of  the  State  conventions.  It  is  an  historical  fact,  that  at 
the  time  when  the  Judiciary  Act  was  submitted  to  the  deliberations 
of  the  first  Congress,  composed,  as  it  was,  not  only  of  men  of  great 
learning  and  ability,  but  of  men  who  had  acted  a  principal  part  in 
framing,  supporting,  or  opposing  that  Constitution,  the  same  expo- 
sition was  explicitly  declared  and  admitted  by  the  friends  and  by  the 
opponents  of  that  system.  It  is  an  historical  fact,  that  the  Supreme 
Court  of  the  United  States  have,  from  time  to  time,  sustained  this 
appellate  jurisdiction  in  a  great  variety  of  cases,  brought  from  the 
tribunals  of  many  of  the  most  important  States  in  the  Union,  and 
that  no  State  tribunal  has  ever  breathed  a  judicial  doubt  on  the  sub- 
ject, or  declined  to  obey  the  mandate  of  the  Supreme  Court,  until 
the  present  occasion.  This  weight  of  contemporaneous  exposition 
by  all  parties,  this  acquiescence  of  enlightened  State  courts,  and 
these  judicial  decisions  of  the  Supreme  Court  through  so  long  a 
period,  do,  as  we  think,  place  the  doctrine  upon  a  foundation  of 
authority  which  cannot  be  shaken,  without  delivering  over  the  sub- 
ject to  perpetual  and  irremediable  doubts. 

The  next  question  which  has  been  argued,  is,  whether  the  case  at 
bar  be  within  the  purview  of  the  25th  section  of  the  Judiciary  Act, 
so  that  this  court  may  rightfully  sustain  the  present  writ  of  error. 
This  section,  stripped  of  passages  unimportant  in  this  inquiry,  enacts, 
in  substance,  that  a  final  judgment  or  decree  in  any  suit  in  the 
highest  court  of  law  or  equity  of  a  State,  where  is  drawn  in  question 


SECT.  II.  b.]  MARTIN   V.    HUNTER's   LESSEE.  761 

the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under, 
the  United  States,  and  the  decision  is  against  their  validity;  or 
where  is  drawn  in  question  the  validity  of  a  statute  of,  or  an 
authority  exercised  under,  any  State,  on  the  ground  of  their  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  such,  their  validity;  or  of  the  Con- 
stitution, or  of  a  treaty  or  statute  of,  or  commission  held  under,  the 
United  States,  and  the  decision  is  against  the  title,  right,  privilege, 
or  exemption,  specially  set  up  or  claimed  by  either  party  under  such 
clause  of  the  said  Constitution,  treaty,  statute,  or  commission,  may 
be  re-examined  and  reversed  or  affirmed  in  the  Supreme  Court  of 
the  United  States,  upon  a  writ  of  error,  in  the  same  manner,  and 
under  the  same  regulations,  and  the  writ  shall  have  the  same  effect 
as  if  the  judgment  or  decree  complained  of  had  been  rendered  or 
passed  in  a  Circuit  Court,  and  the  proceeding  upon  the  reversal  shall 
also  be  the  same,  except  that  the  Supreme  Court,  instead  of  remand- 
ing the  cause  for  a  final  decision,  as  before  provided,  may,  at  their 
discretion,  if  the  cause  shall  have  been  once  remanded  before,  pro- 
ceed to  a  final  decision  of  the  same,  and  award  execution.  But  no 
other  error  shall  be  assigned  or  regarded  as  a  ground  of  reversal  in 
any  such  case  as  aforesaid,  than  such  as  appears  upon  the  face  of  the 
record,  and  immediately  respects  the  before-mentioned  question  of 
vaidity,  or  construction  of  the  said  Constitution,  treaties,  statutes, 
commissions,  or  authorities  in  dispute. 

That  the  present  writ  of  error  is  founded  upon  a  judgment  of  the 
court  below,  which  drew  in  question  and  denied  the  validity  of  a 
statute  of  the  United  States,  is  incontrovertible,  for  it  is  apparent 
upon  the  face  of  the  record.  That  tliis  judgment  is  final  upon  the 
rights  of  the  parties  is  equally  true;  for  if  well  founded,  the  former 
judgment  of  that  court  was  of  conclusive  authority,  and  the  former 
judgment  of  this  court  utterly  void.  The  decision  was,  therefore, 
equivalent  to  a  perpetual  stay  of  proceedings  upon  the  mandate,  and 
a  perpetual  denial  of  all  the  rights  acquired  under  it.  The  case, 
then,  falls  directly  within  the  terms  of  the  act.  It  is  a  final  judg- 
ment in  a  suit  in  a  State  court,  denying  the  validity  of  a  statute 
of  the  United  States ;  and  unless  a  distinction  can  be  made  between 
proceedings  under  a  mandate,  and  proceedings  in  an  original  suit,  a 
writ  of  error  is  the  proper  remedy  to  revise  that  judgment.  In  our 
opinion  no  legal  distinction  exists  between  the  cases. 

In  causes  remanded  to  the  Circuit  Courts,  if  the  mandate  be  not 
correctly  executed,  a  writ  of  error  or  appeal  has  always  been  sup- 
posed to  be  a  proper  remedy,  and  has  been  recognized  as  such  in  the 
former  decisions  of  this  court.  The  statute  gives  the  same  effect  to 
writs  of  error  from  the  judgments  of  State  courts  as  of  the  Circuit 
Courts;  and  in  its  terms  provides  for  proceedings  where  the  same 
cause  may  be  a  second  time  brought  up  on  writ  of  error  before  the 
Supreme  Court.     There  is  no  limitation  or  description  of  the  cases 


762  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI, 

to  which  the  second  writ  of  error  may  be  applied;  and  it  caght, 
therefore,  to  be  coextensive  with  the  cases  which  fall  within  the 
mischiefs  of  the  statute.  It  will  hardly  be  denied  that  this  cause 
stands  in  that  predicament;  and  if  so,  then  the  appellate  jurisdiction 
of  this  court  has  rightfully  attached. 

[The  nature  of  the  case  in  the  courts  of  Virginia  is  explained,  to 
show  that  the  decision  of  the  Supreme  Court  of  that  State  denied  to 
appellant  a  right  claimed  under  a  treaty  of  the  United  States.] 

The  objection  urged  at  the  bar  is,  that  this  court  cannot  inquire 
into  the  title,  but  simply  into  the  correctness  of  the  construction 
put  upon  the  treaty  by  the  Court  of  Appeals ;  and  that  their  judg- 
ment is  not  re-examinable  here,  unless  it  appear  on  the  face  of  the 
record  that  some  construction  was  put  upon  the  treaty.  If,  there- 
lore,  that  court  might  have  decided  the  case  upon  the  invalidity  of 
the  title  (and,  non  constat,  that  they  did  not),  independent  of  the 
treaty,  there  is  an  end  of  the  appellate  jurisdiction  of  this  court.  In 
support  of  this  objection,  much  stress  is  laid  upon  the  last  clause  of 
the  section,  which  declares  that  no  other  cause  shall  be  regarded  as 
a  ground  of  reversal  than  such  as  appears  on  the  face  of  the  record 
and  immediately  respects  the  construction  of  the  treaty,  &c.,  in 
dispute. 

If  this  be  the  true  construction  of  the  section,  it  will  be  wholly 
inadequate  for  the  purposes  which  it  professes  to  have  in  view,  and 
may  be  evaded  at  pleasure.  But  we  see  no  reason  for  adopting  this 
narrow  construction;  and  there  are  the  strongest  reasons  against  it, 
founded  upon  the  words  as  well  as  the  intent  of  the  legislature. 
What  is  the  case  for  which  the  body  of  the  section  provides  a  remedy 
by  writ  of  error  ?  The  answer  must  be  in  the  words  of  the  section, 
a  suit  where  is  drawn  in  question  the  construction  of  a  treaty,  and 
the  decision  is  against  the  title  set  up  by  the  party.  It  is,  therefore, 
the  decision  against  the  title  set  up  with  reference  to  the  treaty,  and 
not  the  mere  abstract  construction  of  the  treaty  itself,  upon  which 
the  statute  intends  to  found  the  appellate  jurisdiction.  How,  in- 
deed, can  it  be  possible  to  decide  whether  a  title  be  within  the  pro- 
tection of  a  treaty,  until  it  is  ascertained  what  that  title  is,  and 
whether  it  have  a  legal  validity  ?  From  the  very  necessity  of  the 
case,  there  must  be  a  preliminary  inquiry  into  the  existence  and 
structure  of  the  title,  bofore  the  court  can  construe  the  treaty  in 
reference  to  that  title.  If  the  court  below  should  decide  that  the  title 
was  bad,  and,  therefore,  not  protected  by  the  treaty,  must  not  this 
court  have  a  power  to  decide  the  title  to  be  good,  and,  therefore,  pro- 
tected by  the  treaty  ?  Is  not  the  treaty,  in  both  instances,  equally 
construed,  and  the  title  of  the  party,  in  reference  to  the  treaty, 
equally  ascertained  and  decided  ?  Nor  does  the  clause  relied  on  m 
the  objection  impugn  this  construction.  It  requires  that  the  error 
upon  which  the  appellate  court  is  to  decide  shall  appear  on  the 
face  of  the  record,  and   immediately  respect  the   questions   before, 


SECT.  !I.  b.]  EX  PAETE   VALLANDIGHAM.  763 

mentioned  in  the  section.  One  of  the  questions  is  as  to  the  con- 
struction of  a  treaty  upon  a  title  specially  set  up  by  a  party,  and 
every  error  that  immediately  respects  that  question  must,  of  course, 
be  within  the  cognizance  of  the  court.  The  title  set  up  in  this  case 
is  apparent  upon  the  face  of  the  record,  and  immediately  respects 
the  decision  of  that  question;  any  error,  therefore,  in  respect  to  that 
title  must  be  re-examinable,  or  the  case  could  never  be  presented  to 
the  court. 

The  restraining  clause  was  manifestly  intended  for  a  very  differ- 
ent purpose.  It  was  foreseen  that  the  parties  might  claim  under 
various  titles,  and  might  assert  various  defences,  altogether  inde- 
pendent of  each  other.  The  court  might  admit  or  reject  evidence 
applicable  to  one  particular  title,  and  not  to  all,  and  in  such  cases  it 
was  the  intention  of  Congress  to  limit  what  would  otherwise  have 
unquestionably  attached  to  the  court,  the  right  of  revising  all  the 
points  involved  in  the  cause.  It  therefore  restrains  this  right  to 
such  errors  as  respect  the  questions  specified  in  the  section;  and  in 
this  view  it  has  an  appropriate  sense,  consistent  with  the  preceding 
clauses.  We  are,  therefore,  satisfied,  that,  upon  principle,  the  case 
was  rightfully  before  us,  and  if  the  points  were  perfectly  new,  we 
should  not  hesitate  to  assert  the  jurisdiction. 

But  the  point  has  been  already  decided  by  this  court  upon  solemn 
argument.  In  Smith  v.  The  State  of  Maryland,  6  Cranch,  286,  pre- 
cisely the  same  objection  was  taken  by  counsel,  and  overruled  by  the 
unanimous  opinion  of  the  court.  That  case  was,  in  some  respects, 
stronger  than  the  present;  for  the  court  below  decided,  expressly, 
that  the  party  had  no  title,  and,  therefore,  the  treaty  could  not 
operate  upon  it.  This  court  entered  into  an  examination  of  that 
question,  and  being  of  the  same  opinion,  affirmed  the  judgment. 
There  cannot,  then,  be  an  authority  which  could  more  completely 
govern  the  present  question.^ 


Ex  PARTE  YALLAXDIGHAM. 

1  Wallace,  243.     18G3. 

[This  was  an  original  proceeding  in  the  Supreme  Court  for  a  cer- 
tiorari to  the  Judge  Advocate  General  of  the  army  to  send  up  for 
review  the  proceedings  of  a  military  commission  by  which  one  Val- 
landigham  had  been  tried  and  sentenced  to  imprisonment  for  violat- 
ing an  order  of  Major-General  Burnside,  commanding  the  military 
Department  of  Ohio,  declaring  that  any  person  found  within  his  lines 
who  should  express  sympathies  for  those  in  arms  against  the  govern- 

1  Mr.  Justice  Johnson  delivered  a  concurring  opinion. 


764  THE  JUDICIAL   DEPARTxMENT.  [CHAP.  VI. 

iiient,  or  should  commit  acts  for  the  benefit  of  its  enemies,  would  be 
punished,  which  sentence  had  been  approved  by  Major-General  Burn- 
side,  but  commuted  by  the  President  to  being  put  beyond  the  mill- 
tary  lines  of  the  United  States.] 

Mii.  Justice  Wayne,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

General  Burnside  acted  in  the  matter  as  the  general  commanding 
the  Ohio  Department,  in  conformity  with  the  instructions  for  the 
government  of  the  armies  of  the  United  States,  approved  by  the 
President  of  the  United  States,  and  published  by  the  Assistant 
Adjutant-General,  by  order  of  the  Secretary  of  War,  on  the  24th  of 
April,  1863. 

It  is  affirmed  in  these  instructions  (§  1,  IF  13)  that  military  juris- 
diction is  of  two  kinds.  First,  that  which  is  conferred  and  defined 
by  statute;  second,  that  which  is  derived  from  the  common  law  of 
war.  "  Military  offences,  under  the  statute,  must  be  tried  in  the 
manner  therein  directed ;  but  military  offences,  which  do  not  come 
within  the  statute,  must  be  tried  and  punished  under  the  common 
law  of  war.  The  character  of  the  courts  which  exercise  these  juris- 
dictions depends  upon  the  local  law  of  each  particular  county." 

In  the  armies  of  the  United  States,  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  "rules  and 
regulations  of  war,"  or  the  jurisdiction  conferred  by  statute  or  court- 
martial,  are  tried  by  inilitary  commissions. 

These  jurisdictions  are  applicable,  not  only  to  war  with  foreign 
nations,  but  to  a  rebellion,  when  a  part  of  a  country  wages  war 
against  its  legitiuiate  government,  seeking  to  throw  off  all  allegiance 
to  it,  to  set  up  a  government  of  its  own. 

Our  first  remark  upon  the  motion  for  a  certiorari  is,  that  there  is 
no  analogy  between  the  power  given  by  the  Constitution  and  law  of 
the  United  States  to  the  Supreme  Court,  and  the  other  inferior  courts 
of  the  United  States,  and  to  the  judges  of  them,  to  issue  such  pro- 
cesses, and  the  prerogative  power  by  which  it  is  done  in  England. 
The  purposes  for  wiiich  the  writ  is  issued  are  alike,  but  there  is  no 
similitude  in  the  origin  of  the  power  to  do  it.  In  England,  the  Court 
of  King's  Bench  has  a  superintendence  over  all  courts  of  an  inferior 
criminal  jurisdiction,  and  may,  by  the  plenitude  of  its  power,  award 
a  certiorari  to  have  any  indictment  removed  and  brought  before  it ; 
and  where  such  certiorari  is  allowable,  it  is  awarded  at  the  instance 
of  the  king,  because  every  indictment  is  at  the  suit  of  the  king,  and 
he  has  a  prerogative  of  suing  in  whatever  court  he  pleases.  The 
courts  of  the  United  States  derive  authority  to  issue  such  a  writ 
from  the  Constitution  and  the  legislation  of  Congress.  To  place  the 
two  sources  of  the  right  to  issue  the  writ  in  obvious  contrast,  and  in 
application  to  the  motion  we  are  considering  for  its  exercise  by  this 
court,  we  will  cite  so  much  of  the  third  article  of  the  Constitution  as 
we  think  will  best  illustrate  the  subject. 


I 


SECT.  II.  b.]  EX   PARTE   VALLANDIGHAM.  765 

[Portions  of  sections  1  and  2  are  quoted.] 

Then  Congress  passed  the  act  to  establish  the  judicial  courts  of 
the  United  States,  1  Stat,  at  Large,  73,  chap.  20,  and  in  the  13th  sec- 
tion of  it  declared  that  the  Supreme  Court  shall  have  exclusively  all 
such  jurisdiction  of  suits  or  proceedings  against  ambassadors  or 
other  public  ministers  or  their  domestics  or  their  domestic  servants 
as  a  court  of  law  can  have  or  exercise  consistently  tcith  tJce  laws 
of  nations,  and  original,  but  not  exclusive  jurisdiction  of  suits 
brought  by  ambassadors,  or  other  public  ministers,  or  in  which  a 
consul  or  vice-consul  shall  be  a  party.  In  the  same  section,  the 
Supreme  Court  is  declared  to  have  appellate  jurisdiction  in  cases 
hereinafter  expressly  provided.  In  this  section,  it  will  be  perceived 
that  the  jurisdiction  given,  besides  that  which  is  mentioned  in  the 
preceding  part  of  the  section,  is  an  exclusive  jurisdiction  of  suits  or 
proceedings  against  ambassadors  or  other  public  ministers  or  their 
domestics  or  domestic  servants,  as  a  court  of  law  can  have  or  exer- 
cise consistently  with  the  laws  of  nations,  and  original  but  not  ex- 
clusive jurisdiction  of  all  suits  brought  by  ambassadors  or  other  public 
ministers,  or  in  which  a  consul  or  vice-consul  shall  be  a  party,  thus 
guarding  them  from  all  other  judicial  interference,  and  giving  to 
them  the  right  to  prosecute  for  their  own  benefit  in  the  courts  of  the 
United  States.  Thus  substantially  reaffirming  the  constitutional 
declaration,  that  the  Supreme  Court  had  original  jurisdiction  in  all 
cases  affecting  ambassadors  and  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party,  and  that  it  shall  have 
appellate  jurisdiction  in  all  other  cases  before  mentioned,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make. 

The  appellate  powers  of  the  Supreme  Court,  as  granted  by  the 
Constitution,  are  limited  and  regulated  by  the  acts  of  Congress,  and 
must  be  exercised  subject  to  the  exceptions  and  regulations  made  by 
Congress.  Durousseau  v.  The  United  States,  6  Cranch,  314 ;  Barry 
V.  Mercein,  5  How.  119 ;  United  States  v.  Curry,  6  id.  113  ;  For- 
syth V.  United  States,  9  id.  571.  In  other  words,  the  petition  before 
us  we  think  not  to  be  within  the  letter  or  spirit  of  the  grants  of 
appellate  jurisdiction  to  the  Supreme  Court.  It  is  not  in  law  or 
equity  within  the  meaning  of  those  terms  as  used  in  the  3i  article 
of  the  Constitution,  Nor  is  a  military  commission  a  court  within 
the  meaning  of  the  14th  section  of  the  Judiciary  Act  of  1789.  That 
act  is  denominated  to  be  one  to  establish  the  judicial  courts  of  the 
United  States,  and  the  14th  section  declares  that  all  the  "  before- 
mentioned  courts  "  of  the  United  States  shall  have  power  to  issue 
writs  of  scire  facias,  habeas  corjms,  and  all  other  writs  not  specially 
provided  for  by  statute,  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions,  agreeably  to  the  principles  and  usages 
of  law.  The  words  in  the  section,  "  the  before-mentioned "  courts, 
can  only  have  reference  to  such  courts  as  were  established  in  the 


766  THE    JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

preceding  part  of  the  act,  and  excludes  the  idea  that  a  court  of  mili- 
tary commission  can  be  one  of  them. 

Whatever  may  be  the  force  of  Vallandigham's  protest,  that  he  was 
not  triable  by  a  court  of  military  commission,  it  is  certain  th;;t  his 
petition  cannot  be  brought  within  the  14th  section  of  the  act ;  and 
further,  that  the  court   cannot,    without   disregarding   its    frequent 
decisions   and  interpretation  of   the  Constitution  in  respect  to   its 
judicial  power,  originate  a  writ  of  certiorari  to  review  or  pronounce 
any  opinion  upon  the  proceedings  of  a  military  commission.     It  was 
natural,  before  the  sections  of  the  3d  article  of  the  Constitution  had 
been  fully  considered  in  connection  with  the  legislation  of  Congress, 
giving  to  the  courts  of  the  United  States  power  to  issue  writs  of  scire 
facias,  habeas  corpus,  and  all  other  writs  not  specially  provided  for 
by  statute,  which  might  be  necessary  for  the  exercise  of  their  respec- 
tive jurisdiction,  that  by  some  members  of  the  profession  it  should 
have   been  thought,  and  some  of  the   early  judges  of  the   Supreme 
Court  also,  that  the  14th  section  of  the  act  of  24th  September,  1789, 
gave  to  this  court  a  right  to  originate  processes  of  habeas  corjjus  ad 
subjiciendum^  writs  of  certiorari  to  review  the  proceedings  of  the 
inferior  courts  as  a  matter  of  original  jurisdiction,  without  being  in 
any  way  restricted  by  the  constitutional  limitation,  that  in  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  those 
in  which  a  State  shall  be  a  party,  the  Supreme  Court  shall  have  origi- 
nal jurisdiction.    This  limitation  has  always  been  considered  restric- 
tive of  any  other  original  jurisdiction.     The  rule  of  construction  of  the 
Constitution   being,  that  affirmative  luords  in  the  Constitution,  declar- 
ing in  what  cases  the  Supreme  Court   shall  have  original  jurisdiction^ 
must  be  construed  negatively  as  to  all  other  cases.     Marbury  v.  ]Madi- 
son,  1    Cranch,  137  ;  State  of  New    Jersey  u.  State  of  New  York, 
5  Pet.  284;  Kendall  v.  The   United   States,   12  id.  637;  Cohens  v. 
Virginia,  6  Wheat.  264.     The  nature  and  extent  of  the  court's  appel- 
late" jurisdiction  and  its  want  of  it  to  issue  writs  of  habeas  corpus  ad 
subjiciendum  have  been   fully   discussed   by  this  court  at  different 
times.     We  do  not  think   it   necessary,  however,  to  examine  or  cite 
many  of  them  at  this  time. 

For  the  reasons  given,  our  judgment  is,  that  the  writ  of  certiorari 
prayed  for  to  revise  and  review  the  proceedings  of  the  military  com- 
mission, by  which  Clement  L.  Vallandigham  was  tried,  sentenced,  and 
imprisoned,  must  be  denied,  and  so  do  we  order  accordingly. 

Nelson,  J.,  Gbier,  J.,  and  Field,  J.,  concurred  in  the  result  of 
this  opinion.* 

1  In  the  caae  of  Marblrt  v.  Madison,  1  Cranch,  137  (1803),  the  court  had  under 
consideration  an  application  for  a  writ  of  mnndamns  to  be  directed  to  defendant  as  Sec- 
retary of  State  of  the  United  States  requiring  him  to  issue  to  plaintiff  a  commission  as 
justice  of  the  peace,  such  commission  having  been  duly  signed  by  tlie  President  of  the 
United  States,  and  placed  iu  the  hands  of  the  Secretary  of  State  for  delivery  but  not 


SECT.  II.  b.]  MARBURY   V.   MADISON.  767 

delivered.  Chief  Justice  Marshall,  delivering  the  opiniou  of  the  court,  aftrr  hold- 
in"  that  tlie  plaintiff  was  entitled  to  the  commission  and  that  mandamus  was  the 
proper  remedy  to  compel  its  delivery,  considered  the  question  whether  the  writ  could, 
issue  on  an  application  to  the  Supreme  Court,  and  used  the  following  language  :  — 

"  The  act  to  establish  the  judicial  courts  of  tlie  United  States  authorizes  the  Supreme 
Court  '  to  issue  writs  of  mandamus,  in  cases  warranted  by  the  principles  and  usages  of 
law,  to  any  courts  appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States.' 

"  The  Secretary  of  State,  being  a  person  holding  an  office  under  the  authority  of  the 
United  States,  is  precisely  within  the  letter  of  the  description ;  and  if  this  court  is  not 
authorized  to  issue  a  writ  of  mandaritus  to  such  an  officer,  it  must  be  because  tlie  law 
is  unconstitutional,  and  therefore  absolutely  incapable  of  conferring  the  authority,  and 
assigning  the  duties  which  its  words  purport  to  confer  and  assign. 

"  The  Constitution  vests  the  whole  judicial  power  of  the  United  States  in  one 
Supreme  Court,  and  such  inferior  courts  as  Congress  shall,  from  time  to  time,  ordain 
and  establish.  This  power  is  expressly  extended  to  all  cases  arising  under  the  laws 
of  the  United  States ;  and  consequently  in  some  form  may  be  exercised  over  the 
present  case,  because  the  right  claimed  is  given  by  a  law  of  the  United  States. 

"  In  the  distribution  of  this  power  it  is  declared  that  'the  Supreme  Court  shall  have 
original  jurisdiction  in  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party.  In  all  other  cases,  the  Supreme 
Court  shall  have  appellate  jurisdiction.' 

"  It  has  been  insisted,  at  tlie  bar,  that  as  the  original  grant  of  jurisdiction,  to  the 
supreme  and  inferior  courts,  is  general,  and  tlie  clause,  assigning  original  jurisdiction 
to  the  Supreme  Court,  contains  no  negative  or  restrictive  words,  the  power  remains  to 
the  legislature  to  assign  original  jurisdiction  to  that  court  in  other  cases  than  those 
sj)ecified  in  the  article  which  iias  been  recited ;  provided  those  cases  belong  to  the 
judicial  power  of  the  United  States. 

"  If  it  had  been  intended  to  leave  it  in  the  discretion  of  the  legislature  to  apportion 
the  judicial  power  between  the  supreme  and  inferior  courts  according  to  the  will  of 
that  body,  it  would  certainly  have  been  useless  to  have  proceeded  further  than  to  have 
defined  the  judicial  power,  and  the  tribunals  in  which  it  should  be  vested.  The  sub- 
sequent part  of  the  section  is  mere  surplusage,  is  entirely  without  meaning,  if  such  is 
to  be  the  construction.  If  Congress  remains  at  liberty  to  give  this  court  appellate  juris- 
diction, where  the  Constitution  has  declared  their  jurisdiction  shall  be  original ;  and 
original  jurisdiction  where  the  Constitution  has  declared  it  shall  be  appellate  ;  the  dis- 
tribution of  jurisdiction,  made  in  the  Constitution,  is  form  without  substance 

"  Affirmative  words  are  often,  in  their  operation,  negative  of  other  objects  than 
those  affirmed;  and  in  this  case,  a  negative  or  exclusive  sense  must  be  given  to  them, 
or  they  have  no  operation  at  all. 

"  It  cannot  be  presumed  that  any  clause  in  the  Constitution  is  intended  to  be  with- 
out effect;  and,  therefore,  such  a  construction  is  inadmissible,  unless  the  words 
require  it. 

"  If  tlie  solicitude  of  the  convention,  respecting  our  peace  with  foreign  powers,  in- 
duced a  provision  that  the  Supreme  Court  should  take  original  jurisdiction  in  ca.ses 
wliich  miglit  be  supposed  to  affect  them,  yet  the  clause  would  have  proceeded  no  fur- 
tlier  tlian  to  provide  for  such  cases,  if  no  further  restriction  on  the  powers  of  Congress 
had  been  intended.  That  they  should  have  appellate  jurisdiction  in  all  other  cases, 
with  such  exce])tions  as  Congress  miglit  make,  is  no  restriction  ;  unless  the  words  bo 
deemed  exclusive  of  original  jurisdiction. 

"  When  an  instrument  organizing  fundamentalh'  a  judicial  .system,  divides  it  into 
one  supreme,  and  so  many  inferior  courts  as  the  legislature  may  ordain  and  establish  ; 
then  enumerates  its  powers,  and  proceeds  so  far  to  distribute  them,  as  to  define  tlie 
jurisdiction  of  the  Supreme  Court  by  declaring  the  cases  in  which  it  shall  take  original 
jurisdiction,  and  that  in  others  it  shall  take  appellate  jurisdiction  ;  the  plain  import 
of  the  words  seems  to  be,  that  in  one  class  of  cases  its  jurisdiction  is  original  and  not 
appellate;  in  the  other  it  is  appellate,  and  not  original.     If  any  other  construction 


768  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI 

would  render  the  clause  inoperative,  that  is  an  additional  reason  for  rejecting  such 
other  construction,  and  for  adhering  to  their  obvious  meaning. 

"To  enable  this  court,  then,  to  issue  a  inundanius,  it  must  be  shown  to  be  an  exer- 
cise of  appellate  jurisdiction,  or  to  be  necessary  to  enable  them  to  exercise  appellate 
jurisdiction. 

"  It  has  been  stated  at  tlie  bar  that  the  appellate  juri.^diction  may  be  exercised  in  a 
varietv  of  forms,  and  that  if  it  be  the  will  of  the  legislature  that  a  mandamw^  should 
be  used  for  that  purpose,  that  will  must  be  obeyed.  This  is  true,  yet  the  jurisdiction 
must  be  appellate,  not  original. 

"  It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it  revises  and  corrects  the 
proceedings  in  a  cause  already  instituted,  and  does  not  cre:;te  that  cause.  Although, 
therefore,  a  mandamus  may  be  directed  to  courts,  yet  to  issue  such  a  writ  to  an  officer 
fur  the  dcliverv  of  a  paper,  is  in  effect  the  same  as  to  sustain  an  original  action  for 
that  paper,  and,  therefore,  seems  not  to  belong  to  appellate,  but  to  original  jurisdic- 
tion. Neither  is  it  necessary,  in  such  a  case  as  this,  to  enable  the  court  to  exercise  its 
appellate  jurisdiction." 

The  portion  of  the  opinion  in  which  it  is  held  that  the  court  had  the  power  to  de- 
clare the  act  of  Congress  unconstitutional  and  of  no  effect  is  given  infra,  p.  815. 

In  the  case  of  Ex  parte  Watkins,  7  Pet.  568  (1833),  it  was  considered  whether  the 
Supreme  Court  had  jurisdiction  to  issue  a  writ  of  habeas  corpus  on  an  apjilicatiou  in 
behalf  of  a  person  imprisoned  under  a  capias  ad  satisfaciendum  issued  from  the  Circuit 
Court  of  the  Di-strict  of  Columbia,  and  Mr.  Justice  Stoky,  delivering  the  opinion  of 
the  court,  used  this  language  :  — 

'•  Upon  this  state  of  the  facts  several  questions  have  arisen  and  been  argued  at  the 
bar ;  and  one,  which  is  preliminary  in  its  nature,  at  the  suggestion  of  the  court.  This 
is,  wliether,  under  the  circumstances  of  the  case,  the  court  possess  jurisdiction  to 
award  the  writ.  And  upon  full  consideration  we  are  of  opinion  that  the  court  do 
possess  jurisdiction.  The  question  turns  upon  tliis,  whether  it  is  an  exercise  of  origi- 
nal or  appellate  jurisdiction.  If  it  be  the  former,  then,  as  the  present  is  not  one  of 
the  cases  in  wdiich  the  Constitution  allows  this  court  to  exercise  original  jurisdiction, 
tlie  writ  must  be  denied.  Marbury  v.  Madison,  1  Cranch,  137.  If  the  latter,  then,  it 
may  be  awarded,  since  the  Judiciary  Act  of  1789,  c.  20,  §  14,  1  Stats,  at  Lar-e,  81, 
has'  clearly  authorized  the  court  to  issue  it.  This  was  decided  in  the  case  Ex  parte 
Hamilton,*  3  Dall.  17  ;  Er  parte  BoUman  and  Swartwout,  4  Cranch,  75  ;  and  Ex  parte 
Kearney.  7  Wheat.  38.  The  doubt  was  whether,  in  the  actual  case  before  the  court, 
the  jurisdiction  sought  to  be  exercised  was  not  original,  since  it  brought  into  question, 
not  the  validity  of  the  original  process  of  capias  ad  satisfaciendum,  but  the  present 
right  of  detainer  of  the  prisoner  under  it.  Upon  further  reflection,  however,  the 
doubt  has  been  removed. 

"  The  award  of  the  capias  ad  satisfaciendum,  must  be  considered  as  the  act  of  the 
Circuit  Court,  it  being  judicial  process,  issuing  under  the  authority  of  the  court.  The 
party  is  in  custody  uiider  that  process.  He  is  then  in  custody,  in  contemplation  of  law, 
under  the  award  of  process  by  the  court.  Whether  he  is  rightfully  so.  is  the  very 
question  now  to  be  decided.  If  the  court  should,  upon  the  hearing,  decide  that  the 
capias  ad  satisfaciendum  justifies  the  present  detainer,  and  should  remand  the  pris- 
oner, it  would  clearlv  be  an  exercise  of  appellate  jurisdiction  ;  for  it  would  be  a  re- 
vision and  confirmation  of  the  act  of  the  court  below.  But  the  jurisdiction  of  the 
court  can  never  depend  upon  its  decision  upon  the  merits  of  a  case  brought  before  it, 
but  upon  its  ri-rht  to  hear  and  decide  it  at  all.  In  Marbury  (•.  Madison,  1  Cranch, 
137,  it  was  said,  that  it  is  the  essential  criterion  of  appellate  jurisdiction  that  it  revises 
and  corrects  the  proceedings  in  a  cause  already  instituted ;  and  does  not  create  that 
cau.se. 

"Tried  by  this  criterion,  the  case  before  us  comes  in  an  appellate  form,  for  it  seeks 
to  revise  the  acts  of  the  Circuit  Court.  In  Ex  parte  Bollman  and  Swartwout,  4  Cranch, 
75.  the  prisoners  were  in  custody  under  an  order  of  commitment  of  the  Circuit  Court ; 
and  it  was  held  that  an  award  of  a  writ  of  habeas  corpus  by  the  Supreme  Court  was 
an  exercise  of  appellate  jurisdiction.     On  that  occasion,  the  court  said,  so  far  as  the 


SECT.  II.  C]  GAINES   V.    FUENTES.  769 

c.  Bi/  Removal, 

GAINES  V.  FUENTES. 
92  United  States,  10.     1875. 
Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

In  the  view  we  take  of  the  application  of  the  plaintiff  in  error  to 
remove  the  cause  to  the  Federal  court,  no  other  question  than  the 
one  raised  upon  that  application  is  open  for  our  consideration.  If 
the  application  should  have  been  granted,  the  subsequent  proceed- 
ings were  without  validity ;  and  no  useful  purpose  would  be  sub- 
served by  an  examination  of  the  merits  of  the  defence,  upon  the 
supposition  that  the  State  court  rightfully  retained  its  original 
jurisdiction. 

The  action  is  in  form  to  annul  the  alleged  will  of  1813  of  Daniel 
Clark,  and  to  recall  the  decree  by  which  it  was  probated ;  but  as  the 
petitioners  are  not  heirs  of  Clark,  nor  legatees,  nor  next  of  kin,  and 
do  not  ask  to  be  substituted  in  place  of  the  plaintiff  in  error,  the 
action  cannot  be  treated  as  properly  instituted  for  the  revocation  of 
the  probate,  but  must  be  treated  as  brought  against  the  devisee  by 
strangers  to  the  estate  to  annul  the  will  as  a  muniment  of  title,  and 
to  restrain  the  enforcement  of  the  decree  by  which  its  validity  was 
established,  so  far  as  it  affects  their  property.  It  is,  in  fact,  an 
action  between  parties ;  and  the  question  for  determination  is, 
whether  the  Federal  court  can  take  jurisdiction  of  an  action  brought 
for  the  object  mentioned  between  citizens  of  different  States,  upon 
its  removal  from  a  State  court.  The  Constitution  declares  that  the 
judicial  power  of  the  United  States  shall  extend  to  "controversies 
between  citizens  of  different  States,"  as  well  as  to  cases  arising  under 
the  Constitution,  treaties,  and  laws  of  the  United  States ;  but  the 
conditions  upon  which  the  power  shall  be  exercised,  except  so  far  as 

case  of  Marbury  v.  Madison,  1  Cranch,  137,  had  distinguished  between  original  and 
appellate  jurisdiction,  that  which  the  court  is  asked  to  exercise  is  clearly  appellate. 
It  is  the  decision  of  an  inferior  court,  by  which  a  citizen  has  been  committed  to  jail. 
Ex  parte  Hamilton,  3  Dall.  17,  was  a  commitment  under  a  warrant  by  a  district 
judge  ;  and  the  Supreme  Court  awarded  a  writ  of  habeas  corpus  to  revise  the  decision, 
and  admitted  the  party  to  bail.  In  Ex  jiarte  Burford,  3  Cranch,  448,  the  prisoner  was 
in  custody  under  a  commitment  by  the  Circuit  Court  for  want  of  giving  a  recognizance 
for  his  good  behavior,  as  awarded  by  the  court.  The  Supreme  Court  relieved  him  on 
a  writ  of  habeas  corpus.  In  all  these  cases  the  issuing  of  the  writ  was  treated  as  an 
exercise  of  appellate  jurisdiction  ;  and  it  could  make  no  difference  in  the  right  of  the 
court  to  entertain  jurisdiction,  whether  the  proceedings  of  the  court  below  were  an- 
nulled or  confirmed.  Considering  then,  as  we  do,  that  we  are  but  revising  the  effect 
of  the  process  awarded  by  the  Circuit  Court,  under  which  tiic  prisoner  is  detained,  we 
cannot  say  that  it  is  the  exercise  of  an  original  jurisdiction." 

49 


770  THE    JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

the  original  or  appellate  character  of  the  jurisdiction  is  designated 
in  the  Constitution,  are  matters  of  legislative  direction.  Some  cases 
there  are,  it  is  true,  in  which,  from  their  nature,  the  judicial  power 
of  the  United  States,  when  invoked,  is  exclusive  of  all  State 
authority.  Such  are  cases  in  which  the  United  States  are  parties, 
—  cases  of  admii-alty  and  maritime  jurisdiction,  and  cases  for  the 
enforcement  of  rights  of  inventors  and  authors  under  the  laws  of 
Congress.  The  Moses  Taylor,  4  Wall.  429 ;  Railway  Co.  v.  Whitton, 
13  id.  288.  But,  in  cases  where  the  judicial  power  of  the  United 
States  can  be  applied  only  because  they  involve  controversies  be- 
tween citizens  of  different  States,  it  rests  entirely  with  Congress  to 
determine  at  what  time  the  power  may  be  invoked,  and  upon  what 
conditions,  —  whether  originally  in  the  Federal  court,  or  after  suit 
brought  in  the  State  court ;  and,  in  the  latter  case,  at  what  stage 
of  the  proceedings,  —  whether  before  issue  or  trial  by  removal  to 
a  Federal  court,  or  after  judgment  upon  appeal  or  writ  of  error. 
The  Judiciary  Act  of  1789,  in  the  distribution  of  jurisdiction  to 
the  Federal  courts,  proceeded  upon  this  theory.  It  declared  that  the 
circuit  courts  should  have  original  cognizance,  concurrent  with  the 
courts  of  the  several  States,  of  all  suits  of  a  civil  nature,  at  common 
law  or  in  equity,  involving  a  specified  sum  or  value,  where  the  suits 
were  between  citizens  of  the  State  in  which  they  were  brought  and 
citizens  of  other  States;  and  it  provided  that  suits  of  that  char- 
acter by  citizens  of  the  State  in  which  they  were  brought  might  be 
transferred,  upon  application  of  the  defendants,  made  at  the  time  of 
entering  their  appearance,  if  accompanied  with  sufficient  security 
for  subsequent  proceedings  in  the  Federal  court.  The  validity  of 
this  legislation  is  not  open  to  serious  question,  and  the  provisions 
adopted  have  been  recognized  and  followed  with  scarcely  an  excep- 
tion by  the  Federal  and  State  courts  since  the  establishment  of  the 
government.  But  the  limitation  of  the  original  jurisdiction  of  the 
Federal  court,  and  of  the  right  of  removal  from  a  State  court,  to  a 
class  of  cases  between  citizens  of  different  States  involving  a  desig- 
nated amount,  and  brought  by  or  against  resident  citizens  of  the 
State,  was  only  a  matter  of  legislative  discretion.  The  Constitution 
imposes  no  limitation  upon  the  class  of  cases  involving  controversies 
between  citizens  of  different  States,  to  which  the  judicial  power  of 
the  United  States  may  be  extended ;  and  Congress  may,  therefore, 
lawfully  provide  for  bringing,  at  the  option  of  either  of  the  parties, 
all  such  controversies  within  the  jurisdiction  of  the  Federal  judiciary. 
As  we  have  had  occasion  to  observe  in  previous  cases,  the  provision 
of  the  Constitution,  extending  the  judicial  power  of  the  United  States 
to  controversies  between  citizens  of  different  States,  had  its  existence 
in  the  impression  that  State  attachments  and  State  ])rejudices  might 
affect  injuriously  the  regular  administration  of  justice  in  the  State 
courts.  It  was  originally  supposed  that  adequate  protection  against 
such  influences  was  secured  by  allowing  to  the  plaintiff  an  election 


SECT.  II.  C]  GAINES   V.   FUENTES.  771 

of  courts  before  suit ;  and,  when  the  suit  was  brought  in  a  State 
court,  a  like  election  to  the  defendant  afterwards.     Railway  Co.  v. 
Whitton,  13  Wall.  289.     But  the  experience  of  parties  immediately 
after  the  late  war,  which  powerfully  excited  the  people  of  different 
States,  and  in  many  instances  engendered  bitter  enmities,  satisfied 
Congress  that  further  legislation  was  required  fully  to  protect  liti- 
gants against  influences  of  that  character.     It  therefore  provided,  by 
the  act  of  March  2,  1867  (14  Stat.   558),  greater  facilities  for  the 
removal  of  cases  involving  controversies  between  citizens  of  different 
States  from  a  State  court  to  a  Federal  court,  when  it  appeared  that 
such  influences  existed.     That  act  declared,  that  where  a  suit  was 
then  pending,  or  should  afterwards  be  brought  in  any  State  court, 
in  v/hich  there  was  a  controversy  between  a  citizen  of  the  State   in 
which  the  suit  was  brought  and  a  citizen  of  another  State,  and  the 
matter  in  dispute  exceeded  the  sum  of  $500,  exclusive  of  costs,  such 
citizen  of  another  State,  whether  plaintiff  or  defendant,  upon  making 
and  filing  in  the  State  court  an  afiidavit  that  he  had  reason  to  believe, 
and  did  believe,  that  from  prejudice  or  local  influence  he  would  not 
be  able  to  obtain  justice  in  the  State  court,  might,  at  any  time  before 
final  hearing  or  trial  of  the  suit,  obtain  a  removal  of  the  case  into 
the  Circuit  Court  of  the  United  States,  upon  petition  for  that  pur- 
pose, and  the  production  of   sufficient  security  for  subsequent  pro- 
ceedings in  the  Federal  court.     This  act  covered  every  possible  case 
involving  controversies  between  citizens  of  the  State  where  the  suit 
was  brought  and  citizens  of  other  States,  if  the  matter  in  dispute, 
exclusive   of  costs,    exceeded   the   sum   of    $500.     It  mattered   not 
whether  the  suit  was  brought  in  a  State  court  of  limited  or  general 
jurisdiction.    The  only  test  was,  did  it  involve  a  controversy  between 
citizens  of  the  State  and  citizens  of  other  States  ?  and  did  the  matter 
in  dispute  exceed  a  specified  amount  ?     And  a  controversy  was  in- 
volved in  the  sense  of  the  statute  whenever  any  property  or  claim 
of  the  parties,  capable  of  pecuniary  estimation,  was  the  subject  of 
the   litigation,   and   was   presented    by   the   pleadings   for    judicial 
determination. 

With  these  provisions  in  force,  we  are  clearly  of  opinion  that  the 
State  court  of  Louisiana  erred  in  refusing  to  transfer  the  case  to 
the  Circuit  Court  of  the  United  States  upon  the  application  of  the 
plaintiff  in  error.  If  the  Federal  court  had,  by  no  previous  act, 
jurisdiction  to  pass  upon  and  determine  the  controversy  existing 
between  the  parties  in  the  parish  court  of  Orleans,  it  was  invested 
with  the  necessary  jurisdiction  by  this  act  itself  so  soon  as  the  case 
was  transferred.  In  authorizing  and  requiring  the  transfer  of  cases 
involving  particular  controversies  from  a  State  court  to  a  Federal 
court,  the  statute  thereby  clothed  the  latter  court  with  all  the 
authority  essential  for  the  complete  adjudication  of  the  contro- 
versies, even  though  it  should  be  admitted  that  that  court  could  not 
have  taken  original  cognizance  of  the  cases.     The  language  used  in 


772  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

Smith  V.  Rines,  cited  from  the  2d  of  Sumner's  Reports,  in  support 
of  the  position  that  such  cases  are  only  liable  to  removal  from  the 
State  to  the  Circuit  Court  as  might  have  been  brought  before  the 
Circuit  Court  by  original  process,  applied  only  to  the  law  as  it  then 
stood.  No  case  could  then  be  transferred  from  a  State  court  to  a 
Federal  court,  on  account  of  the  citizenship  of  the  parties,  which 
could  not  originally  have  been  brought  in  the  Circuit  Court. 

But  the  admission  supposed  is  not  required  in  this  case.  The  suit 
in  the  parish  court  is  not  a  proceeding  to  establish  a  will,  but  to 
annul  it  as  a  muniment  of  title,  and  to  limit  the  operation  of  the 
decree  admitting  it  to  probate.  It  is,  in  all  essential  particulars,  a 
suit  for  equitable  relief,  —  to  cancel  an  instrument  alleged  to  be  void, 
and  to  restrain  the  enforcement  of  a  decree  alleged  to  have  been 
obtained  upon  false  and  insufficient  testimony.  There  are  no  separate 
equity  courts  in  Louisiana,  and  suits  for  special  relief  of  the  nature 
here  sought  are  not  there  designated  suits  in  equity.  But  they  are 
none  the  less  essentially  such  suits;  and  if  by  the  law  obtaining  in 
the  State,  customary  or  statutory,  they  can  be  maintained  in  a  State 
court,  whatever  designation  that  court  may  bear,  we  think  they  may 
be  maintained  by  original  process  in  a  Federal  court,  where  the  par- 
ties are,  on  the  one  side,  citizens  of  Louisiana,  and,  on  the  other, 
citizens  of  other  States. 

There  are,  it  is  true,  in  several  decisions  of  this  court,  expressions 
of  opinion  that  the  Federal  courts  have  no  probate  jurisdiction,  re- 
ferring particularly  to  the  establishment  of  wills ;  and  such  is  un- 
doubtedly the  case  under  the  existing  legislation  of  Congress.  The 
reason  lies  in  the  nature  of  the  proceeding  to  probate  a  will  as  one 
i?i  rem,  which  does  not  necessarily  involve  any  controversy  between 
parties  :  indeed,  in  the  majority  of  instances,  no  such  controversy 
exists.  In  its  initiation  all  persons  are  cited  to  appear,  whether  of 
the  State  where  the  will  is  offered,  or  of  other  States.  From  its 
nature,  and  from  the  want  of  parties,  or  the  fact  that  all  the  world 
are  parties,  the  proceeding  is  not  within  the  designation  of  cases  at 
law  or  in  equity  between  parties  of  different  States,  of  which  the 
Federal  courts  have  concurrent  jurisdiction  with  the  State  courts 
under  the  Judiciary  Act;  but  whenever  a  controversy  in  a  suit  be- 
tween such  parties  arises  respecting  the  validity  or  construction  of  a 
will,  or  the  enforcement  of  a  decree  admitting  it  to  probate,  there 
is  no  more  reason  why  the  Federal  courts  should  not  take  jurisdic- 
tion of  the  case  than  there  is  that  they  should  not  take  jurisdiction 
of  any  other  controversy  between  the  parties. 

But,  as  already  observed,  it  is  sufficient  for  the  disposition  of  this 
case  that  the  statute  of  1867,  in  authorizing  a  transfer  of  the  cause 
to  the  Federal  court,  does,  in  our  judgment,  by  that  fact,  invest  that 
court  with  all  needed  jurisdiction  to  adjudicate  finally  and  settle  the 
controversy  involved. 


SECT.    IT.  C]  SECURITY   ETC.    CO.    V.    PREWITT.  773 

It  follows  from  the  views  thus  expressed  that  the  judgment  of  the 
Supreme  Court  of  Louisiana  must  be  reversed,  with  directions  to 
reverse  the  judgment  of  the  parish  court  of  Orleans,  and  to  direct 
a  transfer  of  the  cause  from  that  court  to  the  Circuit  Court  of  the 
United  States,  pursuant  to  the  application  of  the  appellant ;  and  it 
is  so  ordered.^ 


TENNESSEE   v.  DAVIS. 
100  United  States,  257.     1879. 
[See  supra,  p.  51.] 


SECURITY  MUTUAL   LIFE   INSURANCE   COMPANY 
V.   PREWITT. 

202  U.  S.  246  ;  26  Sup.  Ct.  Rep.  619.     1906. 

[This  is  an  appeal  from  a  decision  of  the  Court  of  Appeals  of  Ken- 
tucky, sustaining  the  validity  of  a  statute  providing  that  if  any  foreign 
insurance  company  licensed  to  transact  business  in  the  State  shall 
remove  to  the  Federal  court  any  suit  instituted  against  it  in  the  State, 
the  insurance  commissioner  shall  forthwith  revoke  all  authority  to 
such  company  and  its  agents  to  do  business  in  the  State.] 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court. 

A  State  has  the  right  to  prohibit  a  foreign  corporation  from  doing 
business  within  its  borders,  unless  such  prohibition  is  so  conditioned 

1  Mr.  Justice  Bradley  delivered  a  dissenting  opinion,  in  which  Mr.  Jostice 
SwAYNE  concurred. 

In  Upshur  County  v.  Rich,  135  U.  S.  467  (1890),  the  question  was  whether  an 
appeal  from  an  assessment  of  taxes  to  a  county  court  which  was,  by  the  State  law, 
charged  with  administrative  and  not  judicial  functions  in  such  matters,  was  a  suit 
which'could  he  removed  to  the  Federal  courts.  Mr.  Justice  Bradley,  delivering 
the  opinion  of  the  court,  after  citing  the  above  case  and  others,  used  this  language  :  — 

"The  principle  to  be  deduced  from  these  cases  is,  that  a  proceeding,  not  in  a  court 
of  justice,  but  carried  on  by  executive  officers  in  the  exercise  of  their  proper  func- 
tions, as  in  the  valuation  of  property  for  the  just  distribution  of  taxes  or  assessments, 
is  purely  administrative  in  its  character,  and  cannot,  in  any  just  sense,  be  called  a  '  suit ' ; 
and  tiiat  an  appeal  in  such  a  case,  to  a  board  of  assessors  or  commissioners  having  no 
judicial  powers,  and  only  authorized  to  determine  questions  of  quantity,  proportion, 
and  value,  is  not  a  suit ;  but  that  such  an  appeal  may  become  a  suit,  if  made  to  a 
court  or  tribunal  having  power  to  determine  questions  of  law  and  fact,  either  with  or 
without  a  jury,  and  there  are  parties  litigant  to  contest  the  case  on  the  one  side  and 
on  the  other." 


774  THE   JUDICIAL   DEPARTMENT.  [CHAP.    VI. 

as  to  violate  some  provision  of  the  Federal  Constitution.  Among  the 
later  authorities  on  that  proposition  are  Hooper  v.  California,  155 
U.  S.  648  ;  Allgeyer  v.  Louisiana,  165  U.  S.  578,  583;  Orient  Ins.  Co. 
V.  Daggs,  172  U.  S.  557 ;  Waters-Pierce  Oil  Co,  v.  Texas,  177  U.  S. 
28 ;  New  York  L.  Ins.  Co.  v.  Cravens,  178  XJ.  S.  389,  395 ;  Hancock 
Mat.  L.  Ins.  Co.  v,  Warren,  181  U.  S.  73. 

Having  the  power  to  prevent  a  foreign  insurance  company  from 
doing  business  at  all  within  the  State,  we  think  the  State  can  enact  a 
statute  such  as  is  above  set  forth. 

The  question  is,  in  our  opinion,  settled  by  the  decisions  of  this 
court.  In  Insurance  Company  v.  Morse,  20  Wall.  445,  a  statute  of 
Wisconsin,  passed  in  1870,  in  relation  to  fire  insurance  companies, 
after  providing  for  certain  conditions  upon  which  the  foreign  com- 
pany might  do  business  within  tlie  State,  continued : 

"Any  such  company  desiring  to  transact  any  such  business  as 
aforesaid  by  any  agent  or  agents  in  tliis  State  shall  first  appoint  an 
attorney  in  this  State,  on  whom  process  of  law  can  be  served,  contain- 
ing an  agreement  that  such  company  will  not  remove  the  suit  for 
trial  into  the  United  States  Circuit  Court  or  Federal  courts,  and  file 
in  the  office  of  the  Secretary  of  State  a  written  instrument,  duly 
signed  and  sealed,  certifying  such  appointment,  which  shall  continue 
until  another  attorney  be  substituted." 

While  that  statute  was  in  force  the  Home  Insurance  Company  of 
the  State  of  New  York  established  an  agency  in  Wisconsin,  and,  in 
compliance  with  the  provisions  of  the  statute,  the  company  duly  filed 
in  the  office  of  the  Secretary  of  State  of  Wisconsin  the  appointment 
of  one  Durand  as  its  agent,  upon  whom  process  might  be  served. 
The  power  of  attorney  was  filed,  containing  the  following  agreement: 
"Said  company  .agrees  that  suits  commenced  in  the  State  courts  of 
Wisconsin  shall  not  be  removed  by  the  acts  of  said  company  into  the 
United  States  Circuit  or  Federal  courts." 

After  doing  business  in  the  State  for  some  time,  the  company  issued 
a  policy  to  Morse,  and  a  loss  having  occurred,  Morse  sued  the  com- 
pany in  one  of  the  state  courts  of  Wisconsin  to  recover  the  amount 
alleged,  to  be  due  on  the  policy.  The  company  entered  its  appear- 
ance in  the  suit  and  filed  its  petition  to  remove  the  case,  which  peti- 
tion was  in  proper  form,  and  was  accompanied  by  the  required  bond 
and  bail.  Being  presented  to  the  State  court  of  Wisconsin,  in  which 
the  suit  was  brought,  that  court  held  that  the  statute  justified  the 
denial  of  the  petition  to  remove  the  case  into  the  Federal  court,  and 
a  trial  having  been  had  in  the  state  court,  it  gave  judgment  for  the 
plaintiff  on  a  verdict  found  in  his  favor.  Upon  a  review  of  the  judg- 
ment by  the  Supreme  Court  of  Wisconsin,  it  was  affirmed.  There- 
upon the  insurance  company  sued  out  a  writ  of  error  from  this  court, 
and  the  sole  question  was  whether  the  statute  and  agreement  were 
sufficient  to  justify  the  state  court  in  refusing  to  permit  the  removal 
of  the  case  to  the  Federal  court,  and  proceeding  to  judgment  therein. 


SECT.  II.  C]       SECURITY  ETC.  CO.  V.   PREWITT.  775 

This  court  held  that  the  agreement  was  void,  inasmuch  as,  if  carried 
out,  it  would  oust  the  Federal  courts  of  a  jurisdiction  given  them  by 
the  Constitution  and  statutes  of  the  United  States.  It  was  said  that 
the  statute  of  Wisconsin  was  an  obstruction  to  the  right  of  removal 
provided  for  by  the  Constitution  of  the  United  States  and  the  laws 
made  in  pursuance  thereof,  and  that  the  agreement  of  the  insurance 
company  derived  no  support  from  the  unconstitutional  statute,  and  it 
was  void  as  it  would  have  been  had  no  such  statute  been  passed.  The 
Chief  Justice,  with  whom  concurred  Mr.  Justice  Davis,  dissented, 
holding  that,  as  the  State  had  the  right  to  exclude  foreign  insurance 
companies  from  the  transaction  of  business  within  its  jurisdiction,  it 
had  the  right  to  impose  conditions  upon  their  admission,  which  was 
a  necessary  consequence  from  the  right  to  exclude  altogether. 

It  will  be  seen  the  statute  provided  that  in  the  power  of  attorney, 
appointing  an  agent  for  the  company  within  the  State,  there  should 
be  an  agreement  that  the  company  would  not  remove  a  case  to  a 
Federal  court,  and  the  statute  was  held  to  be  void. 

Subsequently  the  case  of  Doyle  v.  Continental  Ins.  Co.,  94  U.  S. 
535,  involving  the  same  statute,  came  before  this  court.  In  that  case 
the  court  reaffirmed  the  decision  of  the  Morse  case,  supra,  as  to  the 
invalidity  of  the  agreement.  But,  in  distinguishing  the  two  cases,  it 
was  said,  in  the  course  of  the  opinion,  that,  as  the  State  had  the  right 
to  entirely  exclude  such  company  from  doing  business  in  the  State, 
the  means  by  which  it  caused  such  exclusion  or  the  motives  of  its 
action  were  not  the  subject  of  judicial  inquiry  ;  that  the  conclusion 
reached  in  the  Morse  case  that  the  statute  of  Wisconsin  was  illegal 
was  to  be  understood  as  spoken  of  the  provision  of  the  statute  then 
under  review,  viz.,  that  portion  thereof  requiring  astipulation  against 
transferring  cases  to  the  courts  of  the  United  States  ;  that  the  deci- 
sion was  upon  the  portion  of  the  statute  only,  and  that  other  portions 
thereof,  when  presented,  must  be  judged  on  their  merits.  The  court 
further  said  that  the  Morse  case  had  not  undertaken  to  decide  what 
the  powers  of  the  State  of  Wisconsin  were  in  revoking  a  license  pre- 
viously granted,  as  no  such  question  had  arisen  upon  the  facts  therein, 
and  was  neither  argued  by  counsel  nor  referred  to  in  the  opinion  ; 
but  that  in  the  case  then  before  the  court  (that  of  Doyle)  the  point 
as  to  the  power  of  the  State  to  revoke  a  license  was  distinctly  pre- 
sented.    It  is  stated  in  the  opinion,  as  follows : 

"  We  have  not  decided  that  the  State  of  Wisconsin  had  not  the 
power  to  impose  terms  and  conditions  as  preliminary  to  the  right  of 
an  insurance  company  to  appoint  agents,  keep  offices,  and  issue  poli- 
cies in  that  State.  On  the  contrary,  the  case  of  Paul  v.  Virginia, 
8  Wall.  168  [855],  where  it  is  held  such  conditions  may  be  imposed, 
was  cited  with  approval  in  Insurance  Company  v.  Morse." 

The  opinion  concludes  as  follows : 

"  It  is  said  that  we  thus  indirectly  sanction  what  we  condemn 
when  presented  directly  ;  to  wit,  that  we  enable  the  State  of  Wiscon- 


776  THE   JUDICIAL   DEPARTMENT.  [CHAP.   VI. 

sin  to  enforce  an  agreement  to  abstain  from  Federal  courts.  This 
is  an  *  inexact  statement.'  The  effect  of  our  decision  in  this  respect 
is  that  the  State  may  compel  the  foreign  company  to  abstain  from  the 
Federal  courts,  or  to  cease  to  do  business  in  the  State.  It  gives  the 
company  the  option.  This  is  justifiable,  because  the  complainant  has 
no  constitutional  right  to  do  business  in  that  State ;  that  State  has 
authority  at  any  time  to  declare  that  it  shall  not  transact  business 
there.  This  is  the  whole  point  of  the  case  and,  without  reference  to 
the  injustice,  the  prejudice,  or  the  wrong  that  is  alleged  to  exist, 
must  determine  the  question.  No  right  of  the  complainant  under  the 
laws  or  Constitution  of  the  United  States,  by  its  exclusion  from  the 
State,  is  infringed  ;  and  this  is  what  the  State  now  accomplishes. 
There  is  nothing,  therefore,  that  will  justify  the  interference  of  this 
court." 

In  these  two  cases  this  court  decided  that  any  agreement  made  by 
a  foreign  insurance  company  not  to  remove  a  cause  to  the  Federal 
court  was  void,  whether  made  pursuant  to  a  statute  of  the  State  pro- 
viding for  such  agreement,  or  in  the  absence  of  such  statute ;  but 
that  the  State,  having  power  to  exclude  altogether  a  foreign  insur- 
ance company  from  doing  business  within  the  State,  had  power  to 
enact  a  statute  which,  in  addition  to  providing  for  the  agreement 
mentioned,  also  provided  that  if  the  company  did  remove  a  case  from 
the  state  to  a  Federal  court,  its  right  to  do  business  within  the  State 
should  cease,  and  its  permit  should  be  revoked.  It  was  held  tliere 
was  a  distinction  between  the  two  propositions,  and  one  might  be 
held  void  and  the  other  not. 

[The  case  of  Barron  v.  Burnside,  121  U.  S.  186,  is  then  distin- 
guished from  the  cases  above  cited  on  the  ground  that  the  State 
statute  therein  held  invalid  exacted  an  agreement  in  addition  not  to 
remove  a  case  to  the  Federal  court.  The  judgment  of  the  Court  of 
Appeals  of  Kentucky  was  therefore  affirmed.^] 

1  Mr.  Justice  Day,  with  whom  concurred  Mr.  Justice  Harlan,  dissented,  stat- 
ing his  views  in  part  as  follows  : 

'•If  a  State  may  lawfully  withhold  the  right  of  transacting  business  within  its 
borders  or  exclude  foreign  corporations  from  the  State  upon  the  condition  that  they 
shall  surrender  a  constitutional  right  given  in  the  privilege  of  the  companies  to  appeal 
to  the  courts  of  the  United  States,  there  is  nothing  to  prevent  the  State  from  applying 
the  same  doctrine  to  any  other  constitutional  right,  which,  though  differing  in  char- 
acter, has  no  liigher  or  better  protection  in  the  Constitution  than  the  one  under  con- 
sideration. If  the  State  may  make  the  right  to  transact  business  dependent  upon  the 
surrender  of  one  constitutional  privilege,  it  may  do  so  upon  another,  and  finally  upon 
all.  In  pursuance  of  the  principle  announced  in  this  case,  that  the  right  of  the  State 
to  exclude,  includes  the  right,  when  exercised  for  any  reason  or  for  no  reason,  the 
State  may  say  to  the  foreign  corporation,  —  You  m.ay  do  business  within  this  State, 
provided  you  will  yield  all  right  to  be  protected  against  deprivation  of  property  with- 
out due  process  of  law ;  or  provided  you  surrender  your  right  to  have  compensation 
for  your  property  when  taken  for  private  use,  or  provided  you  surrender  all  right  to 
the  equal  protection  of  laws  ;  and  so  on  through  the  category  of  rights  secured  by  the 
Constitution  and  deemed  essential  to  the  protection  of  people  and  corporations  living 
under  our  institutions.     This  dangerous  doctrine,  asserted  in  the  majority  opinion  in 


SECT.  II.  d.]  WHITTEN   V.   TOMLINSON.  777 

d.    Bi/  Habeas  Corpus  Proceedings. 

WHITTEN  V.    TOMLINSON". 

160  United  States,  231.     1895. 

This  was  a  petition,  filed  March  26,  1895,  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Connecticut,  and  addressed  to 
the  Honorable  William  K.  Townsend,  the  district  judge,  as  a  judge 
of  the  Circuit  Court,  for  a  writ  of  habeas  corpus  to  the  sheriff  of  the 
county  of  Kew  Haven  in  the  State  of  Connecticut. 

[The  petition  and  return  show  that  petitioner  was  detained  in  cus- 
tody by  the  sheriff  under  commitment  after  having  been  brought  from 
Massachusetts  to  Connecticut  in  consequence  of  extradition  proceed- 
ings on  the  application  of  the  governor  of  the  latter  State.] 

The  petitioner  moved  to  quash  the  return,  as  insufficient  to  justify 
his  detention. 

The  Circuit  Court,  upon  a  hearing,  denied  the  motion,  and  dis- 
charged the  writ  of  habeas  corjms,  without  prejudice  to  the  right  of 
tha  petitioner  to  renew  the  motion ;  and  filed  an  opinion  by  the  dis- 
trict judge  (67  Fed.  Eep.  230)  in  which  the  grounds  of  decisions  were 
stated. 

[Petitioner  appealed  from  the  decree  of  the  Circuit  Court.] 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

By  the  judicial  system  of  the  United  States,  established  by  Con- 
gress under  the  power  conferred  upon  it  by  the  Constitution,  the  juris- 
diction of  the  courts  of  the  several  States  has  not  been  controlled  or 
interfered  with,  except  so  far  as  necessary  to  secure  the  supremacy 
of  the  Constitution,  laws,  and  treaties  of  the  United  States. 

With  this  end,  three  different  methods  have  been  provided  by 
statute  for  bringing  before  the  courts  of  the  United  States  proceed- 
ings begun  in  the  courts  of  the  States. 

First.  From  the  earliest  organization  of  the  courts  of  the  United 
States,  final  judgments,  whether  in  civil  or  in  criminal  cases,  rendered 
by  the  highest  court  of  a  State  in  which  a  decision  in  the  case  could 
be  had,  against  a  right  specially  set  up  or  claimed  under  the  Con- 

the  Doyle  case,  destroyed  and  overthrown,  as  we  think,  in  Barron  v.  Burnside,  which 
latter  case  has  been  consistently  and  repeatedly  followed  in  tliis  court  and  in  other 
courts,  Federal  and  State,  from  that  day  to  this,  ought  not  now  to  be  rehaliilitated 
and  restored  to  its  power  to  work  destruction  of  rights  deemed  so  essential  to  the 
safety  of  citizens,  natural  and  artificial,  that  they  have  been  secured  by  the  provisions 
of  the  Federal  Constitution. 

"We  are  of  opinion  that  the  statute  in  question,  so  far  as  it  authorizes  the  cancella- 
tion of  a  license  given  by  a  State  to  a  corporation  to  do  business  within  its  limits, 
whenever  such  corporation,  in  the  exercise  of  a  constitutional  right,  has  a  suit  brought 
against  it  in  a  State  court  removed  to  the  Federal  court  for  trial,  is  unconstitutional 
and  void." 


778  THE  JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

stitution,  laws,  or  treaties  of  the  United  States,  may  be  re-examined 
and  reversed  or  affirmed  by  this  court  on  writ  of  error.  Acts  of 
September  24,  1789,  c.  20,  §  25,  1  Stat.  85 ;  February  5,  1867,  c.  28, 
§  2,  14  Stat.  386 ;  Rev.  Stat.  §  709 ;  Martin  v.  Hunter,  1  Wheat.  304 ; 
Cohens  V.  Virginia,  6  Wheat.  264.  Such  appellate  jurisdiction  is 
expressly  limited  to  cases  in  which  the  decision  of  the  State  court  is 
against  the  right  claimed  under  the  Constitution,  laws,  or  treaties  of 
tlie  United  States,  because,  when  the  decision  of  that  court  is  in 
favor  of  such  a  right,  no  revision  by  this  court  is  necessary  to  protect 
the  national  government  in  the  exercise  of  its  rightful  powers. 
Gordon  v.  Caldcleugh,  3  Cranch,  268  ;  Montgomery  v.  Hernandez, 
.12  Wheat.  129  ;  Commonwealth  Bank  of  Kentucky  v.  Griffith,  14 
Pet.  56,  58  ;  Missouri  v.  Andriano,  138  U.  S.  496,  500,  501. 

Second.  By  the  Judiciary  Act  of  1789,  the  only  other  way  of 
transferring  a  case  from  a  State  court  to  a  court  of  the  United  States 
was  under  section  12,  by  removal  into  the  Circuit  Court  of  the  United 
States,  before  trial,  of  civil  actions  against  aliens,  or  between  citi- 
zens of  different  States.  1  Stat.  79.  Such  right  of  removal  for  trial 
has  been  regulated  and  extended  to  cases  arising  under  the  Constitu- 
tion, laws,  or  treaties  of  the  United  States,  by  successive  acts  of 
Congress,  which  need  not  be  particularly  referred  to,  inasmuch  as 
the  present  case  is  not  one  of  such  a  removal. 

Third.  By  section  14  of  the  old  Judiciary  Act,  the  courts  of  the 
United  States  were  authorized,  in  general  terms,  to  issue  writs  of 
habeas  corpus  and  other  writs  necessary  for  the  exercise  of  their  re- 
spective jurisdictions;  "provided  that  writs  of  habeas  corpus  shall 
in  no  case  extend  to  prisoners  in  jail,  unless  when  they  are  in  custody 
under  or  by  color  of  the  authority  of  the  United  States,  or  are  com- 
mitted for  trial  before  some  court  of  the  same,  or  are  necessary  to  be 
brought  into  court  to  testify."  1  Stat.  81.  Under  that  act,  no  writ 
of  habeas  corpus,  except  ad  testificandum,  could  be  issued  in  the  case 
of  a  prisoner  in  jail  under  commitment  by  a  court  or  magistrate  of  a 
State.     Ex  parte  Dorr,  3  How.  103;  In  re  Burrus,  136  U.^S.  586,  593. 

By  subsequent  acts  of  Congress,  however,  the  power  of  the  courts 
of  the  United  States  to  issue  writs  of  habeas  corpus  of  prisoners  in 
jail  has  been  extended  to  the  case  of  an}-  person  in  custody  for  an 
act  done  or  omitted  in  pursuance  of  a  law  of  the  United  States,  or 
of  an  order  or  process  of  a  court  or  judge  thereof;  or  in  custody  in 
violation  of  the  Constitution,  or  of  a  law  or  treaty  of  the  United 
States  ;  or  who,  being  a  subject  or  citizen  of  and  domiciled  in  a  for- 
eign State,  is  in  custody  for  an  act  done  or  omitted  under  any  right 
or  exemption  claimed  under  a  foreign  State,  and  depending  upon 
the  law  of  nations.  Acts  of  March  2,  1833,  c.  57,  §  7,  4  Stat.  634; 
August  29,  1842,  c.  257,  5  Stat.  539 ;  February  5,  1867,  c.  28,  §  1, 
14  Stat.  385 ;  Rev.  Stat.  §  753. 

By  the  existing  statutes,  this  court  and  the  Circuit  and  District 
Courts,  and  any  justice  or  judge  thereof,  have  power  to  grant  writs 


I 


SECT.  II.  d.]  WIIITTEN    V.   TOMLINSON.  779 

of  habeas  corpus  for  the  purpose  of  inquiring  into  the  cause  of  re- 
straint of  liberty  of  any  prisoner  in  jail,  who  '•  is  in  custody  in 
violation  of  the  Constitution,  or  of  a  law  or  treaty  of  the  United 
States ;  "  and  "  the  court  or  justice  or  judge,  to  whom  the  application 
is  made,  shall  forthwith  award  a  writ  of  habeas  corpus,  unless  it  ap- 
pears from  the  petition  itself  that  the  party  is  not  entitled  thereto ;  " 
and  "  shall  proceed  in  a  summary  way  to  determine  the  facts  of  the 
case,  by  hearing  the  testimony  and  arguments,  and  thereupon  to 
dispose  of  the  party  as  law  and  justice  may  require."  Eev.  Stat. 
§§  751-755,  761. 

The  power  thus  granted  to  the  courts  and  judges  of  the  United 
States  clearly  extends  to  prisoners  held  in  custody,  under  the  author- 
ity of  a  State,  in  violation  of  the  Constitution,  laws,  or  treaties  of 
the  United  States.  But  in  the  exercise  of  this  powder  the  courts  of 
the  United  States  are  not  bound  to  discharge  by  writ  of  habeas  corpus 
every  such  prisoner. 

The  principles  which  should  govern  their  action  in  this  matter 
were  stated,  upon  great  consideration,  in  the  leading  case  of  Ex  parte 
Royall,  117  U.  S.  241,  and  were  repeated  in  one  of  the  most  recent 
cases  upon  the  subject,  as  follows :  — 

"  We  cannot  suppose  that  Congress  intended  to  compel  those  courts, 
by  such  means,  to  draw  to  themselves,  in  the  first  instance,  the  con- 
trol of  all  criminal  prosecutions  commenced  in  State  courts  exercising 
authority  within  the  same  territorial  limits,  where  the  accused  claims 
that  he  is  held  in  custody  in  violation  of  the  Constitution  of  the 
United  States.  The  injunction  to  hear  the  case  summarily,  and 
thereupon  'to  dispose  of  the  party  as  law  and  justice  require,'  does 
not  deprive  the  court  of  discretion  as  to  the  time  and  mode  in  which 
it  will  exert  the  powers  conferred  upon  it.  That  discretion  should 
be  exercised  in  the  light  of  the  relatioiis  existing,  under  our  system 
of  government,  between  the  judicial  tribunals  of  the  Union  and  of 
the  States,  and  in  recognition  of  the  fact  that  the  public  good  re- 
quires that  those  relations  be  not  disturbed  by  unnecessary  conflict 
between  courts  equally  bound  to  guard  and  protect  rights  secured  by 
the  Constitution."  "Where  a  person  is  in  custody,  under  process 
from  a  State  court  of  original  jurisdiction,  for  an  alleged  offence 
against  the  laws  of  such  State,  and  it  is  claimed  that  he  is  restrained 
of  his  liberty  in  violation  of  the  Constitution  of  the  United  States, 
the  Circuit  Court  has  a  discretion,  whether  it  will  discharge  him, 
upon  habeas  corpus,  in  advance  of  his  trial  in  the  court  in  which  he 
is  indicted;  that  discretion,  however,  to  be  subordinated  to  any 
special  circumstances  requiring  immediate  action.  When  the  State 
court  shall  have  finally  acted  upon  the  case,  the  Circuit  Court  has 
still  a  discretion  whether,  under  all  the  circumstances  then  existing, 
the  accused,  if  convicted,, shall  be  put  to  his  writ  of  error  from  the 
highest  court  of  the  State,  or  whether  it  will  proceed,  by  writ  of 
habeas  corpnis,  summarily  to  determine  whether  the  petitioner  is  re- 


780  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

strained  of  his  liberty  in  violation  of  the  Constitution  of  the  United 
States."  Ex  parte  Roy  all,  117  U.  S.  241,  251-253 ;  New  York  v. 
Eno,  155  U.  S.  89,  93-95. 

In  Ex  parte  Royall  and  in  New  York  v.  Eno,  it  was  recognized  that 
in  cases  of  urgency,  such  as  those  of  prisoners  in  custody,  by  author- 
ity of  a  State,  for  an  act  done  or  omitted  to  be  done  in  pursuance  of 
a  law  of  the  United  States,  or  of  an  order  or  process  of  a  court  of  the 
United  States,  or  otherwise  involving  the  authority  and  operations  of 
the  general  government,  or  its  relations  to  foreign  nations,  the  courts 
of  the  United  States  should  interpose  by  writ  of  habeas  corpus. 

Such  an  exceptional  case  was  In  re  Neagle,  135  U.  S.  1,  in  which  a 
deputy  marshal  of  the  United  States,  charged  under  the  Constitution 
and  laws  of  the  United  States  with  the  duty  of  guarding  and  protect- 
ing a  judge  of  a  court  of  the  United  States,  and  of  doing  whatever 
might  be  necessary  for  that  purpose,  even  to  the  taking  of  human 
life,  was  discharged  on  habeas  corpus  from  custody  under  commit- 
ment by  a  magistrate  of  a  State  on  a  charge  of  homicide  committed 
in  the  performance  of  that  duty. 

Such  also  was  In  re  Loney,  134  U.  S.  372,  in  which  a  person  ar- 
rested by  order  of  a  magistrate  of  a  State,  for  perjury  in  testimony 
given  in  the  case  of  a  contested  congressional  election,  was  dis- 
charged on  habeas  corpus,  because  a  charge  of  such  perjury  was  within 
the  exclusive  cognizance  of  the  courts  of  the  United  States,  and  to 
permit  it  to  be  prosecuted  in  the  State  courts  would  greatly  impede 
and  embarrass  the  administration  of  justice  in  a  national  tribunal. 

Such,  again,  was  Wildenhus's  Case,  120  U.  S.  1,  in  which  the  ques- 
tion was  decided  on  habeas  corpus  whether  an  arrest,  under  author- 
ity of  a  State,  of  one  of  the  crew  of  a  foreign  merchant  vessel,  charged 
with  the  commission  of  a  crime  on  board  of  her  while  in  a  port  within 
the  State,  was  contrary  to  the  provisions  of  a  treaty  between  the 
United  States  and   the  country  to  which  the  vessel  belonged. 

But,  except  in  such  peculiar  and  urgent  cases,  the  courts  of  the 
United  States  will  not  discharge  the  prisoner  by  habeas  corpus  in 
advance  of  a  final  determination  of  his  case  in  the  courts  of  the 
State;  and,  even  after  such  final  determination  in  those  courts,  will 
generally  leave  the  petitioner  to  the  usual  and  orderly  course  of  pro- 
ceeding by  writ  of  error  from  this  court.  Ex  parte  Royall,  117  U.  S. 
241 ;  Ex  parte  Fonda,  117  U.  S.  516 ;  In  re  Duncan,  139  U.  S.  449  ; 
In  re  Wood,  140  U.  S.  278 ;  Li  re  Jugiro,  140  U.  S.  291 ;  Cook  v. 
Hart,  146  U.  S.  183  ;  In  re  Frederich,  149  U.  S.  70;  New  Y'ork  v. 
Eno,  155  U.  S.  89;  Pepke  v.  Cronan,  155  U.  S.  100;  Bergemann 
V.  Backer,  157  U.  S.  655. 

[The  sufficiency  of  the  petition  and  the  showing  made  thereunder 
is  discussed.] 

As  to  those  proceedings,  the  opinion  (consistently  with  the  allega- 
tions of  the  petition,  so  far  as  anything  upon  the  subject  is  distinctly 
and   iinequivocally  alleged   therein)    not   only  states,  as    uncontro- 


SECT.  II.  d.]  WHITTEN   V.   TOMLINSON.  781 

verted  facts,  that  the  petitioner  was  arrested  in  Massachusetts  and 
brought  into  Connecticut  under  a  warrant  of  extradition  issued  by 
the  Governor  of  Massachusetts,  upon  a  requisition  of  the  Governor 
of  Connecticut,  accompanied  by  a  certified  copy  of  the  indictment, 
and  by  an  affidavit  that  the  petitioner  was  a  fugitive  from  justice; 
but  expressly  says  that  it  was  not  denied  that  the  demand  upon  the 
executive  authority  of  Massachusetts,  and  his  action  thereon,  were 
proper  in  form. 

A  warrant  of  extradition  of  the  governor  of  a  State,  issued  upon 
the  requisition  of  the  governor  of  another  State,  accompanied  by  a 
copy  of  an  indictment,  is  prima  facie  evidence,  at  least,  that  the  ac- 
cused had  been  indicted  and  was  a  fugitive  from  justice;  and,  when 
the  court  in  which  the  indictment  was  found  has  jurisdiction  of  the 
offence  (which  there  is  nothing  in  this  case  to  impugn),  is  sufficient 
to  make  it  the  duty  of  the  courts  of  the  United  States  to  decline  in- 
terposition by  writ  of  habeas  corpus,  and  to  leave  the  question  of  the 
lawfulness  of  the  detention  of  the  prisoner,  in  the  State  in  which  he 
was  indicted,  to  be  inquired  into  and  determined,  in  the  first  instance, 
by  the  courts  of  the  State,  which  are  empowered  and  obliged,  equally 
with  the  courts  of  the  United  States,  to  recognize  and  uphold  the 
supremacy  of  the  Constitution  and  laws  of  the  United  States.  Robb 
V.  Connolly,  111  U.  S.  624;  Ex  parte  Reggel,  114  U.  S.  642:  Roberts 
V.  Reilly,  116  U.  S.  80;  Cook  v.  Hart,  146  V.  S.  183;  Pearce  v.  Texas, 
155  U.  S.  311. 

[The  return  and  mittimus  are  considered.] 

There  could  be  no  better  illustration  than  this  case  affords  of  the 
wisdom,  if  not  necessity,  of  the  rule,  established  by  the  decisions  of 
this  court,  above  cited,  that  a  prisoner  in  custody  under  the  authority 
of  a  State  should  not,  except  in  a  case  of  peculiar  urgency,  be  dis- 
charged by  a  court  or  judge  of  the  United  States  upon  a  writ  of 
habeas  corp)us,  in  advance  of  any  proceedings  in  the  courts  of  the 
State  to  test  the  validity  of  his  arrest  and  detention.  To  adopt  a 
different  rule  would  unduly  interfere  with  the  exercise  of  the  crimi- 
nal jurisdiction  of  the  several  States,  and  with  the  performance  by 
this  court  of  its  appropriate  duties. 

Order  affirmed. 


782  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

e.  Grants  of  Federal  Judicial  Power  to  State  Courts  or  Officers. 

ROBERTSON  V.  BALDWIN. 
165  United  States,  275.     1897. 

[Petitionkb  Robertson  and  others,  who  were  seamen  on  board  an 
American  vessel,  "the  Arago,"  escaped  therefrom,  and  were  arrested 
under  the  provisions  of  Rev.  Stat.  §§  4596-4599,  and  taken  before  a 
justice  of  the  peace  of  the  State  of  Oregon  and  by  him  committed  to 
the  United  States  marshal  to  be  returned  to  said  vessel.  Being 
thereafter,  and  in  pursuance  of  this  return,  detained  on  the  vessel  by 
its  officers,  they  refused  to  work,  and  at  San  Francisco  were  arrested 
and  brought  before  a  commissioner  of  the  United  States  charged 
with  such  refusal,  as  a  violation  of  Rev.  Stat,  §  4596.  Being  held  to 
answer  for  this  offence,  they  sued  out  a  writ  of  habeas  corpus  in 
the  District  Court  of  the  United  States  for  the  Northern  District  of 
California,  alleging  that  their  arrest  and  return  to  the  vessel  in  Oregon 
were  without  authority  because  of  the  unconstitutionality  of  the  statu- 
tory provisions  above  referred  to,  and  because  the  proceedings  there- 
under were  before  a  justice  of  the  peace  of  a  State.  The  District  Court 
refused  to  discharge  them  under  the  writ,  and  they  appealed  to  this 
court.  The  facts  of  the  case  are  more  fully  stated,  and  the  portion 
of  the  opinion  relating  to  another  question  is  given,  infra,  p.  891.] 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

1.  The  first  proposition,  that  Congress  has  no  authority  under  the 
Constitution  to  vest  judicial  power  in  the  courts  or  judicial  officers 
of  the  several  States,  originated  in  an  observation  of  Mr.  Justice 
Story  in  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  330,  to  the  effect 
that  "  Congress  cannot  vest  any  portion  of  the  judicial  power  of  the 
United  States,  except  in  courts  ordained  and  established  by  itself," 
This  was  repeated  in  Houston  v.  Moore,  5  Wheat.  1,  27 ;  and  the 
same  general  doctrine  has  received  the  approval  of  the  courts  of 
several  of  the  States.  United  States  v.  Lathrop,  17  Johns.  4;  Ely 
V.  Peck,  7  Conn.  239;  United  States  v.  Campbell,  6  Hall's  Law 
Jour.  113  [Ohio  Com.  Pleas].  These  were  all  actions  for  pen- 
alties, however,  wherein  the  courts  held  to  the  familiar  doctrine  that 
the  courts  of  one  sovereignty  will  not  enforce  the  penal  laws  of 
another.  Huntington  v.  Attrill,  146  U.  S.  657,  672.  In  Common- 
wealth V.  Feely,  1  Va.  Cases,  325,  it  was  held  by  the  General  Court 
of  Virginia  in  1813  that  the  State  courts  could  not  take  jurisdiction 
of  an  indictment  for  a  crime  committed  against  an  act  of  Congress. 

In  Ex  pfirte  Knowles,  5  Cal.  300,  it  was  also  held  that  Congress 
had  no  power  to  confer  jurisdiction  upon  the  courts  of  a  State  to 


SECT.  II.  e.]  ROBERTSON    V.   BALDWIN.  783 

naturalize  aliens,  although,  if  such  power  be  recognized  by  the  legis- 
lature of  a  State,  it  may  be  exercised  by  the  courts  of  such  State  of 
competent  jurisdiction. 

In  State  v.  Rutter,  12  Xiles'  Register,  115,  231,  it  was  held  in  1817, 
by  Judges  Rland  and  Hanson  of  Maryland,  that  Congress  had  no 
power  to  authorize  justices  of  the  peace  to  issue  warrants  for  the  ap- 
prehension of  offenders  against  the  laws  of  the  United  States.  A 
directly  contrary  view,  however,  was  taken  by  Judge  Cheves  of 
South  Carolina  in  Ex  parte  Rhodes,  12  Niles'  Reg.  264. 

The  general  principle  announced  by  these  cases  is  derived  from  the 
third  article  of  the  Constitution,  the  first  section  of  which  declares 
that  "the  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish,"  the  judges  of  which  courts  '•'  shall 
hold  their  offices  during  good  behavior,"  &c.  ;  and  by  the  second 
section,  "  the  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority  ; 
to  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls; 
to  all  cases  of  admiralty  and  maritime  jurisdiction  ;  to  controversies 
to  which  the  United  States  shall  be  a  party  ;  to  controversies  be- 
tween two  or  more  States ;  between  a  State  and  citizens  of  another 
State  ;  between  citizens  of  different  States ;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States,  and  be- 
tween a  State  or  the  citizens  thereof,  and  foreign  States,  citizens,  or 
subjects." 

The  better  opinion  is  that  the  second  section  was  intended  as  a 
constitutional  definition  of  the  judicial  power  (Cliisholm  v.  Georgia, 
2  Dall.  419,  475),  which  the  Constitution  intended  to  confine  to  courts 
created  by  Congress  ;  in  other  words,  that  such  power  extends  only 
to  the  trial  and  determination  of  "cases"  in  courts  of  record,  and 
that  Congress  is  still  at  liberty  to  authorize  the  judicial  officers  of  the 
several  States  to  exercise  such  power  as  is  ordinarily  given  to  officers 
of  courts  not  of  record ;  such,  for  instance,  as  the  power  to  take  affi- 
davits, to  arrest  and  commit  for  trial  offenders  against  the  laws  of 
the  United  States,  to  naturalize  aliens,  and  to  perform  such  other 
duties  as  may  be  regarded  as  incidental  to  the  judicial  power  rather 
than  a  part  of  the  judicial  power  itself.  This  was  the  view  taken  by 
the  Supreme  Court  of  Alabama  in  Mc  jm^te  Gist,  26  Ala.  156, 
wherein  the  authority  of  justices  of  the  peace  and  other  such  officers 
to  arrest  and  commit  for  a  violation  of  the  criminal  law  of  the 
United  States  was  held  to  be  no  part  of  the  judicial  power  witliin 
the  third  article  of  the  Constitution.  And  in  the  case  of  Prigg  v.  Penn- 
sylvania, 16  Pet.  539,  it  was  said  that,  as  to  the  authority  conferred 
on  State  magistrates  to  arrest  fugitive  slaves  and  deliver  them  to 
their  owners,  under  the  act  of  February  12,  1793,  while  a  difference 
of  opinion  existed,  and  might  still  exist  upon  this  point  in  different 


784  THE  JUDICIAL   DEPARTMENT.  [CHAP.  VL 

States,  whether  State  magistrates  were  bound  to  act  under  it,  no 
doubt  was  entertained  by  this  court  that  State  magistrates  might,  if 
they  chose,  exercise  the  authority,  unless  prohibited  by  State  legis- 
lation. See  also  Moore  v.  Illinois.  14  How.  13 ;  In  re  Kaine,  14 
How.  103. 

We  think  the  power  of  justices  of  the  peace  to  arrest  deserting 
seamen  and  deliver  them  on  board  their  vessel  is  not  within  the 
delinition  of  the  "judicial  power"  as  defined  by  the  Constitution, 
and  may  be  lawfully  conferred  upon  State  officers.  That  the  author- 
ity is  a  most  convenient  one  to  intrust  to  such  officers  cannot  be 
denied,  as  seamen  frequently  leave  their  vessels  in  small  places, 
where  there  are  no  Federal  judicial  officers,  and  where  a  justice  of 
the  peace  may  usually  be  found,  with  authority  to  issue  warrants 
under  the  State  laws. 


f.  Conflicting  Jurisdiction  of  Federal  and  State  Courts. 

RIGGS  V.  JOHNSON  COUNTY. 
6  WaUace,  166.     1867. 

[A  SUIT  was  brought  by  plaintiff  against  defendant  in  the  Circuit 
Court  of  the  United  States  on  bonds  of  defendant  issued  in  aid  of  a 
railroad,  in  pursuance  of  a  State  statute  of  Iowa  which  had  been  up- 
held by  the  State  courts  at  the  time  these  bonds  were  thus  issued. 
(See  Gelpcke  v.  Dubuque,  1  Wall.  175,  infra,  p.  802.)  Judgment 
being  rendered  in  plaintiff's  favor  against  the  county,  and  execution 
having  been  returned  unsatisfied,  plaintiff  applied  to  the  same  court 
for  the  issuance  of  a  writ  of  mandamus  requiring  the  proper  officers  of 
the  county  to  levy  a  tax  to  pay  his  judgment.  The  officers  set  up  as 
a  defence  the  fact  that,  after  the  rendition  of  the  judgment  and  prior 
to  the  application  for  the  writ,  they  had  been  enjoined  in  a  suit  in 
the  courts  of  the  State,  brought  by  taxpayers  of  the  county,  from 
levying  such  tax ;  but  it  appears  that  this  plaintiff  was  not  a  party  to 
such  suit.  Plaintiff's  demurrer  to  this  answer  of  the  officers  was 
overruled  and  he  sued  out  a  writ  of  error  to  this  court.] 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

[It  is  pointed  out  at  length  that  under  the  statutes  of  Iowa  the 
proceeding  by  mandamus  was  a  proper  one  in  such  case,  and  therefore 
that  it  was  proper  in  the  Federal  court  under  the  provisions  of  the 
acts  of  Congress  (1  Stat,  at  Large,  93  and  276 ;  4  id.  274 ;  5  id.  499 
and  789),  providing  that  procedure  in  the  Federal  courts  in  actions  at 
law  should  conform  to  that  provided  for  the  State  courts.] 


SECT.  II.  f.]  RIGGS   V.   JOHNSON   COUNTY.  785 

Regularity  of  the  proceedings  in  the  primary  suit  are  not  open  to 
inquiry,  and  it  is  conceded  that  the  judgment  was  in  regular  form; 
and  if  so,  then  the  power  of  the  Circuit  Court  to  issue  final  process, 
agreeably  to  the  principles  and  usages  of  law,  to  enforce  the  judg- 
ment, is  undeniable.  Wayman  v.  Southard,  10  Wheat.  22 ;  Bank  of 
the  United  States  v.  Halstead,  id.  56. 

Authority  of  the  Circuit  Courts  to  issue  process  of  any  kind  which 
is  necessary  to  the  exercise  of  jurisdiction  and  agreeable  to  the  prin- 
ciples and  usages  of  law,  is  beyond  question,  and  the  power  so  con- 
ferred cannot  be  controlled  either  by  the  process  of  the  State  courts 
or  by  any  act  of  a  State  legislature.  Such  an  attempt  was  made  in 
the  early  history  of  Federal  jurisprudence,  but  it  was  wholly  unsuc- 
cessful. McKim  V.  Voorhies,  7  Cranch,  281.  Suit  in  that  case  was 
ejectment  and  the  verdict  was  for  the  plaintiff.  Defeated  in  the 
Circuit  Court,  the  defendant  went  into  the  State  court  and  obtained 
an  injunction  staying  all  proceedings.  Plaintiff  applied  for  a  writ  of 
habere  facias  possessionem,  but  the  judges  of  the  Circuit  Court  being 
opposed  in  opinion  whether  the  writ  ought  to  issue,  the  point  was 
certified  to  this  court;  and  the  decision  was  that  the  State  court 
had  no  jurisdiction  to  enjoin  a  judgment  of  the  Circuit  Court,  and 
the  directions  were  that  the  writ  of  possession  should  issue.  Prior 
decisions  of  the  court  had  determined  that  a  Circuit  Court  could  not 
enjoin  the  proceedings  in  a  State  court,  and  any  attempt  of  the  kind 
is  forbidden  by  an  act  of  Congress.  Diggs  et  al.  v.  Wolcott,  4  Cranch, 
179  ;  1  Stat,  at  Large,  335. 

Repeated  decisions  of  this  court  have  also  determined  that  State 
laws,  whether  general  or  enacted  for  the  particular  case,  cannot  in 
any  manner  limit  or  affect  the  operation  of  the  process  or  pro- 
ceedings in  the  Federal  courts.  United  States  v.  Peters,  5  Cranch, 
136. 

The  Constitution  itself  becomes  a  mockery,  say  the  court  in  that 
case,  if  the  State  legislatures  may  at  will  annul  the  judgments  of 
the  Federal  courts,  and  the  nation  is  deprived  of  the  means  of 
enforcing  its  own  laws  by  the  instrumentality  of  its  own  tribunals. 
Slocum  V.  Mayberry,  2  Wheat.  9 ;  Beers  et  al.  v.  Haughton, 
9  Pet.  359. 

Congress  may  adopt  State  laws  for  such  a  purpose  directly,  or  con- 
fide the  authority  to  adopt  them  to  the  Federal  courts  ;  but  their  whole 
efficacy  when  adopted  depends  upon  the  enactments  of  Congress,  and 
they  are  neither  controlled  or  controllable  by  any  State  regulation. 
United  States  v.  Peters,  5  Cranch,  136 ;  Boyle  v.  Zacharie  et  al.,  6  Pet. 
658. 

State  courts  are  exempt  from  all  interference  by  the  Federal  tri- 
bunals, but  they  are  destitute  of  all  power  to  restrain  either  the  pro- 
cess or  proceedings  in  the  national  courts.  Duncan  v.  Darst  et  al., 
1  How.  306 ;  Peck  v.  Jenness,  7  id.  625.  Circuit  Courts  and  State 
courts  act  separably  and  independently  of  each  other,  and  in  their 

60 


786  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

respective  spheres  of  action  the  process  issued  by  the  one  is  as  far 
beyond  the  reach  of  the  other,  as  if  the  line  of  division  between 
them  "  was  traced  by  landmarks  and  monuments  visible  to  the 
eye."  Ableman  v.  Booth,  21  How.  516.  Appellate  relations  exist 
in  a  class  of  cases  between  the  State  courts  and  this  court,  but  there 
are  no  such  relations  between  the  State  courts  and  the  Circuit 
Courts. 

Viewed  in  any  light,  therefore,  it  is  obvious  that  the  injunction  of 
a  State  court  is  inoperative  to  control,  or  in  any  manner  to  affect,  the 
process  or  proceedings  of  a  Circuit  Court,  not  on  account  of  any  para- 
mount jurisdiction  in  the  latter  courts,  but  because,  in  their  sphere 
of  action.  Circuit  Courts  are  wholly  independent  of  the  State  tribunals. 
Based  on  that  consideration,  the  settled  rule  is,  that  the  remedy  of  a 
party,  whose  property  is  wrongfully  attached  under  process  issued 
from  a  Circuit  Court,  if  he  wishes  to  pursue  it  in  a  State  tribunal,  is 
trespass,  and  not  replevin,  as  the  sheriff  cannot  take  the  proi)erty  out 
of  the  possession  and  custody  of  the  marshal.  Freeman  v.  Howe  et 
al.,  24  id.  455;  Buck  v.  Colbath,  3  Wall.  341.  Suppose  that  to  be 
so,  still  the  defendants  insist  tliat  the  writ  was  properly  refused, 
because  the  injunction  was  issued  before  the  plaintiff's  application 
was  presented  to  the  Circuit  Court.  Undoubtedly  Circuit  Courts  and 
State  courts,  in  certain  controversies  between  citizens  of  different 
States,  are  courts  of  concurrent  and  co-ordinate  jurisdiction;  and  the 
general  rule  is,  that  as  between  courts  of  concurrent  jurisdiction,  the 
court  that  first  obtains  possession  of  the  controversy,  or  of  the  prop- 
erty in  dispute,  must  be  allowed  to  dispose  of  it  without  interference 
or  interruption  from  the  co-ordinate  court.  Such  questions  usually 
arise  in  respect  to  property  attached  on  mesne  process,  or  property 
seized  upon  execution ;  and  the  general  rule  is,  that  where  there  are 
two  or  more  tribunals  competent  to  issue  process  to  bind  the  goods  of 
a  party,  the  goods  shall  be  considered  as  effectually  bound  by  the 
authority  of  the  process  under  which  they  were  first  attached  or 
seized.     Payne  v.  Drewe,  4  East,  523. 

Corresponding  decisions  have  been  made  in  this  court,  as  in  the 
case  of  Hagan  v.  Lucas,  10  Pet.  400,  where  it  was  held  that  the  mar- 
shal could  not  seize  property  previously  attached  by  the  sheriff,  and 
held  by  him  or  his  agent,  under  valid  process  from  a  State  court. 
Eule  laid  down  in  the  case  of  Taylor  v.  Carryl  et  al.,  20  How.  595,  is 
to  the  same  effect  as  understood  by  a  majority  of  the  coui't.  Mallett 
V.  Dexter,  1  Curtis  C.  C.  174. 

Argument  for  the  defendants  is,  that  the  rule  established  in  those 
and  kindred  cases  controls  the  present  controversy ;  but  the  court  is 
of  a  different  opinion,  for  various  reasons,  in  addition  to  those 
already  mentioned.  Unless  it  be  held  that  the  application  of  the 
plaintiff  for  the  writ  is  a  new  suit,  it  is  quite  clear  that  the  proposi- 
tion is  wholly  untenable.  Theory  of  the  plaintiff  is,  that  the  writ  of 
mandamus,  in  a  case  like  the  present,  is  a  writ  in  aid  of  jurisdiction 


SECT.  II.  f.]  RIGGS   V.   JOHNSON    COUNTY.  787 

which  has  previously  attached,  and  that,  in  such  cases,  it  is  a  pro- 
cess ancillary  to  the  judgment,  and  is  the  proper  substitute  for  the 
ordinary  process  of  execution,  to  enforce  the  payment  of  the  same,  as 
provided  in  the  contract.  Grant  that  such  is  the  nature  and  character 
of  the  writ,  as  applied  in  such  a  case,  and  it  is  clear  that  the  proposi- 
tion of  the  defendants  must  utterly  fail,  as  in  that  view  there  can  be 
no  conflict  of  jurisdiction,  because  it  has  already  appeared  that  a 
State  court  cannot  enjoin  the  process  or  proceedings  of  a  Circuit 
Court. 

Complete  jurisdiction  of  the  case,  which  resulted  in  the  judgment, 
is  conceded  ;  and  if  it  be  true  that  the  writ  of  mandamus  is  a  remedy 
ancillary  to  the  judgment,  and  is  the  proper  process  to  enforce  the 
payment  of  the  same,  then  there  is  an  end  of  the  argument,  as  it  can- 
not be  contended  that  a  State  court  can  enjoin  any  such  process  of  a 
Federal  court.  When  issued  by  a  Federal  court,  the  writ  of  man- 
damus is  never  a  prerogative  writ.  Kentucky  v.  Dennison,  24  How. 
97.  Outside  of  this  district  no  Circuit  Court  can  issue  it  at  all  in  the 
exercise  of  original  jurisdiction. 

Power  of  the  Circuit  Courts  in  the  several  States  to  issue  the  writ 
of  mandamus  is  confined  exclusively  to  those  cases  in  which  it  may 
be  necessary  to  the  exercise  of  their  jurisdiction.  Express  determi- 
nation of  this  court  is,  that  it  can  only  be  issued  by  those  courts  in 
cases  where  the  jurisdiction  already  exists,  and  not  where  it  is  to  be 
acquired  by  means  of  the  writ.  Kendall  v.  United  States,  12  Pet. 
615-627;  McClung  v.  Silliman,  6  Wheat.  601;  Mclntire  v.  Wood, 
7  C ranch,  506. 

Proposition  of  the  defendants  proves  too  much  ;  for  if  it  be  correct, 
the  Circuit  Courts  in  the  several  States  cannot  issue  the  writ  in  any 
case.  Such  a  proposition  finds  no  support  in  the  language  of  the 
Judiciary  Act,  or  in  the  decisions  of  this  court.  Twice  this  court 
has  affirmed  the  ruling  of  the  Circuit  Court  in  granting  the  writ  in 
analogous  cases,  and  once  or  more  this  court  has  reversed  the  ruling 
of  the  Circuit  Court  in  refusing  the  writ,  and  remanded  the  cause, 
with  directions  that  it  should  be  issued.  Knox  County  v.  Aspinwall 
et  al.,  24  How.  385 ;  Von  Hoffman  v.  Quincy,  4  Wall.  554  ;  Super- 
visors V.  United  States,  id.  446.  Learned  courts  in  the  States  have 
advanced  the  same  views,  and  it  does  not  appear  that  there  is  any 
contrariety  of  decision.  Thomas  ??•  Allegheny  County,  32  Penn.  St. 
225;  Hamilton  v.  Pittsburg,  34  id.  509;  Armstrong  v.  Allegheny, 
37  id.  279;  Graham  et  al.  v.  Maddox  et  al.,  6  Am.  Law  Pveg. 
620;  Carroll  v.  Board  of  Police,  28  Miss.  38;  Moses  on  Man- 
damus, 126. 

Tested  by  all  these  considerations,  our  conclusion  is,  that  the  prop- 
ositions of  the  defendants  cannot  be  sustained,  and  that  the  Circuit 
Co\irts  in  the  several  States  may  issue  the  writ  of  mandamus  in  a 
proper  case,  where  it  is  necessary  to  the  exercise  of  their  respective 
jurisdictions,  agreeably  to  the  principles  and  usages  of  law.     Where 


788  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

such  an  exigency  arises,  they  may  issue  it;  but  when  so  employed,  it 
is  neither  a  prerogative  writ  nor  a  new  suit,  in  the  jurisdictional 
sense.  On  the  contrary,  it  is  a  proceeding  ancillary  to  the  judgment 
which  gives  the  jurisdiction,  and  when  issued,  becomes  a  substitute 
for  the  ordinary  process  of  execution  to  enforce  the  payment  of  the 
same,  as  provided  in  the  contract.  Kentucky  v.  Dennison,  24  How. 
97. 

Next  suggestion  of  the  defendants  is,  that  if  the  writ  is  issued,  and 
they  should  obey  its  commands,  they  may  be  exposed  to  a  suit  for 
damages  or  to  attachment  for  contempt,  and  imprisonment.  No  such 
apprehensions  are  entertained  by  the  court,  as  all  experience  shows 
that  the  State  courts  at  all  times  have  readily  acquiesced  in  the 
judgments  of  this  court  in  all  cases  confided  to  its  determination 
under  the  Constitution  and  laws  of  Congress.  Guided  by  the  experi- 
ence of  the  past,  our  just  expectations  of  the  future  are  that  the 
same  just  views  will  prevail.  Should  it  be  otherwise,  however,  the 
defendants  will  find  the  most  ample  means  of  protection  at  hand. 
Proper  course  for  them  to  pursue,  in  case  they  are  sued  for  damages, 
is  to  plead  the  commands  of  the  writ  in  bar  of  the  suit ;  and  if  their 
defence  is  overruled,  and  judgment  is  rendered  against  them,  a  writ 
of  error  will  lie  to  the  judgment,  under  the  twenty-fifth  section  of 
the  Judiciary  Act. 

Remedy  in  case  of  imprisonment  is  a  very  plain  one,  under  the 
seventh  section  of  the  act  of  the  second  of  March,  1833,  entitled  An 
Act  further  to  provide  for  the  collection  of  the  duties  on  imports. 
Prisoners  in  jail  or  confinement  for  any  act  done  or  omitted  to  be 
done  in  pursuance  of  a  law  of  the  United  States,  or  any  order,  pro- 
cess, or  decree  of  any  judge  or  court  thereof,  may  apply  to  either  of 
the  justices  of  the  Supreme,  or  a  judge  of  any  District  Court  of  the 
United  States  for  the  writ  of  habeas  corpus,,  and  they  are  severally 
authorized  to  grant  it,  in  addition  to  the  authority  otherwise  con- 
ferred by  law.     4  Stat,  at  Large,  634. 

Under  any  such  circumstances,  the  wisdom  of  Congress  has  pro- 
vided the  means  of  protection  to  all  persons  sued  or  imprisoned  for 
any  act  done  or  omitted  to  be  done  in  pursuance  of  a  law  of  the 
United  States,  or  any  order,  process,  or  decree  of  any  Federal  judge 
or  court  of  competent  jurisdiction. 

Judgment  reversed^  and  the  cause  remanded  with  directions  to 
sustain  the  demurrer  a7id  for  further  proceedings  in  conformity 
to  the  opinion  of  the  court?- 

1  Mr.  Justice  Miller  delivered  a  dissenting  opinion,  in  which  Mr.  Chief 
JtrsTicE  Chase  and  Mb.  Justice  Gbier  concurred. 


SECT.  III.  a.]  GREEN    V.   NEAL'S   LESSEE.  789 


Section  III.  —  The  Law  administered. 


a.   Folloiving  the  Law  of  the  State. 

GREEN   V.   NEAL'S   LESSEE. 
6  Peters,  291 ;  10  Curtis,  119.     1832. 

M'Lean,  J.,  delivered  the  opinion  of  the  court. 

This  writ  of  error  is  prosecuted  to  reverse  a  judgment  of  the  Cir- 
cuit Court  for  West  Tennessee.  An  action  of  ejectment  was  prose- 
cuted by  Neal  in  that  court,  to  recover  the  possession  of  six  hundred 
and  forty  acres  of  land  The  issue  was  joined,  and  at  the  trial  the 
defendant  relied  upon  the  statute  of  limitations,  and  prayed  certain 
instructions  of  the  court  to  the  jury.  Instructions  were  given,  as 
stated  in  the  following  bill  of  exceptions. 

"In  the  trial,  the  plaintiff  introduced  in  evidence  a  grant  from  the 
State  of  North  Carolina,  dated  ,  to  Willoughby  Williams, 

for  the  land  in  controversy,  and  deduced  a  regular  chain  of  convey- 
ances to  plaintiff's  lessor,  and  proved  defendant  in  possession  of  the 
land  in  question  at  the  time  suit  was  brought;  defendant  introduced 
a  deed  from  Andrew  Jackson  to  Edward  Dillon,  and  proved  that 
defendant  held  by  a  lease  from  Dillon;  and  also  in  support  of  Dil- 
lon's title,  introduced  evidence  tending  to  prove  that  persons  claim- 
ing under  and  for  Dillon,  had  been  more  than  seven  years  in 
possession  of  the  premises  in  dispute,  adverse  to  the  plaintiffs;  upon 
which  the  court  charged  the  jury  that,  according  to  the  present  state 
of  decision  in  the  Supreme  Court  of  the  United  States,  they  could 
not  charge  that  defendant's  title  was  made  good  by  the  statute  of 
limitations." 

The  decision  of  the  point  raised  by  the  bill  of  exceptions  in  this 
case  is  one  of  great  importance,  both  as  it  respects  the  amount  of 
property  which  may  be  affected  by  it,  and  the  principle  which  it 
involves. 

In  the  case  of  Patton's  Lessee  v.  Easton,  1  Wheat.  476,  which  was 
brought  to  this  court  by  writ  of  error  in  181G,  the  same  question, 
which  was  raised  by  the  bill  of  exceptions,  was  then  decided.  But 
it  is  contended  that,  under  the  peculiar  circiimstances  of  the  case 
now  before  the  court,  they  ought  not  to  feel  themselves  bound  by 
their  former  decision.  This  court,  in  the  case  of  Powell's  Lessee 
V.  Harman,  2  Pet.  241,  gave  another  decision,  under  the  authority 
of  the  one  just  named ;  but  the  question  was  not  argued  before  the 
court. 


790  THE   JUDICIAL   DEPARTMENT.  [CHA.P.  VI. 

The  question  involves,  in  the  first  place,  the  construction  of  the 
statutes  of  limitations,  passed  in  1715  and  in  1797.  The  former 
was  adopted  by  the  State  of  Tennessee,  from  North  Carolina;  the 
third  section  of  which  provides,  "that  no  person  or  persons,  or  their 
heirs,  which  hereafter  shall  have  any  right  or  title  to  any  lands, 
tenements,  or  hereditaments,  shall  thereunto  enter  or  make  claim, 
but  within  seven  years  after  his,  her,  or  their  right  or  title  shall 
descend  or  accrue;  and  in  default  thereof,  such  person  or  persons 
so  not  entering  or  making  default,  shall  be  utterly  excluded  and  dis- 
abled from  any  entry  or  claim  thereafter  to  be  made."  The  fourth 
section  provides,  after  enumerating  certain  disabilities,  and  the  time 
within  which  suit  must  be  brought,  after  they  shall  cease,  that 
"all  possessions  held  without  suing  such  claim  as  aforesaid,  shall 
be  a  perpetual  bar  against  all  and  all  manner  of  persons  whatever, 
that  the  expectation  of  heirs  may  not,  in  a  short  time,  leave  much 
land  unpossessed,  and  titles  so  perplexed  that  no  man  will  know 
from  whom  to  take  or  buy  land." 

In  the  year  1797,  the  legislature,  in  order  to  settle  the  "true 
construction  of  the  existing  laws  respecting  seven  years'  posses- 
sion," enact  "that  in  all  cases,  wherever  any  person  or  persons  shall 
have  had  seven  years'  peaceable  possession  of  any  land,  by  virtue  of 
a  grant  or  deed  of  conveyance  founded  upon  a  grant,  and  no  legal 
claim  by  suit  in  law,  by  such,  set  up  to  said  land,  within  the  above 
term,  that  then,  and  in  that  case,  the  person  or  persons  so  holding 
possession  as  aforesaid,  shall  be  entitled  to  hold  possession  in  pref- 
erence to  all  other  claimants,  such  quantity  of  land  as  shall  be  speci- 
fied in  his,  her,  or  their  said  grant  or  deed  of  conveyance,  founded 
on  a  grant  as  aforesaid." 

This  act  further  provides  that  those  who  neglect,  for  the  term  of 
seven  years,  to  assert  their  claim,  shall  be  barred. 

This  court,  in  the  conclusion  of  their  opinion  in  the  case  of  Pat- 
ton's  Lessee  v.  Easton,  1  Wheat.  481,  say,  "This  question,  too,  has 
at  length  been  decided  in  the  Supreme  Court  of  the  State.  Subse- 
quent to  the  division  of  opinion  on  this  question  in  the  Circuit  Court, 
two  cases  have  been  decided  in  the  Supreme  Court  for  the  State  of 
Tennessee,  which  have  settled  the  construction  of  the  act  of  1797. 
It  has  been  decided,  that  a  possession  of  seven  years  is  a  bar  only 
when  held  '  under  a  grant,  or  a  deed  founded  on  a  grant.'  The  deed 
must  be  connected  with  the  grant.  This  court  concurs  in  that 
opinion,  A  deed  cannot  be  *  founded  on  a  grant,'  which  gives  a  title 
not  derived  in  law  or  equity  from  that  grant;  and  the  words, 
'founded  on  a  grant,'  are  too  important  to  be  discarded." 

The  two  decided  cases,  to  which  reference  is  made  above,  are 
Lillard  v.  Elliott,  and  Douglass  v.  Bledsoe's  Heirs.  These  cases 
were  decided  in  the  year  1815;  and  this  court  considered  that  they 
settled  the  construction  of  the  statute  of  1797.  But  it  is  now  made 
to  appear  that  these  decisions  were  made  under  such  circumstances 


SECT.  III.  a.]  GREEN    V.   NEAL's   LESSEE.  791 

tliat  they  were  never  considered,  in  the  State  of  Tennessee,  as  fully 
settling  the  construction  of  the  act. 

In  the  case  of  Lillard  v.  Elliott,  it  seems  but  two  judges  concurred 
on  the  point,  the  court  being  composed  of  four;  and,  in  the  case  of 
Weatherhead  v.  Bledsoe,  2  Overton,  352,  there  was  great  contrariety 
of  opinion  among  the  judges,  on  the  point  of  either  legal  or  equi- 
table connection.  The  question  was  frequently  raised  before  the 
Supreme  Court  of  Tennessee;  but  the  construction  of  the  two  statutes 
of  limitations  was  never  considered  as  finally  settled  until  1825, 
when  the  case  of  Gray  and  Reeder  v.  Darby's  Lessee,  Mart.  &  Yerg. 
396,  was  decided. 

In  this  cause,  an  elaborate  review  of  the  cases  which  had  arisen 
under  the  statute  is  taken,  and  the  construction  of  both  statutes  was 
given,  that  it  is  not  necessary,  to  entitle  an  individual  to  the  bene- 
fits of  the  statutes,  that  he  should  show  a  connected  title,  either 
legal  or  equitable.  That  if  he  prove  an  adverse  possession  of  seven 
years  under  a  deed,  before  suit  is  brought,  and  show  that  the  land 
has  been  granted,  he  brings  himself  within  the  statutes. 

Since  this  decision,  the  law  has  been  considered  as  settled  in  Ten- 
nessee; and  there  has  been  so  general  an  acquiescence  in  all  the 
courts  of  the  State,  that  the  point  is  not  now  raised  or  discussed. 
This  construction  has  become  a  rule  of  property  in  the  State,  and 
numerous  suits  involving  title  have  been  settled  by  it. 

Had  this  been  the  settled  construction  of  these  statutes  when  the 
decision  was  made  by  this  court,  in  the  case  of  Patton's  Lessee  v. 
Easton,  there  can  be  no  doubt  that  that  opinion  would  have  con- 
formed to  it.  But  the  question  is  now  raised,  whether  this  court 
will  adhere  to  its  own  decision,  made  under  the  circumstances 
stated,  or  yield  to  that  of  the  judicial  tribunals  of  Tennessee.  This 
point  has  never  before  been  directly  decided  by  this  court,  on  a 
question  of  general  importance.  The  cases  are  numerous  where  the 
court  have  adopted  the  constructions  given  to  the  statute  of  a  State 
by  its  supreme  judicial  tribunal;  but  it  has  never  been  decided  that 
this  court  will  overrule  their  own  adjudication,  establishing  an  im- 
portant rule  of  property,  where  it  has  been  founded  on  the  construc- 
tion of  a  statute  made  in  conformity  to  the  decisions  of  the  State  at 
the  time,  so  as  to  conform  to  a  different  construction  adopted  after- 
wards by  the  State. 

This  is  a  question  of  grave  import,  and  should  be  approached  with 
great  deliberation.  It  is  deeply  interesting  in  every  point  of  view 
in  which  it  may  be  considered.  As  a  rule  of  property  it  is  impor- 
tant; and  equally  so,  as  it  regards  the  system  under  which  the 
powers  of  this  tribunal  are  exercised. 

It  may  be  proper  to  examine  in  what  light  the  decisions  of  the 
State  courts,  in  giving  a  construction  to  their  own  statutes,  have  been 
considered  by  this  court. 

In  the  case  of  M'Keen  v.  Delancy's  Lessee,  reported  in  5  Cranch, 


792  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

22,  this  court  held,  that  the  acknowledgment  of  a  deed  before  a  jus- 
tice of  the  Supreme  Court,  under  a  statute  which  required  the 
acknowledgment  to  be  made  before  a  justice  of  the  peace,  having 
been  long  practised  in  Pennsylvania,  and  sanctioned  by  her  tribunals, 
must  be  considered  as  within  the  statute. 

The  Chief  Justice,  in  giving  the  opinion  of  the  court  in  the  case  of 
Bodley  v.  Taylor,  5  Cranch,  221,  says,  in  reference  to  the  jurisdic- 
tion of  a  court  of  equity :  "  Had  this  been  a  case  of  the  first  impres- 
sion, some  contrariety  of  opinion  would,  perhaps,  have  existed  on 
this  point.  But  it  has  been  sutficiently  shown,  that  the  practice  of 
resorting  to  a  court  of  chancery,  in  order  to  set  up  an  equitable 
against  the  legal  title,  received  in  its  origin  the  sanction  of  the  Court 
of  Appeals,  while  Kentucky  remained  a  part  of  Virginia,  and  has 
been  so  confirmed  by  an  uninterrupted  series  of  decisions,  as  to  be 
incorporated  into  their  system,  and  to  be  taken  into  view  in  the 
consideration  of  every  title  to  lands  in  that  country.  Such  a  prin- 
ciple cannot  now  be  shaken." 

In  the  case  of  Taylor  v.  Brown,  5  Cranch,  255,  the  court  say,  in 
reference  to  their  decision  in  the  case  of  Bodley  v.  Taylor:  "This 
opinion  is  still  thought  perfectly  correct  in  itself.  Its  application 
to  particular  cases,  and  indeed  its  being  considered  as  a  rule  of  de- 
cision on  Kentucky  titles,  will  depend  very  much  on  the  decisions 
of  that  country.  For,  in  questions  respecting  title  to  real  estate, 
especially,  the  same  rule  ought  certainly  to  prevail  in  both  courts." 
This  court,  in  laying  down  the  requisites  of  a  valid  entry,  in  the 
case  of  Massie  v.  Watts,  6  Cranch,  165,  say :  "  These  principles  have 
been  laid  down  by  the  courts,  and  must  be  considered  as  expositions 
of  the  statute.  A  great  proportion  of  the  landed  property  of  the 
country  depends  on  adhering  to  them." 

In  9  Cranch,  98,  the  court  say,  that  "  in  cases  depending  on  the 
statute  of  a  State,  and  more  especially  in  those  respecting  titles  to 
lands,  the  Federal  courts  adopt  the  construction  of  the  State,  where 
that  construction  is  settled  and  can  be  ascertained.  And  in  5 
Wheat.  279,  it  is  stated,  that  "the  Supreme  Court  uniformly  acts 
under  a  desire  to  conform  its  decisions  to  those  of  the  State  courts, 
on  their  local  laws." 

The  Supreme  Court  holds  in  the  highest  respect  decisions  of  State 
courts  upon  local  laws  forming  rules  of  property.  2  Wheat.  316. 
In  construing  local  statutes  respecting  real  property,  the  courts 
of  the  Union  are  governed  by  the  decisions  of  the  State  tribunals. 
6  Wheat.  119.  The  court  say,  in  the  case  of  Elmendorf  v.  Taylor  et 
al.,  10  Wheat.  152,  "that  the  courts  of  the  United  States,  in  cases  de- 
pending on  the  laws  of  a  particular  State,  will,  in  general,  adopt  the 
construction  which  the  courts  of  the  State  have  given  to  those  laws." 
"This  course  is  founded  upon  the  principle,  supposed  to  be  univer- 
sally recognized,  that  the  judicial  department  of  every  government, 
where  such  department  exists,  is  the  appropriate  organ  for  constru- 
ing the  legislative  acts  of  that  government." 


SECT.  III.  a.]  GREEN   V.   NEAL's   LESSEE.  793 

In  7  Wheat.  861,  the  court  again  declare,  that  "  the  statute  laws  of 
the  States  must  furnish  the  rule  of  decision  to  the  Federal  courts, 
as  far  as  they  comport  with  the  Constitution  of  the  United  States,  in 
all  cases  arising  within  the  respective  States;  and  a  fixed  and  re- 
ceived construction  of  their  respective  statute  laws,  in  their  own 
courts,  makes  a  part  of  such  statute  law.  The  court  again  say,  in 
12  Wheat.  153,  "that  this  court  adopts  the  local  law  of  real  property, 
as  ascertained  by  the  decisions  of  the  State  courts,  whether  these 
decisions  are  grounded  on  the  construction  of  the  statutes  of  the 
State,  or  form  a  part  of  the  unwritten  law  of  the  State,  which  has 
become  a  fixed  rule  of  property." 

Quotations  might  be  multiplied,  but  the  above  will  show  that  this 
court  have  uniformly  adopted  the  decisions  of  the  State  tribunals 
respectively,  in  the  construction  of  their  statutes.  That  this  has 
been  done  as  a  matter  of  principle,  in  all  cases  where  the  decision 
of  a  State  court  has  become  a  rule  of  property. 

In  a  great  majority  of  the  causes  brought  before  the  Federal  tribu- 
nals, they  are  called  to  enforce  the  laws  of  the  States.  The  rights 
of  parties  are  determined  under  those  laws,  and  it  would  be  a 
strange  perversion  of  principle,  if  the  judicial  exposition  of  those 
laws,  by  the  State  tribunals,  should  be  disregarded.  These  expo- 
sitions constitute  the  law,  and  fix  the  rule  of  property.  Eights  are 
acquired  under  this  rule,  and  it  regulates  all  the  transactions  which 
come  within  its  scope. 

It  is  admitted  in  the  argument,  that  this  court,  in  giving  a  con- 
struction to  a  local  law,  will  be  influenced  by  the  decisions  of  the 
local  tribunals;  but,  it  is  contended,  that  when  such  a  construction 
shall  be  given  in  conformity  to  those  decisions,  it  must  be  considered 
final.  That  if  the  State  shall  change  the  rule,  it  does  not  comport 
either  with  the  consistency  or  dignity  of  this  tribunal  to  adopt  the 
change.  Such  a  course,  it  is  insisted,  would  recognize  in  the  State 
courts  a  power  to  revise  the  decisions  of  this  court,  and  fix  the  rule 
of  property  differently  from  its  solemn  adjudications.  That  the 
Federal  court,  when  sitting  within  a  State,  is  the  court  of  that  State, 
being  so  constituted  by  the  Constitution  and  laws  of  the  Union ;  and 
as  such,  has  an  equal  right  with  the  State  courts  to  fix  the  construc- 
tion of  the  local  law. 

On  all  questions  arising  under  the  Constitution  and  laws  of  the 
Union,  this  court  may  exercise  a  revising  power,  and  its  decisions 
are  final  and  obligatory  on  all  other  judicial  tribunals.  State  as  well 
as  Federal.  A  State  tribunal  has  a  right  to  examine  any  such  ques- 
tions and  to  determine  them,  but  its  decision  must  conform  to  that 
of  the  Supreme  Court,  or  the  corrective  power  may  be  exercised. 
But  the  case  is  very  different  where  a  question  arises  under  a  local 
law.  The  decision  of  this  question,  by  the  highest  judicial  tribunal 
of  a  State,  should  be  considered  as  final  by  this  court;  not  because 
the  State  tribunal,  in  such  a  case,  has  any  power  to  bind  this  court; 


794  THE    JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

but  because,  in  the  language  of  the  court,  in  the  ease  of  Shelby  et  al. 
V.  Guy,  11  Wheat.  361,  "  a  fixed  and  received  construction  by  a  State, 
in  its  own  courts,  makes  a  part  of  the  statute  law." 

The  same  reason  which  influences  this  court  to  adopt  the  construc- 
tion given  to  the  local  law,  in  the  first  instance,  is  not  less  strong 
in  favor  of  following  it  in  the  second,  if  the  State  tribunals  should 
change  the  construction.  A  reference  is  here  made,  not  to  a  single 
adjudication,  but  to  a  series  of  decisions  which  shall  settle  the  rule. 
Are  not  the  injurious  effects  on  the  interests  of  the  citizens  of  a  State 
as  great  in  refusing  to  adopt  the  change  of  construction,  as  in  refus- 
ing to  adopt  the  first  construction  ?  A  refusal  in  the  one  case  as 
well  as  in  the  other  has  the  effect  to  establish,  in  the  State,  two 
rules  of  property. 

Would  not  a  change  in  the  construction  of  a  law  of  the  United 
States,  by  this  tribunal,  be  obligatory  on  the  State  courts  ?  The 
statute,  as  last  expounded,  would  be  the  law  of  the  Union;  and  why 
may  not  the  same  effect  be  given  to  the  last  exposition  of  a  local 
law  by  the  State  court  ?  The  exposition  forms  a  part  of  the  local 
law,  and  is  binding  on  all  the  people  of  the  State,  and  its  inferior 
judicial  tribunals.  It  is  emphatically  the  law  of  the  State,  which 
the  Federal  court,  while  sitting  -within  the  State,  and  this  court, 
when  a  case  is  brought  before  them,  are  called  to  enforce.  If  the 
rule  as  settled  should  prove  inconvenient  or  injurious  to  the  public 
interests,  the  legislature  of  the  State  may  modify  the  law  or 
repeal  it. 

If  the  construction  of  the  highest  judicial  tribunal  of  a  State  form 
a  part  of  its  statute  law,  as  much  as  an  enactment  by  the  legislature, 
how  can  this  court  make  a  distinction  between  them  ?  There  could 
be  no  hesitation  in  so  modifying  our  decisions  as  to  conform  to  any 
legislative  alteration  in  a  statute;  and  why  should  not  the  same  rule 
apply  where  the  judicial  branch  of  the  State  government,  in  the 
exercise  of  its  acknowledged  functions,  should,  by  construction, 
give  a  different  effect  to  a  statute,  from  what  had  at  first  been  given 
to  it.  The  charge  of  inconsistency  might  be  made  with  more  force 
and  propriety  against  the  Federal  tribunals  for  a  disregard  of  this 
rule,  than  by  conforming  to  it.  They  profess  to  be  bound  by  the 
local  law;  and  yet  they  reject  the  exposition  of  that  law  which  forms 
a  part  of  it.  It  is  no  answer  to  this  objection  that  a  different  expo- 
sition was  formerly  given  to  the  act  which  was  adopted  by  the 
Federal  court.  The  inquiry  is,  what  is  the  settled  law  of  the  State 
at  the  time  the  decision  is  made.  This  constitutes  the  rule  of 
property  within  the  State,  by  which  the  rights  of  litigant  parties 
must  be  determined. 

As  the  Federal  tribunals  profess  to  be  governed  by  this  rule,  they 
can  never  a,ct  inconsistently  by  enforcing  it.  If  they  change  their 
decision,  it  is  because  the  rule  on  which  that  decision  was  founded 
has  been  changed. 


SECT.  III.  a.]  GREEN    V.   NEAL'S   LESSEE.  795 

The  case  under  consideration  illustrates  the  propriety  and  neces- 
sity of  this  rule.  It  is  now  the  settled  law  of  Tennessee  that  an 
adverse  possession  of  seven  years,  under  a  deed  for  land  that  has 
been  granted,  will  give  a  valid  title.  But  by  the  decision  of  this 
court  such  a  possession,  under  such  evidence  of  right,  will  not  give 
a  valid  title.  In  addition  to  the  above  requisites,  this  court  have 
decided  that  the  tenant  must  connect  his  deed  with  a  grant.  It 
therefore  follows  that  the  occupant  whose  title  is  protected  under  the 
statutes  before  a  State  tribunal,  is  unprotected  by  them  before  the 
Federal  court.  The  plaintiff  in  ejectment,  after  being  defeated  in 
his  action  before  a  State  court,  on  the  above  construction,  to  insure 
success  has  only  to  bring  an  action  in  the  Federal  court.  This  may 
be  easily  done  by  a  change  of  his  residence,  or  a  bona  fide  convey- 
ance of  the  land. 

Here  is  a  judicial  conflict  arising  from  two  rules  of  property  in 
the  same  State,  and  the  consequences  are  not  only  deeply  injurious 
to  the  citizens  of  the  State,  but  calculated  to  engender  the  most  last- 
ing discontents.  It  is  therefore  essential  to  the  interests  of  the 
country,  and  to  the  harmony  of  the  judicial  action  of  the  Federal 
and  State  governments,  that  there  should  be  but  one  rule  of  prop- 
erty in  a  State. 

In  several  of  the  States,  the  English  statute  of  limitations  has 
been  adopted  with  various  modifications;  but  in  the  saving  clause, 
the  expression  "  beyond  the  seas "  is  retained.  These  words  in 
some  of  the  States  are  construed  to  mean  "out  of  the  State,"  and 
in  others  a  literal  construction  has  been  given  to  them. 

In  the  case  of  Murray's  Lessee  v.  Baker  et  aL,  3  Wheat.  541,  this 
court  decided  that  the  expressions  "beyond  seas,"  and  "out  of  the 
State,"  are  analogous,  and  are  to  have  the  same  construction.  But 
suppose  the  same  question  should  be  brought  before  this  court  from 
a  State  where  the  construction  of  the  same  words  had  been  long 
settled  to  mean  literally  beyond  seas,  would  not  this  court  conform 
to  it  ?  And  might  not  the  same  arguments  be  used  in  such  a  case, 
as  are  now  urged  against  conforming  to  the  local  construction  of  the 
law  of  Tennessee.  Apparent  inconsistencies  in  the  construction  of 
the  statute  laws  of  the  States  may  be  expected  to  arise  from  the 
organization  of  our  judicial  systems;  but  an  adherence  by  the  Federal 
courts  to  the  exposition  of  the  local  law,  as  given  by  the  courts  of 
the  State,  will  greatly  tend  to  preserve  harmony  in  the  exercise  of 
the  judicial  power,  in  the  State  and  Federal  tribunals.  This  rule  is 
not  only  recommended  by  strong  considerations  of  propriety,  growing 
out  of  our  system  of  jurisprudence,  but  it  is  sustained  by  principle 
and  authority. 

As  it  appears  to  this  court  that  the  construction  of  the  statutes  of 
limitations  is  now  well  settled,  differently  from  what  was  supposed 
to  be  the  rule  at  the  time  this  court  decided  the  case  of  Patton's 
Lessee  v.  Easton,  1  Wheat.  476,  and  the  case  of  Powell's  Lessee  v. 


796  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

Harman,  2  Pet.  241;  and  as  tlie  instructions  of  the  Circuit  Court 
were  governed  by  these  decisions,  and  not  by  the  settled  law  of  the 
State;  the  judgment  must  be  reversed,  and  the  cause  remanded  for 
further  proceedings. 

Baldwin,  J.,  dissented.^ 


SWIFT  V.  TYSON. 
16  Peters,  1;  14  Curtis,  166.     1842. 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  cause  comes  before  us  from  the  Circuit  Court  of  the  Southern 
District  of  New  York,  upon  a  certificate  of  division  of  the  judges  of 
that  court. 

The  action  was  brought  by  the  plaintiff.  Swift,  as  indorsee,  against 
the  defendant,  Tyson,  as  acceptor,  upon  a  bill  of  exchange  dated  at 
Portland,  Maine,  on  the  1st  day  of  May,  1836,  for  the  sum  of 
$1,540.30,  payable  six  months  after  date  and  grace,  drawn  by  one 
Nathaniel  Norton  and  one  Jairus  S.  Keith  upon  and  accepted  by 
Tyson,  at  the  city  of  New  York,  in  favor  of  the  order  of  Nathaniel 
Norton,  and  by  Norton  indorsed  to  the  plaintiff.  The  bill  was  dis- 
honored at  maturity. 

At  the  trial,  the  acceptance  and  indorsement  of  the  bill  were 
admitted,  and  the  plaintiff  there  rested  his  case.  The  defendant 
then  introduced  in  evidence  the  answer  of  Swift  to  a  bill  of  discovery, 
by  which  it  appeared  that  Swift  took  the  bill  before  it  became  due, 
in  payment  of  a  promissory  note  due  to  him  by  Norton  and  Keith; 
that  he  understood  that  the  bill  was  accepted  in  part  payment  of 
some  lands  sold  by  Norton  to  a  company  in  New  York;  that  Swift 
was  a  bona  fide  holder  of  the  bill,  not  having  any  notice  of  any- 
thing in  the  sale  or  title  to  the  lands,  or  otherwise,  impeaching  the 
transaction,  and  with  the  full  belief  that  the  bill  was  justly  due. 
The  particular  circumstances  are  fully  set  forth  in  the  answer  in 
the  record;  but  it  does  not  seem  necessary  further  to  state  them. 

1  In  TowNSE\D  V.  Todd.  91  U.  S.  452  (1875),  which  involved  the  validity  of  a 
mortgage,  for  advances  to  be  made,  Mr.  Justice  Hunt,  delivering  the  opinion  of  the 
court,  uses  this  language  :  — 

"  The  question  depends  upon  the  recording  acts  of  the  State  of  Connecticut;  and 
we  are  bound  to  follow  the  decisions  of  the  courts  of  the  State  in  their  construction 
of  those  acts,  if  there  has  been  a  uniform  course  of  decisions  respecting  them."  .  .  . 

[After  stating  the  result  of  the  Connecticut  cases  on  the  question,  and  also  that  in 
other  States  a  contrary  principle  has  been  recognized,  the  court  continues: — ] 

"  We  .should  l)e  quite  willing  to  give  the  appellant  the  benefit  of  this  principle  to 
the  extent  of  his  advances  ;  but  the  contrary  rule  seems  to  be  so  well  settled  in 
Connecticut  that  we  are  not  at  liberty  to  do  so.  The  decree  below  vacating  and  can- 
celling the  appellant's  mortgage,  being  in  conformity  with  that  rule,  is  afl5rmed." 


SECT.  III.  a.]  SWIFT   V.   TYSON.  797 

The  defendant  then  offered  to  prove  that  the  bill  was  accepted  by 
the  defendant  as  part  consideration  for  the  purchase  of  certain 
lands  in  the  State  of  Maine,  which  jSTorton  and  Keith  represented 
themselves  to  be  the  owners  of,  and  also  represented  to  be  of  great 
value,  and  contracted  to  convey  a  good  title  thereto;  and  that  the 
representations  were  in  every  respect  fraudulent  and  false,  and 
Norton  and  Keith  had  no  title  to  the  lands,  and  that  the  same  were 
of  little  or  no  value.  The  plaintiff  objected  to  the  admission  of  such 
testimony,  or  of  any  testimony,  as  against  him,  impeaching  or  show- 
ing a  failure  of  the  consideration  on  which  the  bill  was  accepted, 
under  the  facts  admitted  by  the  defendant,  and  those  proved  by  him, 
by  reading  the  answer  of  the  plaintiff  to  the  bill  of  discovery.  The 
judges  of  the  Circuit  Court  thereupon  divided  in  opinion  upon  the 
following  point  or  question  of  law :  ^Yhether,  under  the  facts  last 
mentioned,  the  defendant  was  entitled  to  the  same  defence  to  the 
action,  as  if  the  suit  was  between  the  original  parties  to  the  bill, 
that  is  to  say,  Norton,  or  Norton  and  Keith,  and  the  defendant;  and 
whether  the  evidence  so  offered  was  admissible  as  against  the  plain- 
tiff in  the  action.  And  this  is  the  question  certified  to  us  for  our 
decision. 

There  is  no  doubt  that  a  bona  fide  holder  of  a  negotiable  instru- 
ment for  a  valuable  consideration,  without  any  notice  of  facts  which 
impeach  its  validity  as  between  the  antecedent  parties,  if  he  takes  it 
under  an  indorsement  made  before  the  same  becomes  due,  holds  the 
title  unaffected  by  these  facts,  and  may  recover  thereon,  although, 
as  between  the  antecedent  parties,  the  transaction  may  be  without 
any  legal  validity.  This  is  a  doctrine  so  long  and  so  well  estab- 
lished, and  so  essential  to  the  security  of  negotiable  paper,  that  it 
is  laid  up  among  the  fundamentals  of  the  law,  and  requires  no 
authority  or  reasoning  to  be  now  brought  in  its  support.  As  little 
doubt  is  there,  that  the  holder  of  any  negotiable  paper,  before  it 
is  due,  is  not  bound  to  prove  that  he  is  a  bona  fide  holder  for  a 
valuable  consideration,  without  notice;  for  the  law  will  presume 
that,  in  the  absence  of  all  rebutting  proofs,  and  therefore  it  is  in- 
cumbent upon  the  defendant  to  establish  by  way  of  defence  satisfac- 
tory proofs  of  the  contrary,  and  thus  to  overcome  the  prima  facie 
title  of  the  plaintiff. 

In  the  present  case,  the  plaintiff  is  a  bona  fide  holder  without  notice 
for  what  the  law  deems  a  good  and  valid  consideration,  that  is,  for 
a  pre-existing  debt;  and  the  only  real  question  in  the  cause  is, 
whether,  under  the  circumstances  of  the  present  case,  such  a  pre- 
existing debt  constitutes  a  valuable  consideration  in  the  sense  of 
the  general  rule  applicable  to  negotiable  instruments.  We  say, 
under  the  circumstances  of  the  present  case,  for  the  acceptance  hnv- 
ing  been  made  in  New  York,  the  argument  on  behalf  of  the  defend- 
ant is,  that  the  contract  is  to  be  treated  as  a  New  York  contract, 
and  therefore  to  be  governed  by  the  laws  of  New  York,  as  expounded 


798  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TI. 

by  its  courts,  as  well  upon  general  principles,  as  by  the  express  pro- 
visions of  the  34th  section  of  the  Judiciary  Act  of  1789,  c.  20.  And 
then  it  is  further  contended  that,  by  the  law  of  New  York,  as  thus 
expounded  by  its  courts,  a  pre-existing  debt  does  not  constitute,  in 
the  sense  of  the  general  rule,  a  valuable  consideration  applicable 
to  negotiable  instruments. 

[Cases  in  the  New  York  courts  are  cited  as  tending  to  show  that 
one  who  takes  negotiable  paper  for  a  pre-existing  debt  does  not  hold 
it  free  from  equities  existing  between  the  original  parties.] 

But,  admitting  the  doctrine  to  be  fully  settled  in  New  York,  it 
remains  to  be  considered  whether  it  is  obligatory  upon  this  court,  if 
it  differs  from  the  principles  established  in  the  general  commercial 
law.  It  is  observable  that  the  courts  of  New  York  do  not  found 
their  decisions  upon  this  point  upon  any  local  statute  or  positive,  fixed 
or  ancient  local  usage;  but  they  deduce  the  doctrine  from  the  general 
principles  of  commercial  law.  It  is,  however,  contended  that  the 
34th  section  of  the  Judiciary  Act  of  1789,  c.  20,  furnishes  a  rule 
obligatory  upon  this  court  to  follow  the  decisions  of  the  State  tribu- 
nals in  all  cases  to  which  they  apply.  That  section  provides  "that 
the  laws  of  the  several  States,  except  where  the  Constitution,  trea- 
ties, or  statutes  of  the  United  States  shall  otherwise  require  or  pro- 
vide, shall  be  regarded  as  rules  of  decision  in  trials  at  common  law 
in  the  courts  of  the  United  States,  in  cases  where  they  apply."  In 
order  to  maintain  the  argument,  it  is  essential,  therefore,  to  hold 
that  the  word  "laws,"  in  this  section,  includes  within  the  scope  of 
its  meaning  the  decisions  of  the  local  tribunals.  In  the  ordinary 
use  of  language,  it  will  hardly  be  contended  that  the  decisions  of 
courts  constitute  laws.  They  are,  at  most,  only  evidence  of  what 
the  laws  are,  and  are  not  of  themselves  laws.  They  are  often  re- 
examined, reversed,  and  qualified  by  the  courts  themselves,  when- 
ever they  are  fo-und  to  be  either  defective,  or  ill-founded  or  otherwise 
incorrect.  The  laws  of  a  State  are  more  usually  understood  to  mean 
the  rules  and  enactments  promulgated  by  the  legislative  authority 
thereof,  or  long-established  local  customs  having  the  force  of  laws. 
In  all  the  various  cases,  which  have  hitherto  come  before  us  for 
decision,  this  court  have  uniformly  supposed  that  the  true  interpre- 
tation of  the  34th  section  limited  its  application  to  State  laws 
strictly  local,  that  is  to  say,  to  the  positive  statutes  of  the  State, 
and  the  construction  thereof  adopted  by  the  local  tribunals,  and  to 
rights  and  titles  to  things  having  a  permanent  locality,  such  as  the 
rights  and  titles  to  real  estate,  and  other  matters  immovable  and 
intraterritorial  in  their  nature  and  character.  It  never  has  been 
supposed  by  us  that  the  section  did  apply,  or  was  designed  to  apply, 
to  questions  of  a  more  general  nature,  not  at  all  dependent  upon  local 
statutes  or  local  usages  of  a  fixed  and  permanent  operation,  as,  for 
example,  to  the  construction  of  ordinary  contracts  or  other  written 
instruments,  and  especially  to  questions  of  general  commercial  law, 


SECT.  III.  a.]  SWIFT   V.   TYSON.  799 

where  the  State  tribunals  are  called  upon  to  perform  the  like  func- 
tions as  ourselves,  that  is,  to  ascertain,  upon  general  reasoning  and 
le^al  analogies,  what  is  the  true  exposition  of  the  contract  or  in- 
strument, or  what  is  the  just  rule  furnished  by  the  principles  of 
commercial  law  to  govern  the  case.  And  we  have  not  now  the  slight- 
est difficulty  in  holding  that  this  section,  upon  its  true  intendment 
and  construction,  is  strictly  limited  to  local  statutes  and  local 
usages  of  the  character  before  stated,  and  does  not  extend  to  con- 
tracts and  other  instruments  of  a  commercial  nature,  the  true  inter- 
pretation and  effect  whereof  are  to  be  sought,  not  in  the  decisions  of 
the  local  tribunals,  but  in  the  general  principles  and  doctrines  of 
commercial  jurisprudence.  Undoubtedly,  the  decisions  of  the  local 
tribunals  upon  such  subjects  are  entitled  to,  and  will  receive,  the 
most  deliberate  attention  and  respect  of  this  court;  but  they  cannot 
furnish  positive  rules,  or  conclusive  authority,  by  which  our  own 
judgments  are  to  be  bound  up  and  governed.  The  law  respecting 
negotiable  instruments  may  be  truly  declared,  in  the  language  of 
Cicero,  adopted  by  Lord  Mansfield  in  Luke  v.  Lyde,  2  Burr.  E..  882, 
887,  to  be  in  a  great  measure,  not  the  law  of  a  single  country  only, 
but  of  the  commercial  world.  "Non  erit  alia  lex  Eomse,  alia 
Athenis,  alia  nunc,  alia  posthac,  sed  et  apud  omnes  gentes,  et  orani 
tempore,  una  eademque  lex  obtinebit." 

It  becomes  necessary  for  us,  therefore,  upon  the  present  occasion, 
to  express  our  own  opinion  of  the  true  result  of  the  commercial  law 
upon  the  question  now  before  us.  And  we  have  no  hesitation  in 
saying,  that  a  pre-existing  debt  does  constitute  a  valuable  considera- 
tion in  the  sense  of  the  general  rule  already  stated,  as  applicable  to 
negotiable  instruments.  Assuming  it  to  be  true  (which,  however, 
may  well  admit  of  some  doubt  from  the  generality  of  the  language), 
that  the  holder  of  a  negotiable  instrument  is  unaffected  with  the 
equities  between  the  antecedent  parties,  of  which  he  has  no  notice, 
only  where  he  receives  it  in  the  usual  course  of  trade  and  business 
for  a  valuable  consideration,  before  it  becomes  due;  we  are  prepared 
to  say,  that  receiving  it  in  payment  of,  or  as  security  for  a  pre- 
existing debt,  is  according  to  the  known  usual  course  of  trade  and 
business.  And  why  upon  principle  should  not  a  pre-existing  debt 
be  deemed  such  a  valuable  consideration  ?  It  is  for  the  benefit  and 
convenience  of  the  commercial  world  to  give  as  wide  an  extent  as 
practicable  to  the  credit  and  circulation  of  negotiable  paper,  that  it 
may  pass  not  only  as  security  for  new  purchases  and  advances,  made 
upon  the  transfer  thereof,  but  also  in  payment  of  and  as  security  for 
pre-existing  debts.  The  creditor  is  thereby  enabled  to  realize  or  to 
secure  his  debt,  and  thus  may  safely  give  a  prolonged  credit,  or  for- 
bear from  taking  any  legal  steps  to  enforce  his  rights.  The  debtor 
also  has  the  advantage  of  making  his  negotiable  securities  of  equiv- 
alent value  to  cash.  But  establish  the  opposite  conclusion,  that 
negotiable  paper  cannot  be  applied  in  payment  of  or  as  security  for 


800  THE    JUDICIAL    DEPARTMENT.  [CHAP.  VI. 

pre-existing  debts,  without  letting  in  all  the  equities  between  the 
original  and  antecedent  parties,  and  the  value  and  circulation  of 
such  securities  must  be  essentially  diminished,  and  the  debtor  driven 
to  the  embarrassment  of  making  a  sale  thereof,  often  at  a  ruinous 
discount,  to  some  third  person,  and  then  by  circuity  to  apply  the 
proceeds  to  the  payment  of  his  debts.  What,  indeed,  upon  such  a 
doctrine,  woiild  become  of  that  large  class  of  cases  where  new  notes 
are  given  by  the  same  or  by  other  parties,  by  way  of  renewal  or 
security  to  banks,  in  lieu  of  old  securities  discounted  by  them, 
whicli  have  arrived  at  maturity  ?  Probably  more  than  one  half  of 
all  bank  transactions  in  our  country,  as  well  as  those  of  other  coun- 
tries, are  of  this  nature.  The  doctrine  would  strike  a  fatal  blow  at 
all  discounts  of  negotiable  securities  for  pre-existing  debts. 

This  question  has  been  several  times  before  this  court,  and  it  has 
been  uniformly  held,  that  it  makes  no  difference  whatsoever  as  to 
the  rights  of  the  holder,  whether  the  debt,  for  which  the  negotiable 
instrument  is  transferred  to  him,  is  a  pre-existing  debt  or  is  con- 
tracted at  the  time  of  the  transfer.  In  each  case,  he  equally  gives 
credit  to  the  instrument.  The  cases  of  Coolidge  v.  Payson,  2  Wheat. 
66,  70,  73,  and  Townsley  v.  Sumrall,  2  Pet.  170,  182,  are  directly 
in  point. 

[English  and  American  cases  are  cited  supporting  the  doctrine  of 
this  court  on  that  question.] 

We  are  all,  therefore,  of  opinion  that  the  question  on  this  point, 
propounded  by  the  Circuit  Court  for  our  consideration,  ought  to  be 
answered  in  the  negative;  and  we  shall  accordingly  direct  it  so  to  be 
certified  to  the  Circuit  Court.  ^ 

^  Mr.  Justice  Catron  declined  to  express  an  opinion  on  the  question,  on  the 
ground  that  it  was  not  presented  in  the  case. 

In  Railroad  Company  v.  National  Bank,  102  U.  S.  14  (1880),  which  was  also  an 
appeal  from  the  Circuit  Court  of  the  United  States  for  the  Southern  District  of  New 
York,  the  same  question  was  under  consideration,  and  Mr.  Justice  Harlan  stated 
the  conclusions  of  the  court  in  part  as  follows,  with  a  quotation  also  from  Swift  v. 
Tyson,  supra,  which  is  approved  :  — 

"  Our  conclusion,  therefore,  is  that  the  transfer,  before  maturity,  of  negotiable 
paper,  as  security  for  an  antecedent  debt  merely,  without  other  circumstances,  if  the 
paper  be  so  indorsed  that  the  holder  becomes  a  party  to  the  instrument,  altliough  the 
transfer  is  without  express  agreement  by  the  creditor  for  indulgence,  is  not  an  im- 
proper use  of  such  paper,  and  is  as  much  in  the  usual  course  of  commercial  business 
ns  its  transfer  in  payment  of  such  debt.  In  either  case,  the  bona  ^fide  holder  is  unaf- 
fected by  equities  or  defences  between  prior  parties,  of  which  he  had  no  notice.  This 
conclusion  is  abundantly  sustained  by  authority.  A  different  determination  by  this 
court  would,  we  apprehend,  greatly  surprise  both  the  legal  profession  and  the  com- 
mercial world.  See  Bigelow's  Bills  and  Notes,  502  et  seq. ;  1  Daniel,  Neg.  Inst. 
(2d  ed.)  c.  25,  sects  820-8-33;  Story,  Promissory  Notes,  sects.  186,  195  (7th  ed),  by 
Thorndyke  ;  1  Parsons,  Notes  and  Bills  (2d  ed.),  218,  sect.  4,  c.  6;  and  Redneld  & 
Bigelow's  Leading  Cases  upon  Bills  of  Exchange  and  Promissory  Notes,  where  the 
authorities  are  cited  by  the  authors. 

"  It  is,  however,  insisted  that,  by  the  course  of  judicial  decision  in  New  York,  nego- 
tiable paper  transferred  merely  as  collateral  security  for  an  antecedent  debt,  is  subject 


SECT.  III.  a.]  PINA    V.   BOWLER.  801 

to  the  equities  of  prior  parties  existing  at  the  time  of  transfer  ;  that  the  bank  being 
located  in  New  York,  and  the  other  parties  being  citizens  of  the  same  State,  and  the 
contract  liaving  been  there  made,  this  court  is  bound  to  accept  and  follow  the  decision 
of  the  State  court,  whether  it  meets  our  approval  or  not.  This  contention  rests  upon 
the  provision  of  the  statute  which  declares  that  '  the  laws  of  the  several  States, 
except  wliere  the  Constitution,  treaties,  or  statutes  of  the  United  States  otherwise 
require  or  provide,  shall  be  regarded  as  rules  of  decision  in  trials  at  common  law,  in 
the  courts  of  the  United  States,  in  cases  where  they  apply.' 

"  It  is  undoubtedly  true  that  if  we  should  apply  to  this  case  the  principles  an- 
nounced in  the  highest  court  of  the  State  of  New  York,  a  different  conclusion  would 
have  been  reached  from  that  already  announced.  That  learned  court  has  held  that 
the  holder  of  negotiable  paper  transferred  merely  as  collateral  security  for  an  ante- 
cedent debt,  nothing  more,  is  not  a  holder  for  value,  within  those  rules  of  commercial 
law  which  protect  such  paper  against  the  equities  of  prior  parties. 

"  The  question  here  presented  is  concluded  by  our  former  decisions. 

"To  this  doctrine,  which  received  the  approval  of  all  the  members  of  this  court 
when  first  announced,  we  have,  as  our  decisions  show,  steadily  adhered.  We  perceive 
no  reason  for  its  modification  in  any  degree  whatever.  We  could  not  infringe  upon 
it,  in  this  case,  without  disturbing  or  endangering  that  stability  which  is  essential  to 
be  maintained  in  the  rules  of  commercial  law.  The  decisions  of  the  New  York  court, 
which  we  are  asked  to  follow  in  determining  tlie  rights  of  parties  under  a  contract 
there  made,  are  not  in  exposition  of  any  legislative  enactment  of  that  State.  They 
express  the  opinion  of  tliat  court,  not  as  to  the  rights  of  parties  under  any  law  local 
to  that  State,  but  as  to  their  rights  under  the  general  commercial  law  existing 
throughout  tlie  Union,  except  where  it  may  have  been  modified  or  changed  by  some 
local  statute.  It  is  a  law  not  peculiar  to  one  State,  or  dependent  upon  local  author- 
ity, but  one  arising  out  of  the  usages  of  the  commercial  world.  Suppose  a  State 
court,  in  a  case  before  it,  should  determine  what  were  the  laws  of  war  as  applicable 
to  that  and  similar  cases.  The  Federal  courts,  sitting  in  that  State,  possessing,  it 
must  be  conceded,  equal  power  with  the  State  court  in  the  determination  of  such 
questions,  must,  upon  the  theory  of  counsel  for  the  plaintiff  in  error,  accept  the  con- 
clusions of  the  State  court  as  the  true  interpretation,  for  that  locality,  of  the  laws  of 
war.  and  as  the  '  law  '  of  the  State  in  the  sense  of  the  statute  which  makes  the  '  laws 
of  the  States  rules  of  decision  in  trials  at  common  law.'  We  apprehend,  however, 
that  no  one  would  go  that  far  in  asserting  the  binding  force  of  State  decisions  upon  the 
courts  of  the  United  States  when  the  latter  are  required,  in  the  discharge  of  their 
judicial  functions,  to  consider  questions  of  general  law,  arising  in  suits  to  which  their 
jurisdiction  extends.  To  so  hold  would  be  to  defeat  one  of  the  objects  for  which 
those  courts  were  established,  and  introduce  infinite  confusion  in  their  decisions  of 
such  questions.     Further  elaboration  would  seem  to  be  unnecessary." 

Mr.  Justice  Miller  and  Mr.  Justice  Field  dissented.  Mr.  Justice  Clifford 
rendered  a  concurring  opinion,  not  differing  from  the  majority  on  the  point  liere 
involved,  and  Mr.  Justice  Bradley  concuiTed  therein. 

In  Pana  r.  Bowler,  107  U.  S.  .529  (1882),  was  involved  the  validity  of  certain 
township  bonds  in  aid  of  a  railroad,  which  the  Supreme  Court  of  Illinois  had  held 
invalid  on  account  of  irregularities  in  the  election  by  which  such  bonds  were  au- 
thorized. Mr.  Jistice  Woods,  rendering  the  decision  of  the  court,  uses  this 
language :  — 

"  It  is  insisted  that  this  court  is  bound  to  follow  this  decision  of  the  Supreme  Court 
of  Illinois  and  hold  the  bonds  in  question  void.  We  do  not  so  understand  our  duty. 
Where  the  construction  of  a  State  constitution  or  law  has  become  settled  by  the 
decision  of  the  State  courts,  the  courts  of  the  United  States  will,  as  a  general  rule, 
accept.it  as  evidence  of  what  the  local  law  is.  Thus,  we  may  be  required  to  yield 
against  our  own  judgment  to  the  proposition  that,  under  the  charter  of  the  railway 
company,  the  election  in  this  case,  which  was  held  under  the  supervision  of  a  moder- 
ator chosen  by  the  electors  present,  was  irregular  and  therefore  void.     But  we  are 

51 


802  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

GELPCKE  V.   CITY   OF   DUBUQUE. 
1  Wallace,  175.     1863. 

[This  action  was  commenced  in  the  Federal  court  for  Iowa  on 
interest  coupons  of  certain  bonds  issued  by  the  city  of  Dubuque  in 
aid  of  the  construction  of  a  certain  railroad.  Judgment  was  entered 
for  the  defendant.  Plaintiff  brings  the  case  to  this  court  on  writ 
of  error.] 

Mb.  Justice  Swatne  delivered  the  opinion  of  the  court. 

The  whole  case  resolves  itself  into  a  question  of  the  power  of  the 
city  to  issue  bonds  for  the  purpose  stated. 

[Provisions  of  the  act  incorporating  the  city  and  an  act  amendatory 
thereto,  by  which  the  city  was  authorized  to  borrow  money  for  a  pub- 
lic purpose  and  also  specifically  to  aid  in  the  construction  of  a  rail- 
road mentioned,  by  issuing  bonds  thereto,  are  set  out  in  the  opinion, 

not  bound  to  accept  the  inference  drawn  by  the  Supreme  Court  of  Illinois,  that  in 
consequence  of  such  irregularity  in  the  election  the  bonds  issued  in  pursuance  of  it  by 
the  officers  of  the  towuship,  which  recite  on  their  face  that  the  election  was  held  in 
accordance  with  the  statute,  are  void  in  the  hands  of  bona  fide  holders.  This  latter 
proposition  is  one  which  falls  among  the  general  principles  and  doctrines  of  commer- 
cial jurisprudence,  upon  which  it  is  our  duty  to  form  an  independent  judgment,  and 
in  respect  of  which  we  are  under  no  obligation  to  follow  implicitly  the  conclusions  of 
any  other  court,  however  learned  or  able  it  may  be.  Swift  v.  Tyson,  16  Pet.  1  ;  Res- 
sell  V.  Southard,  12  How.  139;  Watson  v.  Tarpley,  18  id.  517;  Butz  v.  City  of  Musca- 
tine, 8  Wall.  .573;  Boyce  v.  Tabb,  18  id.  546;  Gates  v.  National  Bank,  100  U.S.  239; 
Railroad  Company  v.  National  Bank,  102  id.  14." 

In  State  Bask  of  Ohio  v.  Knoop,  16  How.  369  (1853),  the  question  was  whether 
provisions  as  to  taxation  in  an  act  providing  for  tlie  incorporation  of  banks  became 
binding  on  the  State  as  a  contract  and  were  irrepealable  as  to  banks  incorporated 
thereunder.  The  decision  of  the  State  Supreme  Court  in  the  case  was  that  the  pro- 
visions in  the  banking  act  did  not  constitute  a  contract,  and  that  a  later  statute  chang- 
ing the  method  and  rate  of  taxation  of  such  banks  was  valid.  On  writ  of  error  to  the 
Supreme  Court  of  the  United  States  it  was  urged  that  the  construction  of  the  State 
statute  by  the  State  Supreme  Court  should  be  followed,  but  Mr.  Justice  McLean, 
delivering  the  opinion  of  the  court,  said:  — 

"  The  rule  observed  by  this  court,  to  follow  the  construction  of  the  statute  of  the 
State  by  its  Supreme  Court,  is  strongly  urged.  This  is  done  when  we  are  required  to 
administer  the  laws  of  the  State.  The  established  construction  of  a  statute  of  the 
State  is  received  .as  a  part  of  the  statute.  But  we  are  called  in  the  case  before  us,  not 
to  carry  into  effect  a  law  of  the  State,  but  to  test  the  validity  of  such  a  law  by  the 
Constitution  of  the  Union.  We  are  exercising  an  appellate  jurisdiction.  Thp  decision 
of  the  Supreme  Court  of  the  State  is  before  us  for  revision,  and  if  their  construction 
of  the  contract  in  question  impairs  its  obligation,  we  are  required  to  reverse  their 
judgment.  To  follow  the  construction  of  a  State  court  in  such  a  case  would  be  to 
surrender  one  of  the  most  important  provisions  in  the  Federal  Constitution. 

"There  is  no  jurisdiction  which  we  are  called  to  exercise,  of  higher  importance, 
nor  one  of  deeper  interest  to  the  people  of  the  States.  It  is,  in  the  emphatic  Lnnguar^e 
of  Chief  Justice  Marshall,  a  bill  of  rights  to  the  people  of  the  States,  incorporated 
into  the  fundamental  law  of  the  Union.  And  whilst  we  have  all  the  respect  for  the 
learning  and  ability  which  the  opinions  of  the  judges  of  the  Supreme  Court  of  the 
State  command,  we  are  called  upon  to  exercise  our  own  judgments  in  the  case." 


SECT.  III.  a.]      GELPCKE  V.    CITY  OF  DUBUQUE.  803 

and  the  question  in  the  case  is  stated  to  be  whether  such  legislation 
is  valid  in  view  of  certain  provisions  in  the  State  constitution.] 
Under  these  provisions  it  is  insisted,  — 

1.  That  the  general  grant  of  power  to  the  legislature  did  not  war- 
rant it  in  conferring  upon  municipal  corporations  the  power  which 
was  exercised  by  the  city  of  Dubuque  in  this  case. 

2.  That  the  seventh  article  of  the  Constitution  prohibits  the  con 
ferring  of  such  power  under  the  circumstances  stated  in  the  answer, 
debts  of  counties  and  cities  being,  within  the  meaning  of  the  Consti- 
tution, debts  of  the  State. 

3.  That  the  eighth  article  forbids  the  conferring  of  such  power 
upon  municipal  corporations  by  special  laws. 

All  these  objections  have  been  fully  considered  and  repeatedly 
overruled  by  the  Supreme  Court  of  Iowa.  Dubuque  Co.  v.  The  Du- 
buque &  Pacific  R.  R.  Co.,  4  Greene,  1;  The  State  v.  Bissel,  4  id. 
328 ;  Clapp  v.  Cedar  Co.,  5  Iowa,  15 ;  Ring  v.  County  of  Johnson, 
6  id.  265 ;  McMillen  v.  Boyles,  6  id.  304 ;  McMillen  v.  The  County 
Judge  of  Lee  Co.,  6  id.  393;  Games  v.  Robb,  8  id.  193;  State  v. 
The  Board  of  Equalization  of  the  County  of  Johnson,  10  id.  157.  The 
earHest  of  these  cases  was  decided  in  1853,  the  latest  in  1859. 
The  bonds  were  issued  and  put  upon  the  market  between  the  periods 
named.  These  adjudications  cover  the  entire  ground  of  this  con- 
troversy. They  exhaust  the  argument  upon  the  subject.  We  could 
add  nothing  to  what  they  contain.  We  shall  be  governed  by  them, 
unless  there  be  something  which  takes  the  case  out  of  the  established 
rule  of  this  court  upon  that  subject. 

It  is  urged  that  all  these  decisions  have  been  overruled  by  the 
Supreme  Court  of  the  State,  in  the  later  case  of  the  State  of  Iowa, 
ex  relatiojie,  v.  The  County  of  Wapello,  13  Iowa,  390,  and  it  is  insisted 
that  in  cases  involving  the  construction  of  a  State  law  or  constitution, 
this  court  is  bound  to  follow  the  latest  adjudication  of  the  highest 
court  of  the  State.  Leffingwell  v.  Warren,  2  Black,  599,  is  relied 
upon  as  authority  for  the  proposition.  In  that  case  this  court  said  it 
would  follow  *'  the  latest  settled  adjudications."  Whether  the  judg- 
ment in  question  can,  under  the  circumstances,  be  deemed  to  come 
within  that  category,  it  is  not  now  necessary  to  determine.  It  can- 
not be  expected  that  this  court  will  follow  every  such  oscillation, 
from  whatever  cause  arising,  that  may  possibly  occur.  The  earlier 
decisions,  we  think,  are  sustained  by  reason  and  authority.  They  are 
in  harmony  with  the  adjudications  of  sixteen  States  of  the  Union. 
Many  of  the  cases  in  the  other  States  are  marked  by  the  profoundest 
legal  ability. 

The  late  case  in  Iowa,  and  two  other  cases  of  a  kindred  character 
in  another  State,  also  overruling  earlier  adjudications,  stand  out,  as 
far  as  we  are  advised,  in  unenviable  solitude  and  notoriety.  However 
we  may  regard  the  late  case  in  Iowa  as  affecting  the  future,  it  can 
have  no  effect  upon  the  past.     "  The  sound  and  true  rule  is,  that  if 


804  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

the  contract,  when  made,  was  valid  by  the  laws  of  the  State  as 
then  expounded  by  all  departments  of  the  government,  and  admin- 
istered in  its  courts  of  justice,  its  validity  and  obligation  cannot  be 
impaired  by  any  subsequent  action  of  legislation,  or  decision  of  its 
courts  altering  the  construction  of  the  law."  The  Ohio  Life  &  Trust 
Co.  V.  Debolt,  16  How.  432. 

The  same  principle  applies  where  there  is  a  change  of  judicial 
decision  as  to  the  constitutional  power  of  the  legislature  to  enact  the 
law.  To  this  rule,  thus  enlarged,  we  adhere.  It  is  the  law  of  this 
court.  It  rests  upon  the  plainest  principles  of  justice.  To  hold 
otherwise  would  be  as  unjust  as  to  hold  that  rights  acquired  under 
a  statute  may  be  lost  by  its  repeal.     The  rule  embraces  this  case. 

Bonds  and  coupons  like  these,  by  universal  commercial  usage  and 
consent,  have  all  the  qualities  of  commercial  paper.  If  the  plaintiffs 
recover  in  this  case,  the}-  will  be  entitled  to  the  amount  specified  in 
the  coupons,  with  interest  and  exchange  as  claimed.  White  v.  The 
V.  &  M.  R.  R.  Co.,  21  How.  575 ;  Commissioners  of  the  County  of 
Knox  V.  Aspinwall  et  al.,  21  id.  539. 

We  are  not  unmindful  of  the  importance  of  uniformity  in  the  de- 
cisions of  this  court,  and  those  of  the  highest  local  courts,  giving 
constructions  to  the  laws  and  constitutions  of  their  own  States.  It 
is  the  settled  rule  of  this  court  in  such  cases  to  follow  the  decisions 
of  the  State  courts.  But  there  have  been  heretofore,  in  the  judicial 
history  of  this  court,  as  doubtless  there  will  be  hereafter,  many  ex- 
ceptional cases.  We  shall  never  immolate  truth,  justice,  and  the 
law,  because  a  State  tribunal  has  erected  the  altar  and  decreed  the 
sacrifice. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
further  proceedings  in  conformity  to  this  opinion.^ 

1  Mr.  Justice  Miller  delivered  a  dissenting  opinion,  in  which  this  language  is 
used :  — 

"  The  general  principle  is  not  controverted  hy  the  majority,  that  to  the  highest 
courts  of  the  State  belongs  the  right  to  construe  its  statutes  and  its  constitution, 
except  where  they  may  conflict  with  the  Constitution  of  the  United  States,  or  some 
statute  or  treaty  made  under  it.  Nor  is  it  denied  that  when  such  a  construction  has 
been  given  by  the  State  court,  that  this  court  is  bound  to  follow  it.  The  cases  on  this 
subject  are  numerous,  and  the  principle  is  as  well  settled,  and  is  as  necessary  to  the 
harmonious  working  of  our  complex  system  of  government,  as  the  correlative  propo- 
sition that  to  this  court  belongs  the  right  to  expound  conclusively,  for  all  other  courts, 
the  Constitution  and  laws  of  the  Federal  government.  See  Shelby  v.  Guy,  11  "Wheat. 
361;  McCluny  w.  Silliman,  3  Pet.  277 ;  Van  Rensselaer  v.  Kearney,  11  How.  297 ; 
Webster  v.  Cooper,  U  id.  504;  Elmeudorf  v.  Taylor,  10  Wheat.  152;  The  Bank  v. 
Dudley,  2  Pet.  492. 

"  But  while  admitting  the  general  principle  thus  laid  down,  the  court  says  it  is  in- 
applicable to  the  present  case,  because  there  have  been  conflicting  decisions  on  this 
very  point  by  the  Supreme  Court  of  Iowa,  and  that  as  the  bonds  issued  while  the 
decisions  of  that  court  holding  such  instruments  to  be  constitutional  were  unreversed, 
that  this  con.strnction  of  the  Constitution  must  now  govern  this  court  instead  of  the 
later  one.  The  moral  force  of  this  proposition  is  unquestionably  very  great.  And  I 
think,  taken  in  counection  with  some  fancied  duty  of  this  court  to  enforce  contracts. 


I 


SECT.  III.  a.]  BURGESS   V.    SELIGMAN.  80n 

BURGESS   V.   SELIGMAN. 

107  United  States,  20.     1883. 

Mb.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  is  an  action  brought  [in  the  Circuit  Court  of  the  United 
States  for  the  Eastern  District  of  Missouri]  by  the  plaintiff,  Burgess, 
against  J.  &  W.  Seiigraan  &  Co.,  as  stockholders  of  the  Memphis, 
Carthage,  and  Northwestern  Railroad  Company,  under  a  statute  of 
the  State  of  Missouri  to  recover  a  debt  due  to  him  by  the  company. 
The  plaintiff,  in  his  petition,  alleges  that  on  the  5th  of  November, 
1874,  judgment  was  rendered  in  his  favor  against  the  corporation 
by  the  District  Court  of  Cherokee  County,  Kansas,  for  S73,G61, 
which  remains  unsatisfied;  that  in  December,  1874,  the  corporation 
was  dissolved  ;  and  that  the  defendants  at  the  date  of  the  dissolution 
and  of  the  judgment,  were,  and  still  are,  stockholders  of  the  corpora- 
tion to  the  amount  of  $6,000,000,  on  which  there  is  due  an  unpaid 
$1,000,000 ;  and  he  demands  judgment  for  the  amount  of  his  debt. 
Joseph  Seligman,  the  principal  defendant,  answered,  denying  that 
the  defendants  were  ever  stockholders,  or  subscribers  to  the  stock, 
of  the  corporation,  and  setting  forth  certain  facts  and  circumstances 
(stated  in  the  findings)  under  which  the  stock  alleged  to  be  theirs 
was  merely  deposited  in  their  hands  by  the  corporation  in  trust  for  a 

over  and  beyond  that  appertaining  to  other  courts,  has  given  the  majority  a  leaning 
towards  the  adoption  of  a  rule,  which  in  my  opinion  cannot  be  sustained  either  on 
principle  or  authority. 

"  Tlie  only  special  charge  which  this  court  has  over  contracts,  beyond  any  other 
court,  is  to  declare  judicially  whether  the  statute  of  a  State  impairs  their  obligation. 
No  such  question  arises  here,  for  the  plaintiff  claims  under  and  by  virtue  of  the  statute 
which  is  here  the  subject  of  discussion.  Neither  is  there  any  question  of  the  obligation 
of  contracts,  or  the  right  to  enforce  them.  The  question  goes  behind  that.  We  are 
called  upon,  not  to  construe  a  contract,  nor  to  determine  how  one  shall  be  enforced, 
but  to  decide  whether  there  ever  was  a  contract  made  in  the  case.  To  assume  that 
there  was  a  contract,  which  contract  is  about  to  be  violated  by  the  decisions  of  the 
State  court  of  Iowa,  is  to  beg  the  very  question  in  dispute.  In  deciding  tliis  question 
the  court  is  called  upon,  as  the  court  in  Iowa  was,  to  construe  the  constitution  of  the 
State.  It  is  a  grave  error  to  suppose  that  this  court  must,  or  should,  determine  this 
upon  any  principle  which  would  not  be  equally  binding  on  the  courts  of  Iowa,  or  that 
the  decision  should  depend  upon  the  fact  that  certain  parties  had  purchased  bonds 
which  were  supposed  to  l)e  valid  contracts,  when  they  really  were  not. 

"  The  Supreme  Court  of  Iowa  is  not  the  tirst  or  the  only  court  which  has  changed 
its  rulings  on  questions  as  important  as  the  one  now  presented.  I  understand  the  doc- 
trine to  be  in  such  cases,  not  that  the  law  is  changed,  but  tiiat  it  was  always  the  same 
as  expounded  by  the  latter  decision,  and  that  the  former  decision  was  not,  and  never 
had  been,  the  law,  and  is  overruled  for  that  very  reason.  The  decision  of  this  court 
contravenes  this  principle,  and  holds  that  the  decision  of  the  court  makes  the  law,  and, 
in  fact,  that  the  same  statute  or  constitution  means  one  thing  in  1853,  and  another 
thing  in  18.59.  For  it  is  impliedly  conceded,  that  if  these  bonds  had  been  i.ssued  since 
the  more  recent  decision  of  the  Iowa  court,  this  court  would  not  hold  them  valid." 


806  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

temporary  purpose  by  way  of  collateral  security,  to  be  returned  wheu 
that  purpose  was  accomplished. 

The  cause  was  tried  by  the  court,  and  judgment  was  rendered  for 
the  defendants  on  certain  findings  of  fact ;  and  the  question  here  is, 
whether  the  facts  as  found  are  sufficient  to  support  the  judgment. 

[It  appears  that  defendants  received  from  the  railroad  company 
the  stock  in  question  to  be  held  in  trust  as  collateral  security  for 
themselves  and  holders  of  bonds,  and  voted  at  stockholders'  meetings 
as  owners  of  such  stock.  The  court  below  held  that  defendants  did 
not  thereby  become  liable  to  creditors  of  the  company  under  a  State 
statute  rendering  stockholders  liable  for  the  debts  of  the  company 
after  its  property  was  exhausted,  but  that  they  were  within  an  excej> 
tion  of  the  statute  exempting  from  such  liability  those  holding  stock  as 
trustees  or  by  way  of  collateral  security.  Authorities  supporting  the 
ruling  of  the  lower  court  are  cited,  and  the  court  continues  :  — ] 

But  the  appellant's  counsel,  with  much  confidence,  press  upon  our 
attention  the  decisions  of  the  Supreme  Court  of  Missouri  on  the 
questions  involved  in  this  case,  and  on  the  very  transactions  which  we 
are  considering.  That  court,  since  the  determination  of  this  case  by 
the  Circuit  Court,  has  given  judgment  in  two  cases  adversely  to  the 
judgment  in  this,  and  to  the  views  above  expressed.  The  first  case 
was  that  of  Griswold  v.  Seligman,  decided  in  November,  1880  ;  the 
other,  that  of  Fisher  v.  Seligman,  decided  in  February,  1882,  in  which 
the  former  case  was  substantially  followed  and  confirmed.  The  case 
of  Griswold  v.  Seligman  seems  to  have  been  very  fully  and  carefully 
considered.  We  have  read  the  opinion  of  the  court  and  the  dissenting 
opinion  of  one  of  tlie  judges  with  much  attention,  but  we  are  unable 
to  come  to  the  conclusion  reached  by  the  majority. 

We  do  not  consider  ourselves  bound  to  follow  the  decisions  of  the 
State  court  in  this  ease.  When  the  transactions  in  controversy  oc- 
curred, and  when  the  case  was  under  the  consideration  of  the  Circuit 
Court,  no  construction  of  the  statute  had  been  given  by  the  State 
tribunals  contrary  to  that  given  by  the  Circuit  Court.  The  Federal 
courts  have  an  independent  jurisdiction  in  the  administration  of  State 
laws,  co-ordinate  with,  and  not  subordinate  to,  that  of  the  State 
courts,  and  are  bound  to  exercise  their  own  judgment  as  to  the 
meaning  and  effect  of  those  laws.  The  existence  of  two  co-ordinate 
jurisdictions  in  the  same  territory  is  peculiar,  and  the  results  would 
be  anomalous  and  inconvenient  but  for  the  exercise  of  mutual  respect 
and  deference.  Since  the  ordinary  administration  of  the  law  is  car- 
ried on  by  the  State  courts,  it  necessarily  happens  that  by  the  course 
of  their  decisions  certain  rules  are  established  which  become  rules  of 
property  and  action  in  the  State,  and  have  all  the  effect  of  law,  and 
which  it  would  be  wrong  to  disturb.  This  is  especially  true  with 
regard  to  the  law  of  real  estate  and  the  construction  of  State  consti- 
tutions and  statutes.  Such  established  rules  are  always  regarded  by 
the  Federal  courts,  no  less  than  by  the  State  courts  themselves,  as 


I 


i 


SECT.  III.  a.]  BURGESS   V.   SELIGMAN.  807 

antlioritative  declarations  of  what  the  law  is.  But  where  the  law 
has  not  been  thus  settled,  it  is  the  right  and  duty  of  the  Federal 
courts  to  exercise  their  own  judgment;  as  they  also  always  do  in 
reference  to  the  doctrines  of  commercial  law  and  general  jurispru- 
dence. So  when  contracts  and  transactions  have  been  entered  into, 
and  rights  have  accrued  thereon  under  a  particular  state  of  the 
decisions,  or  when  there  has  been  no  decision,  of  the  State  tribunals, 
the  Federal  courts  properly  claim  the  right  to  adopt  their  own  inter- 
pretation of  the  law  applicable  to  the  case,  although  a  different  inter- 
pretation may  be  adopted  by  the  State  courts  after  such  rights  have 
accrued.  But  even  in  such  cases,  for  the  sake  of  harmony  and  to 
avoid  confusion,  the  Federal  courts  will  lean  towards  an  agreement 
of  views  with  the  State  courts,  if  the  question  seems  to  them  balanced 
with  doubt.  Acting  on  these  principles,  founded  as  they  are  on 
comity  and  good  sense,  the  courts  of  the  United  States,  without  sac- 
rificing their  own  dignity  as  independent  tribunals,  endeavor  to  avoid, 
and  in  most  cases  do  avoid,  any  unseemly  conflict  with  the  well-con- 
sidered decisions  of  the  State  courts.  As,  however,  the  very  object 
of  giving  to  the  national  courts  jurisdiction  to  administer  the  laws 
of  the  States  in  controversies  between  citizens  of  different  States 
was  to  institute  independent  tribunals  which  it  might  be  supposed 
would  be  unaffected  by  local  prejudices  and  sectional  views,  it 
would  be  a  dereliction  of  their  duty  not  to  exercise  an  independent 
judgment  in  cases  not  foreclosed  by  previous  adjudication.  As  this 
matter  has  received  our  special  consideration,  we  have  endeavored 
thus  briefly  to  state  our  views  with  distinctness,  in  order  to  obviate 
any  misapprehensions  that  may  arise  from  language  and  expressions 
used  in  previous  decisions. 

In  the  present  case,  as  already  observed,  when  the  transactions  in 
question  took  place,  and  when  the  decision  of  the  Circuit  Court  was 
rendered,  not  only  was  there  no  settled  construction  of  the  statute  on 
the  point  under  consideration,  but  the  Missouri  cases  referred  to  arose 
upon  the  identical  transactions  which  the  Circuit  Court  was  called 
upon,  and  which  we  are  now  called  upon,  to  consider.  It  can  hardly 
be  contended  that  the  Federal  court  was  to  wait  for  the  State  courts 
to  decide  the  merits  of  the  controversy  and  then  simply  register  their 
decision;  or  that  the  judgment  of  the  Circuit  Court  should  be  re- 
versed merely  because  the  State  court  has  since  adopted  a  different 
view.  If  we  could  see  fair  and  reasonable  ground  to  acquiesce  in 
tliat  view,  we  should  gladly  do  so ;  but  in  the  exercise  of  that  inde- 
pendent judgment  which  it  is  our  duty  to  apply  to  the  case,  we  are 
forced  to  a  different  conclusion.  The  cases  of  Pease  v.  Peck,  18  How. 
595,  and  Morgan  v.  Curtenius,  20  id.  1,  in  which  the  opinions  of  the 
court  were  delivered  by  Mr.  Justice  Grier,  are  precisely  in  point. 

[The  general  law  on  the  questions  whether  defendants  were 
estopped  by  voting  the  stock,  and  whether  one  who  received  stock 


808  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TI. 

directly  from  the  company  could  be  within  the  exception  of  the  State 
statute  as  to  trustees  and  holders  for  collateral  security,  is  discussed 
and  the  judgment  of  the  lower  court  affirmed.] 


BUCHER  V.  CHESHIRE   RAILROAD   COMPANY. 

125  United  States,  555.     1888. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States 
for  the  District  of  Massachusetts. 

The  plaintiff  in  error  was  plaintiff  in  that  court,  and  sought  to 
recover  of  the  defendants  for  injuries  which  he  sustained  by  reason 
of  their  negligence  while  travelling  upon  their  roads.  The  court  on 
the  trial  substantially  instructed  the  jury  that  the  plaintiff  could  not 
recover  because  the  injury  complained  of  occurred  while  he  was 
travelling  upon  the  Sabbath  day,  in  violation  of  the  law  of  the  State 
of  Massachusetts. 

[After  disposing  of  another  question,  the  Court  considers  the 
question  whether  the  fact  of  travelling  on  the  Lord's  Day  in  viola- 
tion of  statute  should  preclude  plaintiff  from  recovering.] 

The  language  of  the  court  in  Stanton  v.  Metropolitan  Railroad  Co. 
[14  Allen,  485]  is  that  "  because  the  plaintiff  was  engaged  in  the 
violation  of  law,  without  which  he  would  not  have  received  the  in- 
jury sued  for,  he  cannot  obtain  redress  in  a  court  of  justice."  This 
principle  would  seem  to  be  as  applicable  to  a  man  engaged  in  any 
other  transaction  forbidden  by  law  as  to  that  of  violating  the  Sab- 
bath. Whether  the  doctrine  thus  laid  down  is  a  sound  one,  and 
whether,  if  it  be  not  sound,  as  it  commends  itself  to  our  judgment, 
we  should  follow  it  as  being  supported  by  the  decisions  of  the 
Supreme  Court  of  Massachusetts  in  numerous  instances,  presents  in 
this  case  the  only  serious  question  for  our  consideration.  Hamilton 
V.  City  of  Boston,  14  Allen,  475  ;  Bosworth  v.  Swansey,  10  Met  363; 
Jones  V.  Andover,  10  Allen,  18 ;  Day  v.  Highland  Street  Railway 
Co.,  135  Mass.  113 ;  Read  v.  Boston  &  Albany  Railroad  Co.,  140 
Mass.  199. 

If  the  proposition,  as  established  by  the  repeated  decisions  of  the 
highest  court  of  that  State,  were  one  which  we  ourselves  believed  to 
be  a  sound  one,  there  would  be  no  difficulty  in  agreeing  with  that 
court,  and,  consequently,  affirming  the  ruling  of  the  Circuit  Court, 
in  the  present  case.  But  without  entering  into  the  argument  of  that 
subject,  we  are  bound  to  say  that  we  do  not  feel  satisfied,  that,  upon 
any  general  principles  of  law  by  which  the  courts  that  have  adopted 
the  common-law  system  are  governed,  this  is  a  true  exposition  of 
that  law. 


SECT.  III.  n.J  BUCHER   V.    CHESHIRE   RAILROAD    CO.  809 

On  the  contrary,  in  the  case  of  Phila.,  Wilmington,  &  Bait.  Rail- 
road v.  Steam  Towboat  Co.,  23  How.  209,  this  court  had  under  con- 
sideration the  same  question.  It  arose  in  regard  to  the  effect  of  a 
statute  of  Maryland  forbidding  persons  "to  work  or  do  any  bodily 
labor,  or  willingly  suffer  any  of  their  servants  to  do  any  manner  of 
labor  on  the  Lord's  Day,  works  of  charity  or  necessity  excepted," 
and  prescribing  a  penalty  for  a  breach  thereof.  It  was  held  by  this 
court  that  where  a  vessel  was  prosecuting  her  voyage  on  Sunday, 
and  was  injured  by  piles  negligently  left  in  the  river,  this  statute 
making  travelling  on  Sunday  an  offence  and  punishing  it  by  a 
penalty,  constituted  no  defence  to  an  action  for  damages  by  the 
vessel.  A  number  of  cases  were  cited  sustaining  that  view  of  the 
subject,  and  the  court,  through  Mr.  Justice  Grier,  used  this  lan- 
guage :  "  We  do  not  feel  justified,  therefore,  on  any  principles  of 
justice,  equity,  or  of  public  policy,  in  inflicting  an  additional  penalty 
of  seven  thousand  dollars  on  the  libellants,  by  way  of  set  off,  because 
their  servants  may  have  been  subject  to  a  penalty  of  twenty  shil- 
lings each  for  the  breach  of  the  statute." 

In  that  case,  however,  there  had  been  no  decision  of  the  courts  of 
Maryland,  holding  that  a  violation  of  the  Sabbath  would  constitute 
a  defence  to  the  action  against  the  company  which  had  left  the  piles 
in  the  river.  In  this  view  of  the  matter  it  is  not  unworthy  of  con- 
sideration that,  shortly  after  the  injury  in  the  present  case  was  in- 
flicted, the  General  Court  of  Massachusetts  passed  a  statute,  to  which 
we  have  already  referred,  declaring  that  travelling  on  the  Lord's 
Day  should  not  "  constitute  a  defence  to  an  action  against  a  common 
carrier  of  passengers  for  any  tort  or  injury  suffered  by  a  person  so 
travelling." 

The  question  then  arises,  how  far  is  this  court  bound  to  follow  the 
decisions  of  the  Massachusetts  Supreme  Court  on  that  subject  ? 

The  Congress  of  the  United  States,  in  the  act  by  which  the  Federal 
courts  were  organized,  enacted  that  "  the  laws  of  the  several  States, 
except  where  the  Constitution,  treaties,  or  statutes  of  the  United 
States  otherwise  require  or  provide,  shall  be  regarded  as  rules  of 
decision  in  trials  at  common  law,  in  the  courts  of  the  United  States, 
in  cases  where  they  apply."  Rev.  Stat.  §  721 ;  Judiciary  Act,  c.  20, 
§  34,  1  Stat.  92.  Tliis  statute  has  been  often  the  subject  of  construc- 
tion in  this  court,  and  its  opinions  have  not  always  been  expressed 
in  language  that  is  entirely  harmonious.  What  are  the  laws  of  the 
several  States  which  are  to  be  regarded  "  as  rules  of  decision  in  trials 
at  common  law  "  is  a  subject  which  has  not  been  ascertained  and 
defined  with  that  uniformity  and  precision  desirable  in  a  matter  of 
such  great  importance. 

The  language  of  the  statute  limits  its  ap})lication  to  cases  of  trials 
at  common  law.  There  is,  therefore,  nothing  in  the  section  which 
requires  it  to  be  applied  to  proceedings  in  equity,  or  in  admiralty; 
nor  is  it  applicable  to  criminal  offences  against  the  United  States 


810  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

(see  United  States  v.  lleiJ,  12  How.  361),  or  where  the  Constitution, 
treaties,  or  statutes  of  the  United  States  require  other  rules  of  deci- 
sion. But  with  these,  and  some  other  exceptions  which  will  be  re- 
ferred to  presently,  it  must  be  admitted  that  it  does  provide  that  the 
laics  of  the  several  States  shall  be  received  in  the  courts  of  the 
United  States,  iu  cases  where  they  apply,  as  the  rules  of  decision  in 
trials  at  common  law. 

It  has  been  held  by  this  court  that  the  decisions  of  the  highest 
court  of  tlie  State  in  regard  to  the  validity  or  meaning  of  the  constitu- 
tion of  that  State,  or  its  statutes,  are  to  be  considered  as  the  law  of 
that  State,  within  the  requirement  of  this  section.  In  Leffingwell  v. 
Warren,  2  Black,  599,  this  court  said,  in  regard  to  the  statutes  of 
limitations  of  a  State :  "  The  construction  given  to  a  statute  of  a 
State  by  the  highest  tribunal  of  such  State  is  regarded  as  a  part  of 
the  statute,  and  is  as  binding  upon  the  courts  of  the  United  States  as 
the  text." 

In  the  case  of  Luther  v.  Borden,  7  How.  1,  40,  Chief  Justice  Taney 
said:  "The  point  then  raised  here  has  been  already  decided  by  the 
courts  of  Rhode  Island.  The  question  relates  altogether  to  the  con- 
stitution and  laws  of  that  State  ;  and  the  well-settled  rule  in  this 
court  is,  that  the  courts  of  the  United  States  adopt  and  follow  the 
decisions  of  the  State  courts  in  questions  which  concern  merely  the 
constitution  and  laws  of  the  State."  See  also  Post  v.  Supervisors, 
105  U.  S.  667. 

It  is  also  well  settled  that  where  a  course  of  decisions,  whether 
founded  upon  statutes  or  not,  have  become  rules  of  property  as  laid 
down  by  the  highest  courts  of  the  State,  by  which  is  meant  those 
rules  governing  the  descent,  transfer,  or  sale  of  property,  and  the 
rules  which  affect  the  title  and  possession  thereto,  they  are  to  be 
treated  as  laws  of  that  State  to  the  Federal  courts. 

The  principle  also  applies  to  the  rules  of  evidence.  In  Ex  parte 
risk,  113  U.  S.  713,  720,  the  court  said  :  "'  It  has  been  often  decided 
iu  this  court  that  in  actions  at  law  in  the  courts  of  the  United  States 
the  rules  of  evidence  and  the  law  of  evidence  generally  of  the  State 
prevail  in  those  courts."  See  also  Wilcox  v.  Hunt,  13  Pet.  378  ; 
Evan  V.  Bindley,  1  Wall.  66. 

There  are  undoubtedly  exceptions  to  the  principle  that  the  deci- 
sions of  the  State  courts,  as  to  what  are  the  laws  of  that  State,  are 
in  all  cases  binding  upon  the  Fedei-al  courts.  The  case  of  Swift  v. 
Tyson,  16  Pet.  1,  which  has  been  often  followed,  established  the 
principle  that  if  this  court  took  a  different  view  of  what  the  law  was 
in  certain  classes  of  cases  which  ought  to  be  governed  by  the  general 
principles  of  commercial  law,  from  the  State  court,  it  was  not  bound 
to  follow  the  latter.  There  is,  therefore,  a  large  field  of  jurispru- 
dence left  in  which  the  question  of  how  far  the  decisions  of  State 
courts  constitute  the  law  of  those  States  is  an  embarrassing  one. 

There  is  no  common  law  of  the  United  States,  and  yet  the  main 


SECT.  III.  a.]  BUCHER    V.    CHESHIRE   RAILROAD   CO.  811 

body  of  the  rights  of  the  people  of  this  country  rest  upon  and  are 
governed  by  principles  derived  from  the  connnon  law  of  England, 
and  established  as  the  laws  of  the  different  States.  Each  State 
of  the  Union  may  have  its  local  usages,  customs,  and  common  law. 
Wheaton  v.  Peters,  8  Pet.  591 ;  Pennsylvania  v.  Wheeling,  &c.,  Bridge 
Co.,  13  How.  518. 

When,  therefore,  in  an  ordinary  trial  in  an  action  at  law  we  speak 
of  the  common  law  we  refer  to  the  law  of  the  State  as  it  has  been 
adopted  by  statute  or  recognized  by  the  courts  as  the  foundation  of 
legal  rights.  It  is  in  regard  to  decisions  made  by  the  State  courts  in 
reference  to  this  law,  and  defining  what  is  the  law  of  the  State  as 
moditied  by  the  opinions  of  its  own  courts,  by  the  statutes  of  the 
State,  and  the  customs  and  habits  of  the  people,  that  the  trouble 
arises. 

It  may  be  said  generally  that  wherever  the  decisions  of  the  State 
courts  relate  to  some  law  of  a  local  character,  which  may  have 
become  established  by  those  courts,  or  has  always  been  a  part  of 
the  law  of  the  State,  that  the  decisions  upon  the  subject  are  usually 
conclusive,  and  always  entitled  to  the  highest  respect  of  the  Federal 
courts.  The  whole  of  this  subject  has  recently  been  very  ably  re- 
viewed in  the  case  of  Burgess  v.  Seligman,  107  U.  S.  20  [805]. 
Where  such  local  law  or  custom  has  been  established  by  repeated 
decisions  of  the  highest  courts  of  a  State,  it  becomes  also  the  law 
governing  the  courts  of  the  United  States  sitting  in  that  State. 

We  are  of  opinion  that  the  adjudications  of  the  Supreme  Court  of 
Massachusetts,  holding  that  a  person  engaged  in  travel  on  the  Sab- 
bath day,  contrary  to  the  statute  of  the  State,  being  thus  in  the  act 
of  violating  a  criminal  law  of  the  State,  shall  not  recover  against  a 
corporation  upon  whose  road  he  travels  for  the  negligence  of  its 
servants,  thereby  establish  this  principle  as  a  local  law  of  that 
State,  declaring,  as  they  do,  the  effect  of  its  statute  in  its  operation 
upon  the  obligation  of  the  carrier  of  passengers.  The  decisions  on 
this  subject  by  the  Massachusetts  court  are  numerous  enough  and 
of  sufficiently  long  standing  to  establish  the  rule,  so  far  as  they  can 
establish  it,  and  we  think  that,  taken  in  connection  with  the  relation 
which  they  bear  to  the  statute  itself,  though  giving  an  effect  to  it 
which  may  not  meet  the  approval  of  this  court,  they  nevertheless 
determine  the  law  of  IMassachusetts  on  that  subject.^ 

1  In  Chicago  Union  Bank  v.  Kansas  City  Bank,  136  U.  S.  22.",  (1890),  which 
involved  the  question  .is  to  the  validity  of  a  deed  of  trust  of  all  the  debtor's  property 
under  tlie  assiguiiient  laws  of  Missouri,  it  was  found  that  under  the  decisions  of  tlie 
Supreme  Court  of  the  State  the  instrument  would  be  valid,  while  in  the  Circuit 
Courts  of  the  United  States  for  Missouri  similar  instruments  had  been  held  void. 
The  court  thereupon  followed  the  rule  of  decision  of  the  State  courts,  using  this 
languajre :  — 

"  The  question  of  the  construction  and  effect  of  a  statute  of  a  State,  regulating  as- 
signments for  the  benefit  of  creditors,  is  a  (jucstion  upon  which  the  decisions  of  the 
highest  court  of  the  State,  establishing  a  rule  of  property,  are  of  controlling  authority 


812  THE   JUDICIAL   DEPARTMENT.  [CHAP.  VI. 

b.  Common  Law  in  Federal  Jurisprudence. 

SMITH   V.   ALABAMA. 
124  United  States,  465.     1888. 

[Plaintiff  in  error  was  arrested  for  violation  of  a  statute  of 
Alabama  making  it  criminal  for  an  engineer  to  operate  a  railroad 
engine  without  a  license,  which  could  be  obtained  by  examination 
before  a  State  board.  He  claimed  that  he  was  engaged  only  in 
operating  a  train  from  a  point  in  Alabama  to  a  point  in  Mississippi, 
and  that  as  to  him  the  State  statute  was  invalid  as  a  regulation  of 
interstate  commerce,  and  sought  release  from  imprisonment  under 
the  charge  by  writ  of  error  in  the  State  courts;  and  the  writ  being 
refused,  appealed  to  this  court.  The  court  held  that  the  matter, 
although  affecting  interstate  commerce,  was  within  the  regulation 
of  the  States,  unless  such  regulation  contravenes  some  Federal  law 
on  the  subject;  and  that  the  general  rights  and  duties  of  persons 
within  the  State  are  to  be  determined  by  the  common  and  statutory 
law  of  the  State.  On  this  question  the  following  language  is 
used :  — ] 

Mb.  Justice  Matthews  delivered  the  opinion  of  the  court. 

It  is  that  law  which  defines  who  are  or  may  be  common  carriers, 
and  prescribes  the  means  they  shall  adopt  for  the  safety  of  that 
which  is  committed  to  their  charge,  and  the  rules  according  to  which, 
under  varying  conditions,  their  conduct  shall  be  measured  and 
judged;  which  declares  that  the  common  carreir  owes  the  duty  of 
care,  and  what  shall  constitute  that  negligence  for  which  he  shall  be 
responsible. 

in  the  courts  of  the  United  States.  Brashear  i'.  West,  7  Pet.  608,  615  ;  Allen  r.  Massey, 
17  Wall.  351  ;  Lloyd  v.  Fulton,  91  U.  S.  479,  485;  Sumner  v.  Hicks,  2  Black,  532, 
534;  Jaffray  i-.  McGehee,  107  U.  S.  361,365;  Peters  v.  Bain,  133  U.  S.  670,686; 
Randolph's  Executor  v.  Quidnick  Co.,  135  U.  S.  457.  The  decision  in  White  v. 
Cotzhansen,  129  U.  S.  329,  construing  a  similar  statute  of  Illinois  in  accordance  with 
the  decisions  of  the  Supreme  Court  of  that  State  as  understood  by  this  court,  has 
therefore  no  hearing  upon  the  case  at  bar.  The  fact  that  similar  statutes  are  allowed 
different  effects  in  different  States  is  immaterial.  As  observed  by  Mr.  Justice  Field, 
speaking  for  tliis  court,  '  The  interpretation  within  the  jurisdiction  of  one  State 
becomes  a  part  of  the  law  of  that  State,  as  much  so  as  if  incorporated  into  the  body 
of  it  by  t!ie  legislature.  If,  therefore,  different  interpretations  are  given  in  different 
States  to  a  similar  local  law,  that  law  in  effect  becomes  by  the  interpretations,  so  far 
as  it  is  a  rule  for  our  action,  a  different  law  in  one  State  from  what  it  is  in  the  other.' 
Chri.sty  ;;.  Pridgeon.  4  Wall.  196,  203.     See  also  Detroit  v.  Osborne,  135  U.  S.  492." 

This  last  case  is  followed  in  Etheridge  v.  Sperrt,  139  U.  S.  266  (1891),  with 
reference  to  the  validity  of  a  chattel  mortgage  authorizing  mortgagee  to  retain  pos- 
session and  sell,  tlie  decisions  of  Iowa,  where  the  case  arose,  being  followed  rather  than 
certain  decisions  of  the  Supreme  Court  of  the  United  States  on  that  subject. 


SECT.  III.  b.]  SMITH    V.    ALABAMA. 


813 


But  for  the  provisions  on  the  subject  found  in  the  local  law  of 
each  State,  there  would  be  no  legal  obligation  on  the  lait  of  the 
carrier,  whether  ex  contractu  or  ex  delicto,  to  those  who  employ 
him;  or  if  the  local  law  is  held  not  to  apply  where  the  carrier  is 
engaged  in  foreign  or  interstate  commerce,  then,  in  the  absence  of 
laws  passed  by  Congress  or  presumed  to  be  adopted  by  it,  there  can 
be  no  rule  of  decision  based  upon  rights  and  duties  supposed  to  grow 
out  of  tlie  relation  of  such  carriers  to  tlie  public  or  to  individuals. 
In  other  words,  if  the  law  of  the  particular  State  does  not  govern 
that  relation,  and  prescribe  the  rights  and  duties  which  it  implies, 
then  there  is  and  can  be  no  law  that  does  until  Congress  expressly 
supplies  it,  or  is  held  by  implication  to  have  supplied  it,  in  cases 
within  its  jurisdiction  over  foreign  and  interstate  commerce.  The 
failure  of  Congress  to  legislate  can  be  construed  only  as  an  intention 
not  to  disturb  what  already  exists,  and  is  the  mode  by  which  it 
adopts,  for  cases  within  the  scope  of  its  power,  the  rule  of  the  State 
law  which  until  displaced  discovers  the  subject. 

There  is  no  common  law  of  the  United  States,  in  the  sense  of  a 
national  customary  law,  distinct  from  the  common  law  of  England 
as.adopted  by  the  several  States  each  for  itself,  applied  as  its  local 
law,  and  subject  to  such  alteration  as  may  be  provided  by  its  own 
statutes.  Wheaton  v.  Peters,  8  Pet.  591.  A  determination  in  a 
given  case  of  what  that  law  is  may  be  different  in  a  court  of  the 
United  States  from  tliat  which  prevails  in  tlie  judicial  tribunals  of 
a  particular  State.  This  arises  from  the  circumstance  that  the 
courts  of  the  United  States  in  cases  within  their  jurisdiction,  where 
they  are  called  upon  to  administer  the  law  of  the  State  in  which 
they  sit  or  by  which  the  transaction  is  governed,  exercise  an  inde- 
pendent though  concurrent  jurisdiction,  and  are  required  to  ascer- 
tain and  declare  the  law  according  to  their  own  judgment.  This  is 
illustrated  by  the  case  of  Railroad  Co.  v.  Lockwood,  17  ^Yall.  357, 
where  the  common  law  prevailing  in  the  State  of  New  York,  in  refer- 
ence to  the  liability  of  common  carriers  for  negligence,  received  a 
different  interpretation  from  that  placed  upon  it  by  the  judicial 
tribunals  of  the  State ;  but  the  law  as  applied  was  none  the  less  the 
law  of  that  State. 

In  cases,  also,  arising  under  the  lex  mercatoria,  or  law  merchant, 
by  reason  of  its  international  character,  this  court  has  held  itself 
less  bound  by  the  decisions  of  the  State  courts  than  in  other  cases. 
Swift  V.  Tyson,  16  Pet.  1;  Carpenter  r.  Providence  Washington 
Insurance  Co.,  16  Pet.  495;  Gates  v.  National  Bank,  100  U.  S. 
239;  Railroad  Company  v.  National  Bank,  102  U.  S.  14. 

There  is,  however,  one  clear  exception  to  the  statement  that  there 
is  no  national  common  law.  The  interpretation  of  the  Constitution 
of  the  United  States  is  necessarily  influenced  by  the  fact  that  its 
provisions  are  framed  in  the  language  of  the  English  common  law, 
and  are  to  be  read  in  the  light  of  its  history.     The  code  of  consti- 


814  THE   JUDICIAL   DEPARTMENT.  [CHAP.  TI. 

tutioual  and  statutory  construction  which,  therefore,  is  gradually 
fornied  by  the  judgments  of  this  court,  in  the  application  of  the 
Constitution  and  the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as  may  be  implied  in 
the  subject,  and  constitutes  a  common  law  resting  on  national 
authority.     Moore  v.  United  States,  91  U.  S.  270. 

Judgment  affirmed.^ 

1  Mr.  Justice  Bradley  dissented^ 

In  the  following  cases  expressions  are  used  or  decisions  made  indicating  that  there 
is  no  common  law  of  the  United  States  as  distinct  from  the  States  :  U.  S.  v.  Worrall, 
2  Dall.  384  ;  U.  S.  r.  Hudson,  7  Cranch,  32  ;  U.  S.  v.  Coolidge,  1  Wheat.  415  ;  Wheaton 
V.  Peters,  8  Pet.  591,  65S  ;  Kendall  v.  U.  S.,  12  Pet.  524,  621  ;  Bncher  r.  Uailroad  Co., 
125  U.  S.  583  ;  In  re  Barry,  a  case  in  the  United  States  Circuit  Court  for  the  Southern 
District  of  New  York,  reported  as  a  note  to  the  case  of  In  re  Eurrus,  136  U.  S.  586,  597. 
These  cases  and  others  are  cited  and  considered  in  Gatton  v.  Chicago,  R.  I.,  &  P.  R.  Co., 
95  Iowa,  112. 

In  the  case  of  the  "Western  Ukiox  Telegraph  Company  v.  Call  Pcblishing 
Company,  181  U.  S.  92,  21  Sup.  Ct.  Rep.  561  (1901),  it  is  said:  "There  is  no  body  of 
Federal  common  law  separate  and  distinct  from  the  common  law  existing  in  the 
several  States  in  the  sense  that  there  is  a  body  of  statute  law  enacted  by  Congress 
separate  and  distinct  from  the  body  of  statute  law  enacted  by  the  several  States.  But 
it  is  an  entirely  different  thing  to  hold  that  tliere  is  no  common  law  in  force  generally 
tlirouo-hout  the  United  States,  and  that  the  countless  multitude  of  interstate  commer- 
cial transactions  are  subject  to  no  rules  and  burdened  by  no  restrictions  other  than 
those  expressed  in  the  statutes  of  Congress."  And  it  is  held  that  the  principles  of  the 
common  law  applicable  to  common  carriers,  forbidding  unreasonable  discriminations 
in  charo-es,  are  in  force  as  to  interstate  commerce  so  far  as  they  are  not  superseded 
by  Federal  legislation. 


SECT.  I.]  MARBURY   V.  MADISON.  815 


CHAPTER  VII. 

CiHECKS  AND  BALANCES  IN   GOVERNMENT. 


Section  I.  —  Judicial  Restraints  on  Legislative 
Encroachments. 


MARBUEY  V.  MADISON. 
1  Cranch,  137;  1  Curtis,  368.     1803. 

[This  was  an  original  proceeding  in  this  court  for  mandamus  to 
the  Secretary  of  State  to  require  him  to  deliver  a  commission  to 
plaintiff  as  justice  of  the  peace  for  the  District  of  Columbia.  By  the 
Judiciary  Act  the  Supreme  Court  was  authorized  "  to  issue  writs  of 
mandamus  in  cases  warranted  by  the  principles  and  usages  of  law, 
to  any  eourt-s  appointed,  or  persons  hokling  office,  under  the  author- 
ity of  the  United  States.  The  court  holds  that  the  case  is  a  proper 
one  for  mandamus,  but  comes  to  the  conclusion  (see  sujj'ra,  p.  766,  in 
note)  that  the  power  to  issue  such  a  writ  to  an  officer  is  an  exercise 
of  original  jurisdiction,  but  is  not  within  the  scope  of  the  original 
jurisdiction  conferred  by  the  Constitution  on  the  Supreme  Court.] 

Mk.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 

The  authority,  therefore,  given  to  the  Supreme  Court,  by  the  act 
establishing  the  judicial  courts  of  the  United  States,  to  issue  writs 
of  mandamus  to  public  officers,  appears  not  to  be  warranted  by  the 
Constitution  ;  and  it  becomes  necessary  to  inquire  whether  a  juris- 
diction so  conferred  can  be  exercised. 

The  question  whether  an  act  repugnant  to  the  Constitution  can 
become  the  law  of  the  land,  is  a  question  deeply  interesting  to  the 
United  States  ;  but,  happily,  not  of  an  intricacy  proportioned  to  its 
interest.  It  seems  only  necessary  to  recognize  certain  principles, 
supposed  to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their  future 
government,  such  principles  as,  in  their  opinion,  shall  most  conduce 
to  their  own  happiness,  is  the  basis  on  which  the  whole  American 
fabric  has  been  erected.  The  exercise  of  this  original  right  is  a  very 
great  exertion  j  nor  can  it  nor  ought  it  to  be  frequently  repeated. 


816  CHECKS  AND  BALANCES  IN  GOVERNMENT.   [CHAP.  VII. 

The  princii)les,  therefore,  so  established,  are  deemed  fundamental. 
And  as  the  authority  from  which  they  proceed  is  supreme,  and  can 
seldom  act,  they  are  designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  government,  and  as- 
signs to  different  departments  their  respective  powers.  It  may 
either  stop  here,  or  establish  certain  limits  not  to  be  transcended 
by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
'-  The  powers  of  the  legislature  are  defined  and  limited  ;  and  that  those 
limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is  written. 
To  what  purpose  are  powers  limited,  and  to  what  purpose  is  that 
limitation  committed  to  writing,  if  these  limits  may,  at  any  time,  be 
passed  by  those  intended  to  be  restrained  ?  The  distinction  between 
a  government  with  limited  and  unlimited  powers  is  abolished,  if  those 
limits  do  not  confine  the  persons  on  whom  they  are  imposed,  and  if 
acts  prohibited  and  acts  allowed  are  of  equal  obligation.  It  is  a 
proposition  too  plain  to  be  contested,  that  the  Constitution  controls 
'  any  legislative  act  repugnant  to  it;  or,  that  the  legislature  may  alter 
the  Constitution  by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The  Con- 
stitution is  either  a  superior  paramount  law,  unchangeable  by  ordi- 
nary means,  or  it  is  on  a  level  with  ordinary  legislative  acts,  and,  like 
other  acts,  is  alterable  when  the  legislature  shall  please  to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative  act 
contrary  to  the  Constitution  is  not  law ;  if  the  latter  part  be  true, 
then  written  constitutions  are  absurd  attempts,  on  the  part  of  the 
people,  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  contem- 
plate them  as  forming  the  fundamental  and  paramount  law  of  the 
nation,  and,  consequently,  the  theory  of  every  such  government  must 
be,  that  an  act  of  the  legislature,  repugnant  to  the  Constitution, 
is  void. 

This  theory  is  essentially  attached  to  a  written  constitution,  and 
is  consequently  to  be  considered,  by  this  court,  as  one  of  the  funda- 
mental principles  of  our  society.  It  is  not,  therefore,  to  be  lost  sight 
of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  Constitution,  is  void, 
does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and  oblige 
them  to  give  it  effect  ?  Or,  in  other  words,  though  it  be  not  law,  does 
it  constitute  a  rule  as  operative  as  if  it  was  a  law  ?  This  would  be 
to  overthrow  in  fact  what  was  established  in  theory ;  and  would  seem, 
at  first  view,  an  absurdity  too  gross  to  be  insisted  on.  It  shall,  how- 
ever, receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  department 
to  say  what  the  law  is.  Those  who  apply  the  rule  to  particular  cases 
must  of  necessity  expound  and  interpret  that  rule.  If  two  laws  con- 
flict with  each  other,  the  courts  must  decide  on  the  operation  of  each. 


SECT.  I.]  MARBURY   V.   MADISON.  817 

So  if  a  law  be  in  opposition  to  the  Constitution ;  if  both  the  law 
and  the  Constitution  apply  to  a  particular  case,  so  that  the  court  must 
either  decide  that  case  conformably  to  the  law,  disregarding  the  Con- 
stitution, or  conformably  to  the  Constitution,  disregarding  the  law, 
the  court  must  determine  which  of  these  conflicting  rules  governs  the 
case.     This  is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  Constitution,  and  the  Consti- 
tution is  superior  to  any  ordinary  act  of  the  legislature,  the  Con- 
stitution, and  not  such  ordinary  act,  must  govern  the  case  to  which 
they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution  is 
to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to  the 
necessity  of  maintaining  that  courts  must  close  their  eyes  on  the 
Constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  according  to  the 
principles  and  theory  of  our  government,  is  entirely  void,  is  yet,  in 
practice,  completely  obligatory.  It  would  declare  that  if  the  legis- 
lature shall  do  what  is  expressly  forbidden,  such  act,  notwithstanding 
the  express  prohibition,  is  in  reality  effectual.  It  woukl  be  giving 
to  the  legislature  a  practical  and  real  omnipotence,  with  the  same 
breath  which  professes  to  restrict  their  powers  within  narrow  limits. 
It  is  prescribing  limits,  and  declaring  that  those  limits  may  be  passed 
at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  greatest 
improvement  on  political  institutions,  a  written  constitution,  would 
of  itself  be  sufficient,  in  America,  where  written  constitutions  have 
been  viewed  with  so  much  reverence,  for  rejecting  the  construction. 
But  the  peculiar  expressions  of  the  Constitution  of  the  United  States 
furnish  additional  arguments  in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  Constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that 
in  using  it  the  Constitution  should  not  be  looked  into  ?  That  a  case 
arising  under  the  Constitution  should  be  decided  without  examining 
the  instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  Constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they  for- 
bidden to  read  or  to  obey  ? 

There  are  many  other  parts  of  the  Constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "  no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  State."  Suppose  a  duty  on  the  export  of  cotton,  of 
tobacco,  or  of  flour  ;  and  a  suit  instituted  to  recover  it.  Ought  judg- 
ment to  be  rendered  in  such  a  case  ?  ought  the  judges  to  close  their 
eyes  on  the  Constitution,  and  only  see  the  law  ? 

62 


818  CHECKS  AND  BALANCES  IN  GOVERNMENT.   [CHAP.  VII. 

The  Constitution  declares  "that  no  bill  of  attainder  or  ex  post  facto 
law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should  be 
prosecuted  under  it,  must  the  court  condemn  to  death  those  victims 
whom  the  Constitution  endeavors  to  preserve  ? 

"  No  person,"  says  the  Constitution,  "  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court." 

Here  the  language  of  the  Constitution  is  addressed  especially  to 
the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence  not  to 
be  departed  from.  If  the  legislature  should  change  that  rule,  and 
declare  one  witness,  or  a  confession  out  of  court,  sufficient  for  convic- 
tion, must  the  constitutional  principle  yield  to  the  legislative  act  ? 

From  these,  and  many  other  selections  which  might  be  made,  it  is 
apparent  that  the  framers  of  the  Constitution  contemplated  that  in- 
strument as  a  rule  for  the  government  of  courts,  as  well  as  of  the 
legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to  sup- 
port it?  This  oath  certainly  applies  in  an  especial  manner  to  their 
conduct  in  their  official  character.  How  immoral  to  impose  it  on 
them,  if  they  were  to  be  used  as  the  instruments,  and  the  knowing 
instruments,  for  violating  what  they  swear  to  support ! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words:  "I  do  solemnly  swear  that  I  will  administer  justice 
without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to  the 
rich;  and  that  I  will  faithfully  and  impartially  discharge  all  the  du- 
ties incumbent  on  me  as  ,  according  to  the  best  of  my  abilities 
and  understanding,  agreeably  to  the  Constitution  and  laws  of  the 
United  States.". 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to  the 
Constitution  of  the  United  States,  if  that  Constitution  forms  no  rule 
for  his  government  —  if  it  is  closed  upon  him,  and  cannot  be  in- 
spected by  him? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn  mock- 
ery.    To  prescribe,  or  to  take  this  oath,  becomes  equally  a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  Constitution  itself  is 
first  mentioned ;  and  not  the  laws  of  the  United  States  generally,  but 
tliose  only  which  shall  be  made  in  pursuance  of  the  Constitution,  have 
that  rank. 

Thus,  the  particular  phraseology  of  the  Constitution  of  the  United 
States  confirms  and  strengthens  the  principle,  supposed  to  be  essen- 
tial to  all  written  constitutions,  that  a  law  repugnant  to  the  Consti- 
tution is  void ;  and  that  courts,  as  well  as  other  departments,  are 
bound  by  that  instrument.  The  rule  viust  be  discharged. 


SECT.  II.]  FREES  V.    FORD.  819 

Section  II.  —  Exercise  of  Power    to    pass   on    Consti- 
tutionality OF  Statutes. 


FREES  V.   FORD. 
6  New  Yojk,  176.     1852. 

Appeals,  by  the  defendants,  from  judgments  of  the  Supreme  Court, 
affirming  judgments  rendered  in  the  County  Court  of  the  County  of 
Columbia,  in  favor  of  the  plaintiffs.  The  facts  in  the  two  cases  were 
alike  in  substance,  and  presented  the  same  questions.  The  suits 
were  commenced  in  January,  1848,  by  the  tiling  and  service  of  decla- 
rations, in  the  usual  form  in  assumpsit,  on  the  common  counts.  In 
the  first  action,  the  damages  claimed  were  two  hundred,  and  in  the 
last  one  hundred  dollars.  Xeither  declaration  contained  any  allega- 
tion as  to  the  residence  of  the  defendants. 

The  defendants  in  their  pleas  alleged  that  the  Supreme  Court  had 
exclusive  jurisdiction  of  the  causes  of  action,  and  that  the  same 
were  not  subject  to  the  jurisdiction  of  the  County  Court.  The  plain- 
tiffs demurred  to  the  pleas,  assigning  various  special  causes,  and 
the  defendants  joined  in  demurrer. 

Johnson-,  J.  There  is  a  ground  on  which  these  judgments  ought 
to  be  reversed,  leaving  untouched  the  question  of  the  constitution- 
ality of  the  Judiciary  Act  so  far  as  it  relates  to  the  jurisdiction  of  the 
County  Courts.  We  ought  not  to  pass  upon  the  question  of  the  con- 
stitutionality of  a  statute,  unless  the  determination  of  the  point  is 
necessary  to  the  determination  of  the  cause.  Indeed  we  cannot,  if 
we  would,  so  pass  upon  it  as  to  render  our  decision  efficient  as 
authority,  when  there  is  another  and  clear  ground  on  which  our 
judgment  may  be  supported. 

The  30th  section  of  the  Judiciary  Act  provides,  that  the  County 
Courts  shall  have  jurisdiction  "  to  hear,  try,  and  determine  according 
to  law,  the  following  actions  when  all  of  the  defendants  at  the  time 
of  commencing  the  action  reside  in  the  county  in  which  said  court 
is  held;  actions  of  debt,  assumpsit  and  covenant,  when  the  debt  or 
damages  claimed  shall  not  exceed  two  thousand  dollars,"  &c.  This 
County  Court  is  not  a  court  of  general  jurisdiction,  as  was  the  old 
Court  of  Common  Pleas;  on  the  contrary,  it  is  a  new  court  with 
a  limited  statutory  jurisdiction.  To  all  such  courts  the  rule  uni- 
versally applies,  that  their  jurisdifetion  must  appear  upon  the  record. 
Turner,  adm'r,  v.  The  Bank  of  North  America,  4  Dallas,  8.  In 
these  cases  it  does  not  appear  upon  the  records  that  the  defendants 
were,  at  the  time  when  the  suits  were  commenced,  residents  of  the 
county  of  Columbia.  This  being  a  jurisdictional  fact,  and  not  averred 
upon  the  records,  the  judgments  must  be  reversed. 


820         CHECKS  AND  BALANCES  IN  GOVERNMENT.   [CHAP.  TIL 


CHICAGO  AND  GRAND  TRUNK  RAILWAY   COMPANY 
V.  WELLMAN. 

143  United  States,  339.     1892. 

[This  suit  was  prosecuted  by  defendaut  in  error  in  the  State  courts 
of  Michigan  against  plaintiff  in  error  for  damages  resulting  from  the 
refusal  of  the  latter  to  transport  the  former  as  a  passenger  for  the 
rate  of  passenger  fare  fixed  by  statute  of  the  State.  In  the  trial  court 
the  case  was  submitted  on  an  agreed  statement  of  facts  and  the  testi- 
mony of  two  witnesses  as  to  the  capital  stock,  debts,  earnings,  and 
expenses  of  the  company.  The  defendant  below  asked  an  instruc- 
tion that  the  statute  was  unconstitutional,  which  was  refused,  and 
judgment  was  rendered  for  plaintiff,  which,  on  appeal,  was  affirmed 
by  the  Supreme  Court  of  the  State  and  the  case  was  brought  to  this 
court  on  writ  of  error.  In  the  first  part  of  the  opinion  it  is  sug- 
gested that  the  facts  in  the  record  are  not  sufficient,  to  enable  the 
court  to  say  as  matter  of  law  that  the  State  statute  would  reduce 
the  earnings  of  the  company  below  a  just  compensation,  and  that 
the  question  was  one  for  the  jury.  Certain  facts  set  out  as  to  the 
peculiar  incidents  of  the  bringing  of  suit  and  trial  of  the  case  are 
sufficiently  referred  to  in  the  portion  of  the  opinion  set  out  below.] 

Mr.  Justice  Brewek  delivered  the  opinion  of  the  court. 

The  Supreme  Court  of  Michigan  in  passing  upon  the  present  case 
felt  constrained  to  make  this  observation  :  — 

"  It  being  evident  from  the  record  that  this  was  a  friendly  suit 
between  the  plaintiff'  and  the  defendant  to  test  the  constitutionality 
of  this  legislation,  the  Attorney-General,  when  it  was  brought  into 
this  court  upon  writ  of  error,  very  properly  interposed  and  secured 
counsel  to  represent  the  public  interest.  In  the  stipulation  of  facts 
or  in  the  taking  of  testimony  in  the  court  below  neither  the  Attorney- 
General  nor  any  other  person  interested  for  or  employed  in  behalf 
of  the  people  of  the  State  took  any  part.  What  difference  there 
might  have  been  in  the  record  had  the  people  been  represented  in 
the  court  below,  however,  under  our  view  of  the  case,  is  not  of 
material  inquiry." 

Counsel  for  plaintiff  in  error,  referring  to  this,  does  not  question 
or  deny,  but  says  :  "  The  Attorney-General  speaks  of  the  case  as 
evidently  a  friendly  case,  and  Justice  Morse,  in  his  opinion,  also 
so  speaks  of  it.  This  may  be  conceded;  but  what  of  it?  There  is 
no  ground  for  the  claim  that  any  fraud  or  trickery  has  been  prac- 
tised in  presenting  the  testimony." 

We  think  there  is  much  in  the  suggestion.  The  theory  upon 
which,  apparently,  this   suit  was  brought  is  that   parties   have  an 


SECT.  II.]       CHICAGO  AND  GRAND  TRUNK  RY.  CO.  V.  WELLMAN.  821 

appeal  from  the  legislature  to  the  courts ;  and  that  the  latter  are 
given  an  immediate  and  general  supervision  of  the  constitutionality 
of  the  acts  of  the  former.  Such  is  not  true.  Whenever,  in  pursu- 
ance of  an  honest  and  actual  antagonistic  assertion  of  rights  by  one 
individual  against  another,  there  is  presented  a  question  involving 
the  validity  of  any  act  of  any  legislature,  State  or  Federal,  and  the 
decision  necessarily  rests  on  the  competency  of  the  legislature  to  so 
enact,  the  court  must,  in  the  exercise  of  its  solemn  duties,  determine 
whether  the  act  be  constitutional  or  not ;  but  such  an  exercise  of 
power  is  the  ultimate  and  supreme  function  of  courts.  It  is  legiti- 
mate only  in  the  last  resort,  and  as  a  necessity  in  the  determination 
of  real,  earnest,  and  vital  controversy  between  individuals.  It  never 
was  the  thought  that,  by  means  of  a  friendly  suit,  a  party  beaten  in 
the  legislature  could  transfer  to  the  courts  an  inquiry  as  to  the  con- 
stitutionality of  the  legislative  act. 

These  observations  are  pertinent  here.  On  the  very  day  the  act 
went  into  force  the  application  for  a  ticket  is  made,  a  suit  com- 
menced, and  within  two  months  a  judgment  obtained  in  the  trial 
court;  a  judgment  rendered  not  upon  the  presentation  of  all  the 
facts  from  the  lips  of  witnesses,  and  a  full  inquiry  into  them,  but 
upon  an  agreed  statement  which  precludes  inquiry  into  many  things 
which  necessarily  largely  enter  into  the  determination  of  the  matter 
in  controversy.  A  single  suggestion  in  this  direction :  It  is  agreed 
that  the  defendant's  operating  expenses  for  1888  were  $2,404,516.54. 
Of  what  do  these  operating  expenses  consist  ?  Are  they  made  up 
partially  of  extravagant  salaries  —  fifty  to  one  hundred  thousand 
dollars  to  the  president,  and  in  like  proportion  to  subordinate  offi- 
cers ?  Surely,  before  the  courts  are  called  upon  to  adjudge  an  act 
of  the  legislature  fixing  the  maximum  passenger  rates  for  railroad 
companies  to  be  unconstitutional,  on  the  ground  that  its  enforcement 
would  prevent  the  stockholders  from  receiving  any  dividends  on 
their  investments,  or  the  bondholders  any  interest  on  their  loans, 
they  should  be  fully  advised  as  to  what  is  done  with  the  receipts 
and  earnings  of  the  company  ;  for  if  so  advised,  it  might  clearly 
appear  that  a  prudent  and  honest  management  would,  within  the 
rates  prescribed,  secure  to  the  bondholders  their  interest,  and  to  the 
stockholders  reasonable  dividends.  While  the  protection  of  vested 
rights  of  property  is  a  supreme  duty  of  the  courts,  it  has  not  come 
to  this,  that  the  legislative  power  rests  subservient  to  the  discretion 
of  any  railroad  corporation  which  may,  by  exorbitant  and  unreason- 
able salaries,  or  in  some  other  improper  way,  transfer  its  earnings 
into  what  it  is  pleased  to  call  ''  operating  expenses." 

We  do  not  mean  to  insinuate  aught  against  the  actual  manage- 
ment of  the  affairs  of  this  company.  The  silence  of  the  record  gives 
us  no  information,  and  we  have  no  knowledge  outside  thereof,  and 
no  suspicion  of  wrong.  Our  suggestion  is  only  to  indicate  how 
easily  courts  may  be  misled  into  doing  grievous  wrong  to  the  public, 


822         CHECKS  AND  BALANCES  IN  GOVERNMENT.    [CHAP.  YII.  ! 


^ 


and  how  careful  they  should  be  to  not  declare  legislative  acts  uncon-  ■  4 

stitutional   upon  agreed   and   general  statements,  and  without  the  I  j 

fullest  disclosure  of  all  material  facts.  il^ 

Judgment  affirmed.  IBJ 


Section  III.  —  Effect   of  Partial  Unconstitutionality. 


POLLOCK  V.    PAEMERS'    LOAN    AND    TRUST    COMPANY. 

(Rehearing.) 

158  United  States,  601.     1895. 

[See  page  223,  supra.'] 


FIELD  V.   CLARK. 

143  United  States,  649.     1892. 

[See  page  95,  supra.'] 


Section  IV.  —  Responsibility   fopv  Official  Acts  under 
Unconstitutional  Statute. 


CAMPBELL   V.   SHERMAN. 
35  Wisconsin,  103.     1874. 

Appeal  from  the  Circuit  Court  for  Eau  Claire  County. 

Action  for  the  unlawful  seizure  and  conversion  by  the  defendant, 
sheriff  of  Eau  Claire  County,  through  his  deputy,  and  under  color  of 
his  office,  of  a  steamboat  with  its  tackle  and  furniture,  the  property 
of  the  plaintiff.  The  complaint  demands  damages  for  the  value  of 
the  property  and  for  the  loss  caused  plaintiff  in  his  business  by  the 
seizure. 

[The  steamboat  was  seized  by  the  sheriff  under  a  writ  issued  from 
a  State  court  in  a  proceeding  in  accordance  with  the  laws  of  the  State 
to  enforce  a  lien  on  such  boat  for  a  sura  due  to  one  Heylraun  under 


SECT.  IT.]  CAMPBELL    V.   SHERMAN.  823 

contract  for  services  as  a  pilot.  After  such  seizure  the  steamboat 
was  accidentally  destroyed  by  fire.  These  facts  being  set  up  by  an- 
s^-er  as  a  defence,  the  plaintiff  demurred  thereto,  and  appealed' from 
an  order  overruling  his  demurrer.  The  court,  in  its  opinion,  holds 
that  the  statute  authorizing  proceedings  in  the  courts  of  the  State  to 
enforce  a  maritime  lien  such  as  that  claimed  in  the  action  in  which 
the  sheriff  made  the  seizure  was  unconstitutional,  and  then  proceeds.] 
Cole,  J. 

This  being  the  case,  the  further  question  arises,  Did  the  warrant 
thus  issued  in  a  cause  over  which  that  court  had  no  jurisdiction, 
afford  any  protection  to  the  officer  for  acts  done  in  its  execution  ? 
The  counsel  for  the  defendant  contends  that  it  would  protect  the 
officer,  and  that,  if  fair  and  regular  on  its  face,  he  had  no  right  and 
it  was  not  his  duty  to  inquire  whether  the  court  which  issued  it  had 
jurisdiction  of  the  cause.  Where  the  subject-matter  of  the  suit  is 
within  the  jurisdiction  of  the  court,  yet  jurisdiction  in  the  particular 
case  is  wanting,  there  is  certainly  reason  and  authority  for  holding 
that  an  officer  who  executes  a  process  fair  upon  its  face  shall  be  pro- 
tected. But  a  clear  distinction  exists  between  that  case  and  a  pro- 
ceeding in  which  the  process  itself  shows  that  the  court  has  exceeded 
its  jurisdiction.  The  rule  is  stated  by  Mr.  Justice  Smith  in  Bag- 
nail  V.  Ableman,  4  Wis.  163,  in  the  following  language :  "  When  the 
process  is  fair  on  its  face,  and  issued  by  a  court  or  magistrate  of  com- 
petent jurisdiction,  it  is  a  protection  to  the  officer.  But  if  it  be  not 
fair  and  regular  upon  its  face,  or  its  recitals  or  commands  show  a 
want  or  excess  of  jurisdiction  in  the  court  or  magistrate  issuing  it, 
the  officer  is  not  protected  in  its  execution."  p.  179.  The  form  of 
the  warrant  issued  in  the  present  case  is  not  set  forth  in  the  answer. 
But  it  was  undoubtedly  such  a  process  as  the  clerk  was  required  to 
issue  upon  the  filing  of  the  complaint,  and  it  would  show  upon  its 
face  that  it  was  issued  in  a  proceeding  instituted  under  the  provisions 
of  ch.  184  [Laws  of  1869].  It  would  command  the  officer  to  attach 
and  seize  tlie  steamer  "Ida Campbell,"  her  tackle,  apparel,  and  furni- 
ture, if  found  within  his  county,  and  safely  keep  the  same  to  answer  all 
such  liens  as  should  be  established  against  it  in  favor  of  the  plaintiff 
in  the  cause.  It  would  properly  contain  recitals  showing  that  a  com- 
plaint had  been  filed  with  the  clerk,  and  state  the  nature  and  amount 
of  the  demand  for  whicii  a  lien  was  claimed  against  the  vessel.  We 
must  presume  from  the  matters  stated  in  the  answer  that  such  was 
the  form  of  the  warrant  under  which  the  officer  acted  ;  and  further- 
more, a  process  setting  forth  these  facts  would  be  required  by  the  law 
under  which  the  proceeding  was  taken.  And  it  is  very  apparent  that 
such  a  warrant  would  show  upon  its  face  the  nature  of  the  proceed- 
ing, and  that  the  suit  was  instituted  to  enforce  a  maritime  lien.  In 
other  words,  it  would  show  that  the  Circuit  Court  had  no  jurisdiction 
of  the  subject-matter  of  the  action,  and  no  power  to  hear  and  deter- 


S24  CHECKS  AND  BALANCES  IN  GOVERNMENT.    [CKAF.  VII. 

mine  it.  And  we  understand  the  rule  to  be,  that  where  the  process 
does  thus  show  a  want  of  jurisdiction  in  the  court  of  the  subject- 
matter  of  the  action,  it  is  void,  and  does  not  protect  the  officer.  In 
this  all  the  cases  agree. 

But  it  is  said  that  this  rule  imposed  upon  the  officer  in  the  present 
case  the  duty  of  determining,  in  advance  of  any  decision  of  the  courts 
of  this  State,  the  validity  of  an  act  of  the  legislature.  How  can  it 
be  expected,  it  is  asked,  that  a  mere  ministerial  officer  could  decide 
such  a  question,  and  thus  find  out  that  his  process  was  void  for  want 
of  jurisdiction  in  the  court  which  issued  it?  The  maxim  ignorantia 
juris  non  excusat,  —  ignorance  of  the  law,  which  every  man  is 
presumed  to  know,  does  not  afford  excuse, —  in  its  application  to 
human  affairs,  frequently  operates  harshly;  and  yet  it  is  manifest 
that  if  ignorance  of  the  law  were  a  ground  of  exemption,  the  admin- 
istration of  justice  would  be  arrested,  and  society  could  not  exist. 
For  in  every  case  ignoi-ance  of  the  law  would  be  alleged.  And  con- 
sequently the  answer  must  be  given  in  this  case,  that  the  ignorance 
of  the  officer  is  of  the  law,  and  the  rule  is  almost  without  an  excep- 
tion, that  this  does  not  excuse.  It  may  devolve  upon  the  officer  a 
vast  responsibility  in  some  cases,  to  say  that  he  must  notice  at  his 
peril  that  an  act  of  the  legislature  attempting  to  confer  jurisdiction 
upon  the  courts  is  unconstitutional.  But  if  the  officer  does  not  wish 
to  assume  all  the  hazard  which  such  a  rule  of  law  imposes  on  him, 
he  must  require  a  bond  of  indemnity  from  the  party  for  whom  he  is 
acting.  It  is  further  said  that  it  was  the  duty  of  the  officer  to  obey 
the  mandate  of  the  warrant  and  seize  the  identical  steamboat  which 
he  did  attach,  and  that  he  had  no  alternative  but  to  obey.  If  the 
act  which  the  writ  commanded  him  to  do  was  a  trespass,  he  was  not 
required  to  perform  it.  Nor  would  he  be  liable  in  that  case  to  the 
plaintiff  for  refusing  to  execute  a  process  void  for  want  of  jurisdiction. 

We  have  examined  the  authorities  cited  on  the  brief  of  counsel  for 
the  defendant,  but  we  find  nothing  in  them  inconsistent  with  the 
views  above  expressed. 

The  conclusion  which  we  have  reached  is,  that  the  answer  does 
not  state  a  defence  to  the  action,  and  that  the  demurrer  to  it  should 
have  been  sustained. 


STATE   V.   GODWIN. 

123  North  Carolina,  697.     1898. 

[Defendants  were  justices  of  the  peace  whose  duty  by  a  certain 
statute  of  the  State  was  to  take  action  with  reference  to  the  public 
roads  in  their  township.  A  subsequent  statute  purported  to  repeal 
the  statute  above  referred  to,  so  far  as  it  applied  to  the  county  of 


SECT.  IV.]  STATE   V.   GODWIN.  825 

which  defendants  were  officers,  and  relieve  them  from  the  duty 
thereby  imposed.  Defendants  were  indicted  for  refusal  to  perform 
an  official  duty  in  not  acting  under  the  former  statute.  On  the  trial 
the  jury  found  a  special  verdict  reciting  that  the  county  commis- 
sioners had,  on  advice  of  counsel,  determined  not  to  act  under  the 
later  statute  on  the  ground  that  it  was  void,  and  that  defendants  also, 
on  advice  of  counsel,  were  of  opinion  that  nevertheless  the  later 
statute  repealed  the  earlier,  and  therefore  failed  to  do  the  official 
acts  required  by  the  earlier  statute,  believing  that  those  acts  devolved, 
in  accordance  with  the  later  statute,  on  other  officers  as  therein  pro- 
vided. From  a  judgment  of  not  guilty  the  State  appealed.  The 
court  in  its  opinion  reaches  the  conclusion  that  the  later  statute  was 
unconstitutional  by  reason  of  some  provisions  therein,  and  that  the 
earlier  statute  was  not  thereby  repealed,  and  then  continues.] 
Montgomery,  J. 

The  question  for  decision,  then,  is,  is  one  who  is  a  public  officer 
under  a  former  provision  of  law  compelled,  under  pain  of  indictment 
and  punishment,  to  perform  the  duties  of  the  office  during  the 
time^when  there  was  on  the  statute  books  a  subsequent  act  unconsti- 
tutional in  all  of  its  provisions  ?  The  matter  is  an  important  one, 
both  to  the  public  and  to  the  individual.  With  us,  public  office  is  a 
public  trust,  and  public  officers  are  merely  the  agents  of  the  people. 
This  fundamental  principle  of  republican  government  may  not  al- 
ways be  recognized  by  the  officer,  but  it  is  nevertheless  the  true 
theory.  When  the  people,  through  their  representatives,  create  a 
public  office,  and  prescribe  the  duties  of  the  officer,  the  people  act  for 
the  common  good,  and  the  incumbent  of  the  office  is  the  mere  instru- 
ment used  for  the  general  welfare.  His  gain  or  profit  is  not  in 
contemplation  of  the  lawmakers.  The  public  interest  is  the  chief 
consideration.  What  an  anomalous  state  of  things  would  we  have, 
then,  if  a  person  believing  himself  to  be  a  public  officer,  because  of 
the  discharge  of  the  duties  which  he  thought  he  owed  to  the  public, 
should  afterwards  be  indicted  and  punished,  because  the  courts  had 
held  the  act  which  created  the  office  and  prescribed  its  duties  to  be 
against  the  provisions  of  the  Constitution  and  void  !  Such  a  proposi- 
tion would  be  equivalent  to  declaring  that  the  individual  officeholder 
must  be  wiser  than  the  whole  people,  represented  in  their  general 
assembly.  Such  a  proposition,  to  us,  seems  opposed  to  every  idea 
of  justice.  It  could  not  be  true.  The  criminal  law  cannot  be  in- 
voked to  punish  one  who  acts  as  a  public  officer,  —  as  an  agent  of 
the  people,  —  and  who  in  the  discharge  of  a  public  duty  had  obeyed 
an  act  of  the  law-making  power,  even  though  the  law  be  unconstitu- 
tional, unless  the  act  itself  had  required  the  committal  of  a  crime, — 
a  thought  which  could  not  be  entertained  for  a  moment.  And  it 
makes  no  difference  that  in  the  case  before  the  court  the  defendants 
are  indicted  for  a  refusal  to  perform  certain  duties  under  a  former 


826  CHECKS    AND    BALANCES   IN   GOVERNMENT.        [CHAP.  VII. 

law  attempted  to  be  repealed  by  a  subsequent  unconstitutional  statute, 
and  not  for  doing  positive  acts  under  an  unconstitutional  law.  The 
principle  is  the  same  in  both  cases.  The  defendants  here  cannot  be 
punished  under  the  criminal  law  for  failing  and  refusing  to  perform 
the  duties  of  an  office,  which  office,  and  the  duties  pertaining  to  it,  had 
been  sought  to  be  repealed  by  a  subsequent  act  of  the  legislature, 
afterwards  declared  by  the  courts  to  be  unconstitutional.  Until  the 
Subsequent  statute  was  declared  to  be  unconstitutional  by  competent 
authority,  the  defendants,  under  every  idea  of  justice  and  under  our 
theory  of  government,  had  a  right  to  presume  that  the  law-making 
power  had  acted  within  the  bounds  of  the  Constitution,  and  their 
highest  duty   was   to  obey. 

It  is  not  necessary,  to  a  proper  determination  of  this  case,  to  go 
into  the  realm  of  the  effect  of  contracts,  executed  or  executory,  made 
by  a  person  claiming  to  be  a  public  officer,  but  where  there  is  no 
lawfully  created  office.  The  counsel  for  the  prosecution  cited  to  the 
court,  in  support  of  his  position,  the  case  of  Korton  v.  Shelby  Co., 
118  U.  S.  425,  and  especially  to  that  portion  of  the  opinion  -wherein 
it  was  declared  by  the  court  that  "  an  unconstitutional  act  is  not 
a  law ;  it  confers  no  rights  ;  it  imposes  no  duties ;  it  affords  no 
protection ;  it  creates  no  office ;  it  is,  in  legal  contemplation,  as 
inoperative  as  though  it  had  never  passed."  The  opinion  in  that 
case  was  rendered  upon  the  effect  of  an  executory  contract  made 
by  one  who  claimed  to  be  a  public  officer,  the  office  having  been 
created  without  authority  of  law.  For  the  reasons  given  in  this 
opinion,  the  case  of  Norton  v.  Shelby  Co.,  supra,  does  not  apply  to 
the  facts  in  this  case.  Upon  the  special  verdict  the  judgment  of 
the  court  below  was  that  the  defendants  were  not  guilty,  and  the 
judgment  is  affirmed.  Affirmed} 

1  In  12  Harvard  Law  Review,  at  p.  352,  is  the  following  note  to  a  brief  statement 
of  the  foregoing  case :  — 

"  The  case  seems  to  be  correct  in  principle,  although  there  is  a  direct  conflict  of 
authority  on  the  question.  Many  jurisdictions  hold  that  when  a  legislative  enactment 
proves  to  be  invalid,  it  is,  for  all  legal  purposes,  as  if  it  had  never  existed;  and,  before 
it  has  been  declared  unconstitutional  by  the  courts,  acts  done  or  duties  neglected  by  a 
public  officer,  honajide  believing  it  to  be  valid  and  in  reliance  upon  it,  are,  according 
to  the  general  rule,  not  excused  by  his  ignorance  of  the  law.  Sumner  v.  Beeler,  50 
Ind.  341  ;  Campbell  v.  Sherman,  35  Wis.  103.  The  better  and  more  just  doctrine, 
however,  appears  to  be  that  the  officer  is  protected  unless  the  statute  relied  upon  ap- 
pears on  its  face  clearly  unconstitutional.  Heuke  v.  McCord,  55  Iowa,  378 ;  Sessums 
V.  Botts,  34  Tex.  335." 


CHAP.  VIIJ.J  AMlilUCA.N    JN:5.    CO.    V.    CANTEfi.  827 


CHAPTER   VIII. 
THE  GOVERNMENT   OF  THE  TERRITORIES. 


THE   AMERICAN   INSURANCE   COMPANY  v.   CANTER. 

1  Peters,  511  ;  7  Curtis,  685.     1828. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  District  Court  of 
South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton,  part  of 
the  cargo  of  the  ship  •'  Point  a  Petre ;  "  which  had  been  insured  by 
them  on  a  voyage  from  New  Orleans  to  Havre  de  Grace,  in  France. 
The  "Point  a  Petre"  was  wrecked  on  the  coast  of  Florida,  the  cargo 
saved  by  the  inhabitants,  and  carried  into  Key  West,  where  it  was  sold 
for  the  purpose  of  satisfying  the  salvors,  by  virtue  of  a  decree  of  a 
court  consisting  of  a  notary  and  five  jurors,  which  was  erected  by  an 
act  of  the  territorial  legislature  of  Florida.  The  owners  abandoned 
to  the  underwriters,  who,  having  accepted  the  same,  proceeded 
against  the  property,  alleging  that  the  sale  was  not  made  by  order  of 
a  court  competent  to  change  the  property. 

David  Canter  claimed  the  cotton  as  a  bona  fide  purchaser,  under 
the  decree  of  a  competent  court,  which  awarded  seventy-six  per  cent 
to  the  salvors  on  the  value  of  the  property  saved. 

The  district  judge  pronounced  the  decree  of  the  territorial  court  a 
nullity,  and  awarded  restitution  to  the  libellants  of  such  part  of  the 
cargo  as  he  supposed  to  be  identified  by  the  evidence,  deducting 
therefrom  a  salvage  of  fifty  per  cent. 

The  libellants  and  claimant  both  appealed.  The  Circuit  Court 
reversed  the  decree  of  the  District  Court,  and  decreed  the  whole 
cotton  to  the  claimant,  with  costs,  on  the  ground  that  the  proceed- 
ings of  the  court  at  Key  West  were  legal,  and  transferred  the 
property  to  the  purchaser. 

From  this  decree  the  libellants  have  appealed  to  this  court. 

The  cause  depends  mainly  on  the  question  whether  the  property 
in  the  cargo  saved  was  changed  by  the  sale  at  Key  West.  The 
conformity  of  that  sale  to  the  order  under  which  it  was  made  has  not 
been  controverted.  Its  validity  has  been  denied,  on  the  ground  that 
it  was  ordered  by  an  incompetent  tribunal. 


828  THE   GOVERNMENT    OF   THE   TERRITORIES.       [CHAP.  VUJ. 

The  tribunal  was  constituted  by  an  act  of  the  territorial  legislature 
of  Florida,  passed  on  the  4th  July,  1823,  which  is  inserted  in  the 
record.  That  act  purports  to  give  the  power  which  has  been  exer- 
cised; consequently  the  sale  is  valid,  if  the  territoral  legislature 
was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken  will  require  that  in 
deciding  this  question  the  court  should  take  into  view  the  relation  in 
which  Florida  stands  to  the  United  States. 

The  constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties  ;  consequently, 
that  government  possesses  the  power  of  acquiring  territory,  either  by 
conquest  or  by  treaty. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to 
consider  the  holding  of  conquered  territory  as  a  mere  military  occu- 
pation, until  its  fate  shall  be  determined  at  the  treaty  of  peace.  If 
it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed,  and  the  ceded 
territory  becomes  a  part  of  the  nation  to  which  it  is  annexed,  either 
on  the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new 
master  shall  impose.  On  such  transfer  of  territory  it  has  never 
been  held  that  the  relations  of  the  inhabitants  with  each  other 
undergo  any  change.  Their  relations  with  their  former  sovereign  are 
dissolved,  and  new  relations  are  created  between  them  and  the  gov- 
ernment which  has  acquired  their  territory.  The  same  act  which 
transfers  their  country,  transfers  the  allegiance  of  those  who  remain 
in  it;  and  the  law,  which  maybe  denominated  political,  is  necessarily 
changed,  although  that  which  regulates  the  intercourse  and  general 
conduct  of  individuals  remains  in  force  until  altered  by  the  newly 
created  power  of  the  State. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
State«.  The  sixth  article  of  the  treaty  of  cession  (8  Stats,  at  Large, 
252)  contains  the  following  provision :  "  The  inhabitants  of  the 
territories  which  his  Catholic  majesty  cedes  to  the  United  States  by 
this  treaty  shall  be  incorporated  in  the  Union  of  the  United  States, 
as  soon  as  may  be  consistent  with  the  principles  of  the  Federal  Consti- 
tution, and  admitted  to  the  enjoyment  of  the  privileges,  rights,  and 
immunities  of  the  citizens  of  the  United  States." 

This  treaty  is 'the  law  of  the  land,  and  admits  the  inhabitants  of 
Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States.  It  is  unnecessary  to  inquire 
whether  this  is  not  their  condition,  independent  of  stipulation.  They 
do  not,  however,  participate  in  political  power  ;  they  do  not  share 
in  the  government  till  Florida  shall  become  a  State.  In  the  mean 
time,  Florida  continues  to  be  a  Territory  of  the  United  States,  gov- 
erned by  virtue  of  that  clause  in  the  Constitution  which  empowers 
Congress  "  to  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States." 

Perhaps  the  power  of  governing  a  Territory  belonging  to  the  United 


CHAP.  VIII.]  AMERICAN    INS.    CO.    V.    CANTER.  829 

States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of 
self-government,  may  result  necessarily  from  the  facts  that  it  is  not 
within  the  jurisdiction  of  any  particular  State,  and  is  within  the 
power  and  jurisdiction  of  the  United  States.  The  right  to  govern 
may  be  the  inevitable  consequence  of  the  right  to  acquire  territory. 
Whichever  may  be  the  source  whence  the  power  is  derived,  the  pos- 
session of  it  is  unquestioned.  In  execution  of  it.  Congress,  in  1822, 
passed  "  An  Act  for  the  establishment  of  a  territorial  government  in 
Florida"  (3  Stats,  at  Large,  Go4),  and  on  the  3d  of  March,  1823, 
passed  another  act  to  amend  the  act  of  1822.  Under  this  act  the 
territorial  legislature  enacted  the  law  now  under  consideration. 

[Portions  of  the  act  last  above  referred  to,  which  provide  for  cer- 
tain territorial  courts,  are  set  out  and  discussed,  but  it  is  held  that 
the  territorial  court  in  question  did  not  have  admiralty  power  under 
that  act.  Such  power  is  found  to  have  been  derived  from  the  terri- 
torial legislature  under  the  authority  to  pass  laws  with  reference  to 
all  rightful  objects  of  legislation  not  "  inconsistent  with  the  laws 
and  Constitution  of  the  United  States."] 

It  has  been  contended  that,  by  the  Constitution,  the  judicial  power 
of  the  United  States  extends  to  all  cases  of  admiralty  and  maritime 
jurisdiction,  and  that  the  whole  of  tliis  judicial  power  must  be  vested 
'■  in  one  Supreme  Court,  and  in  such  inferior  courts  as  Congress  shall 
from  time  to  time  ordain  and  establish."  Hence  it  has  been  argued 
that  Congress  cannot  vest  admiralty  jurisdiction  in  courts  created  by 
tlie  territorial  legislature. 

We  have  only  to  pursue  this  subject  one  step  further  to  perceive 
that  this  provision  of  the  Constitution  does  not  apply  to  it.  The 
next  sentence  declares  that  "  the  judges,  both  of  the  supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  behavior."  The 
judges  of  the  superior  courts  of.  Florida  hold  tlieir  offices  for  four 
years.  These  courts,  then,  are  not  constitutional  courts,  in  which 
the  judicial  power  conferred  by  the  Constitution  on  the  general  gov- 
ernment can  be  deposited.  They  are  incapable  of  receiving  it.  They 
are  legislative  courts,  created  in  virtue  of  the  general  right  of  sover- 
eignty which  exists  in  the  government,  or  in  virtue  of  that  clause 
which  enables  Congress  to  make  all  needful  rules  and  regulations 
respecting  the  territory  belonging  to  the  United  States.  The  juris- 
diction with  which  they  are  invested  is  not  a  part  of  that  judicial 
power  which  is  defined  in  the  third  article  of  the  Constitution,  but  is 
conferred  by  Congress,  in  the  execution  of  those  general  powers 
which  that  body  possesses  over  the  Territories  of  the  United  States. 
Although  admiralty  jurisdiction  can  be  exercised  in  the  States  in 
those  courts  only  which  are  established  in  pursuance  of  the  third  article 
of  the  Constitution,  the  same  limitation  does  not  extend  to  the  Terri- 
tories. In  legislating  for  them  Congress  exercises  the  combined 
powers  of  the  general  and  of  a  State  government. 

We  think,  then,  that  the  act  of  the  territorial  legislature  erecting 


<* 


830  THE   GOVERNMENT    OF   THE   TERRITORIES.        [CHAP.  VIII. 

the  court  by  whose  decree  the  cargo  of  the  "  Point  a  Petre  "  was  sold, 
is  not  "inconsistent  with  the  laws  and  Constitution  of  the  United 
States,"  and  is  valid.  Consequently,  the  sale  made  in  pursuance  of 
it  changed  the  property,  and  the  decree  of  the  Circuit  Court,  award- 
ing restitution  of  the  property  to  the  claimant,  ought  to  be  affirmed 
with  costs. ^ 

1  In  Miners'  Bank  v.  Iowa,  12  How.  I  (1851 ),  the  validity  of  an  act  of  the  terri- 
torial legislature  of  Iowa  repealing  the  charter  of  tlie  bank,  which  was  granted  by  the 
territorial  legislature  of  Wisconsin  when  Iowa  was  a  part  of  the  latter  Territory,  was 
in  question.  From  a  judgment  of  the  State  Supreme  Court  against  the  bank,  it  took 
a  writ  of  error  to  the  Supreme  (^ourt  of  the  United  States.  In  rendering  the  opinion 
of  the  court  Mr.  Justice  Daniel  said  :  — 

"  It  has  been  argued  in  this  case,  that,  as  Congress,  in  creating  the  territorial  gov- 
ernments of  Wisconsin  and  Iowa,  reserved  to  themselves  the  power  of  disap])roving 
and  thereby  annulling  the  acts  of  those  governments,  and  had,  in  the  exercise  of  tliat 
power,  stricken  out  several  of  the  provisions  of  the  charter  of  the  Bank  of  Dubuque, 
enacted  by  the  legislature  of  Wisconsin,  assenting  to  the  residue ;  that,  therefore,  tlie 
charter  of  this  bank  should  be  regarded  as  an  act  of  Congress,  rather  than  of  the  terri- 
torial government ;  and  consequently  the  decision  of  the  State  court,  in  favor  of  the 
repealing  law  of  Iowa,  must  be  lield  to  be  one  in  which  was  drawn  in  question  and 
overruled  tlie  validity  of  a  statute  of  or  an  authority  exercised  under  the  United 
States,  and  as  a  decision  also  against  a  right,  title,  or  privilege  set  up  under  a  statute 
of  the  United  States.  Tlie  fallacy  of  this  argument  is  easily  detected.  Congress,  in 
creating  the  territorial  governments,  and  in  conferring  upon  them  powers  of  general 
legislation,  did  not,  from  obvious  principles  of  policy  and  necessity,  ordain  a  suspen- 
sion of  all  acts  proceeding  from  those  powers,  until  expressly  sanctioned  by  themselves, 
wliilst,  for  considerations  equally  strong,  they  reserved  the  power  of  disapproving  or 
annulling  such  acts  of  territorial  legislation  as  might  be  deemed  detrimental.  A 
different  system  of  procedure  would  have  been  fatal  to  all  practical  improvement  in 
those  Territories,  however  urgently  called  for  ;  nay,  might  have  disarmed  them  of  the 
very  power  of  self-preservation.  An  invasion,  or  insurrection,  or  any  other  crisis 
demanding  the  most  strenuous  action,  would  have  had  to  remain  without  preventive 
or  remedy  till  Congress,  if  not  in  session,  could  be  convened,  or,  when  in  session,  must 
have  awaited  its  possibly  procrastinated  aid. 

"  The  argument  would  render,  also,  the  acts  of  the  territorial  governments,  even 
the  most  wholesome  and  necessary,  and  though  indispensably  carried  to  the  extreme 
of  authority,  obnoxious  to  the  charge  of  usurpation  or  criminality.  The  reverse  of 
this  argument,  whilst  it  is  accordant  with  the  investiture  of  general  legislative  power 
in  the  territorial  governments,  places  them  in  the  position  of  usefulness  and  advantage 
towards  those  they  were  bound  to  foster,  and  subjects  them  at  the  same  time  to  proper 
restraints  from  their  superior.  The  charter  of  the  Hank  of  Dubuque,  enacted  in  all 
its  details  and  powers  ever  possessed  by  it  (and  according  to  wiiich  it  was  in  fact 
organized)  by  the  legislature  of  Wisconsin,  must  be  looked  upon  as  the  creature  of 
that  legislature.  To  regard  it,  as  we  are  urged  to  do  by  the  argument  for  the  plain- 
tiff in  error,  would  constitute  it  rather  a  bank  of  the  United  States,  situated  without 
the  United  States,  and  operating  within  the  Territory  of  Wisconsin,  now  the  State  of 
Iowa,  independently  of  the  power  or  local  policy  of  that  State,  and  beyond  tiie  reach 
of  its  faculties  or  obligations  to  be  exerted  for  its  own  citizens.  We  think  that  the 
positions  urged  for  the  plaintiff  in  error  leave  the  objections  to  the  jurisdiction,  as 
above  stated,  in  their  full  force.  W^e  regard  both  the  charter  granted  by  Wisconsin, 
and  the  repeal  of  that  charter  by  Iowa,  alike  as  acts  of  the  territorial  authorities, 
and  not  as  the  acts  of  any  State  of  this  Union;  and  that,  as  such,  this  court  has  no 
power,  by  writ  of  error,  to  take  cognizance  of  them  iu  virtue  of,  and  for  the  objects 
designated  by,  the  25th  section  of  the  Judiciary  Act." 

In  National  Bank  v.  Colntv  of  Yankton,  101  U.  S.  129  (1879),  which  was  an 
action  brought  in  the  court  of  Dakota  Territory  against  a  county  on  bonds  issued  in 


CHAP.  VIII.]  THOMPSON   V.    UTAH.  831 


THOMPSON  V.   UTAH. 

170  United  States,  343.     1898. 

Mr.  Justice  Haklan  delivered  the  opinion  of  the  court. 

By  an  indictment  returned  in  the  District  Court  of  the  Second 
Judicial  District  of  the  Territory  of  Utah,  at  its  May  term,  1895,  — 
that  being  a  court  of  general  jurisdiction, — the  plaintiff  in  error 
and  one  Jack  ]\[oore  were  charged  with  the  crime  of  grand  larceny 
alleged  to  have  been  committed  March  2,  1895,  in  Wayne  County  of 
that  Territory,  by  unlawfully  and  feloniously  stealing,  taking  and 
driving  away  one  calf,  the  property  of  Heber  Wilson. 

aid  of  a  railroad,  it  was  contended  by  defendant  that  the  Territory  had  no  authority  to 
pass  tlie  act  authorizing  tlie  issuance  of  sucli  bonds.  Ou  the  other  hand  it  was  con- 
tended that  an  act  of  Congress  annulling  the  act  of  the  legislature  of  Dakota  Territory, 
except  so  far  as  bonds  were  autliorized  to  be  issued  thereunder  to  a  certain  railroad 
(and  this  description  covered  the  bonds  in  suit),  amounted  to  an  authorization  of  these 
bonds  and  made  them  valid.  Mk.  Chief  Justice  Waite,  rendering  the  opinion  of 
the  court  reversing  the  decision  of  the  Supreme  Court  of  the  Territory,  declared  that 
the  act  of  Congress  above  referred  to  was  a  direct  grant  of  power  by  Congress  to  the 
county  to  issue  the  bonds  in  dispute,  and  continued  :  — 

"  We  do  not  consider  it  necessary  to  decide  whether  the  governor  of  Dakota  had 
authority  to  call  an  extra  session  of  tlie  legislative  assembly,  nor  whether  a  law  passed 
at  such  a  session  or  after  the  limited  term  of  furty  days  liad  expired  would  be  valid, 
because,  ns  we  tliink,  the  act  of  May  27,  1872,  is  equivalent  to  a  direct  grant  of  power 
by  Congress  to  the  county  to  issue  tlie  bonds  in  dispute.  It  is  certainly  now  too  late 
to  doubt  the  power  of  Congress  to  govern  the  'i'erritories.  There  have  been  some 
differences  of  opinion  as  to  the  particular  clause  of  the  Constitution  from  wliich  the 
power  is  derived,  but  that  it  exists  has  always  been  conceded.  The  act  to  adapt  the 
ordinance  to  provide  for  the  government  of  the  Territory  northwest  of  the  river  Ohio 
to  the  requirements  of  the  (Constitution  (1  Stat.  50)  is  chap.  8  of  the  first  session  of 
the  first  Congress,  and  the  ordinance  itself  was  in  force  under  the  confederation  when 
the  Constitution  went  into  effect.  All  territory  within  the  jurisdiction  of  the  Cnited 
States  not  included  in  any  State  must  necessarily  be  governed  by  or  under  tlie  author- 
ity of  Congress.  The  Territories  are  but  political  subdivisions  of  the  outlying 
dominion  of  the  United  States.  Their  relation  to  the  general  government  is  much 
the  same  as  that  which  counties  bear  to  the  respective  States,  and  Congress  may 
legislate  for  them  as  a  State  does  for  its  municipal  organizations.  The  organic  law  or 
a  Territory  takes  the  place  of  a  constitution  as  the  fundamental  law  of  the  local  gov- 
ernment. It  is  obligatory  ou  and  binds  the  territorial  authorities  ;  but  Congress  is 
supreme,  and  for  the  purposes  of  this  department  of  its  govermental  authority  has  all 
the  powers  of  the  people  of  the  United  States,  except  such  as  have  been  expressly  or 
by  implication  reserved  in  the  prohibitions  of  the  Constitution. 

"  In  the  organic  act  of  Dakota  there  was  not  an  express  reservation  of  power  iu 
Congress  to  amend  the  acts  of  the  territorial  legislature,  nor  was  it  necessary.  Such 
a  power  is  an  incident  of  sovereignty,  and  continues  until  granted  away.  Congress 
may  not  only  abrogate  laws  of  the  territorial  legislatures,  but  it  may  itself  legislate 
directly  for  the  local  government.  It  may  make  a  void  act  of  the  territorial  legisla- 
ture valid,  and  a  valid  act  void.  In  other  words,  it  lias  full  and  comjilete  legislative 
authority  over  the  people  of  the  Territories  and  all  the  departments  of  the  territorial 
governments.  It  may  do  for  the  Territories  what  the  people  under  the  Constitution 
of  the  United  States  mav  do  for  the  States." 


832  THE   GOVERNMENT    OP   THE   TERRITORIES.       [CHAP.  VIII. 

The  case  was  first  tried  when  Utah  was  a  Territory,  and  by  a 
jury  composed  of  twelve  persons.  Both  of  the  defendants  were 
found  guilty  as  charged,  and  were  recommended  to  the  mercy  of 
the  court.  A  new  trial  having  been  granted,  the  case  was  removed 
for  trial  to  another  county.  But  it  was  not  again  tried  until  after 
the  admission  of  Utah  into  the  Union  as  a  State. 

At  the  second  trial  the  defendant  was  found  guilty.  He  moved 
for  a  new  trial  upon  the  ground  among  others  that  the  jury  that 
tried  him  was  composed  of  only  eight  jurors;  whereas  by  the  law 
in  force  at  the  time  of  the  commission  of  the  alleged  offence  a  law- 
ful jury  in  his  case  could  not  be  composed  of  less  than  twelve  jurors. 
The  application  for  a  new  trial  having  been  overruled,  and  the  ac- 
cused having  been  called  for  sentence,  he  renewed  his  objection  to 
the  composition  of  the  jury,  and  moved  by  counsel  that  the  verdict 
be  set  aside  and  another  trial  ordered. 

This  objection  was  overruled,  the  accused  duly  excepting  to  the 
action  of  the  court.  He  was  then  sentenced  to  the  State  prison  for 
the  term  of  three  years.  The  judgment  of  conviction  was  affirmed 
by  the  Supreme  Court  of  Utah,  the  court  holding  that  the  trial  of 
the  accused  by  a  jury  composed  of  eight  persons  was  consistent  with 
the  Constitution  of  the  United  States. 

By  the  statutes  of  the  Territory  of  Utah  in  force  at  the  time  of 
the  commission  of  the  alleged  offence  it  was  provided  that  a  trial 
jury  in  a  District  Court  should  consist  of  twelve,  and  in  a  justice's 
court  of  six,  persons,  unless  the  parties  to  the  action  or  proceeding, 
in  other  than  criminal  cases,  agreed  upon  a  less  number;  that  a 
felony  was  a  crime  punishable  with  death  or  by  imprisonment  in 
the  penitentiary,  every  other  crime  being  a  misdemeanor;  that  the 
stealing  of  a  calf  was  grand  larceny  and  punishable  by  confinement 
in  a  penitentiary  for  not  less  than  one  nor  more  than  ten  years ; 
that  no  person  should  be  convicted  of  a  public  offence  unless  by  the 
verdict  of  a  jury,  accepted  and  recorded  by  the  court,  or  upon  a  plea 
of  guilty,  or  upon  judgment  against  him  upon  a  demurrer,  or  upon 
the  judgment  of  a  court,  a  jury  having  been  waived  in  a  criminal 
action  not  amounting  to  a  felony ;  and  that  issues  of  fact  should  be 
tried  by  jury,  unless  a  trial  in  that  mode  was  waived  in  criminal 
cases  not  amounting  to  a  felony  by  the  consent  of  both  parties  ex- 
pressed  in  open  court  and  entered  in  its  minutes.  2  Comp.  Laws, 
Utah,  1888,  §§  3065,  4380,  4643,  4644,  4790,  4997. 

By  the  constitution  of  the  State  of  Utah  it  is  provided :  "  In 
capital  cases  the  right  of  trial  by  jury  shall  remain  inviolate.  In 
courts  of  general  jurisdiction,  except  in  capital  cases,  a  jury  shall 
consist  of  eight  jurors.  In  courts  of  inferior  jurisdiction  a  jury  shall 
consist  of  four  jurors.  In  criminal  cases  the  verdict  shall  be  unani- 
mous." Const,  art.  1,  sec.  10.  Also:  "All  criminal  prosecutions 
and  penal  actions  which  may  have  arisen  or  which  may  arise  before 
the  change  from  a  territorial  to  a  state  government,  and  which  shall 


CHAP.  VIII.]  THOMPSON    V.    UTAH.  833 

then  be  pending,  shall  be  prosecuted  to  judgment  and  execution  in 
the  name  of  the  State,  and  in  the  court  having  jurisdiction  thereof. 
All  offences  committed  against  the  laws  of  the  Territory  of  Utah, 
before  the  change  from  a  territorial  to  a  state  government,  and 
which  shall  not  have  been  prosecuted  before  such  change,  may  be 
prosecuted  in  the  name  and  by  the  authority  of  the  State  of  Utah, 
with  like  effect,  as  though  such  change  had  not  taken  place,  and  all 
penalties  incurred  shall  remain  the  same,  as  if  this  constitution  had 
not  been  adopted."     Const,  art.  24,  sec.  6. 

As  the  offence  of  which  the  plaintiff  in  error  was  convicted  was  a 
felony,  and  as  by  the  law  in  force  when  the  crime  was  committed  he 
could  not  have  been  tried  by  a  jury  of  a  less  number  than  twelve 
jurors,  the  question  is  presented  whether  the  provision  in  the  con- 
stitution of  Utah,  providing  for  a  jury  of  eight  persons  in  courts  of 
general  jurisdiction,  except  in  capital  cases,  can  be  made  applicable 
to  a  felony  committed  within  the  limits  of  the  State  while  it  was  a 
Territory,  without  bringing  that  provision  into  conflict  with  the 
clause  of  the  Constitution  of  the  United  States  prohibiting  the  pas- 
sage by  any  State  of  an  ex  jwst  facfo  law. 

The  Constitution  of  the  United  States  provides  :  "  The  trial  of 
all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jur}';  and 
such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed,  but  when  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed."  Art.  3,  sec.  2.  And  by  the  Sixth  Amendment  of 
the  Constitution  it  is  declared:  *''In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial,  b}?-  an 
impartial  jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation  ;  to  be  confronted  with  the  witnesses  against  him ;  to 
have  compulsory  process  for  obtaining  \yitnesses  in  his  favor,  and 
to  have  the  assistance  of  counsel  for  his  defence." 

That  the  provisions  of  the  Constitution  of  the  United  States  re- 
lating to  the  right  of  trial  by  jury  in  suits  at  common  law  apply  to 
the  Territories  of  the  United  States  is  no  longer  an  open  question. 
Webster  v.  Reid,  11  How.  437,  460;  American  Publishing  Co.  v. 
Fisher,  1G6  U.  S.  464,  468;  Springville  v.  Thomas,  166  U.  S.  707. 
In  the  last  named  case  it  was  claimed  that  the  territorial  legislature 
of  Utah  was  empowered  by  the  organic  act  of  the  Territory  of  Sep- 
tember 9,  1850,  9  Stat.  453,  c.  51,  §  6,  to  provide  that  unanimity  of 
action  on  the  part  of  jurors  in  civil  cases  was  not  necessary  to  a 
valid  verdict.  This  court  said:  "In  our  opinion  the  Seventh 
Amendment  secured  unanimity  in  finding  a  verdict  as  an  essential 
feature  of  trial  by  jury  in  common-law  cases,  and  the  act  of  Con- 
gress could  not  impart  the  power  to  change  the  constitutional  rule^ 
and  could  not  be  treated  as  attempting  to  do  so." 

53 


834  THE   GOVERNMENT   OF   THE  TERRITORIES.        [CHAP.  VIII, 

It  is  equally  beyond  question  that  the  provisions  of  the  national 
Constitution  relating  to  trials  by  jury  for  crimes  and  to  criminal 
prosecutions  apply  to  the  Territories  of  the  United  States. 

The  judgment  of  this  court  in  Reynolds  v.  United  States,  98  U.  S. 
145,  154,  which  was  a  criminal  prosecution  in  the  Terrritory  of  Utah, 
assumed  that  the  Sixth  Amendment  applied  to  criminal  prosecu- 
tions in  that  Territory. 

In  Callan  v.  Wilson,  127  U.  S.  540,  548,  551,  which  was  a  criminal 
prosecution  by  information  in  the  Police  Court  of  the  District  of 
Columbia,  the  accused  claimed  that  the  right  of  trial  by  jury  was 
secured  to  him  by  the  Third  Article  of  the  Constitution  as  well  as 
by  the  Fifth  and  Sixth  Amendments.  The  contention  of  the  gov- 
ernment was  that  the  Constitution  did  not  secure  the  right  of  trial 
by  jury  to  the  people  of  the  District  of  Columbia,  that  the  original 
provision,  that  when  a  crime  was  not  committed  within  any  State 
"the  trial  shall  be  at  such  place  or  places  as  the  Congress  may  by 
law  have  directed,"  had,  probably,  reference  only  to  offences  com- 
mitted on  the  high  seas ;  that,  in  adopting  the  Sixth  Amendment, 
the  people  of  the  States  were  solicitous  about  trial  b}-  jury  in  the 
States  and  nowhere  else,  leaving  it  entirely  to  Congress  to  declare 
in  what  way  persons  should  be  tried  who  might  be  accused  of  crime 
on  the  high  seas  and  in  the  District  of  Columbia  and  in  places  to  be 
thereafter  ceded  for  the  purposes  respectively  of  a  seat  of  Govern- 
ment, forts,  magazines,  arsenals,  and  dockyards ;  and,  consequent!}', 
that  that  amendment  should  be  deemed  to  have  superseded  so  much 
of  the  third  article  of  the  Constitution  as  related  to  the  trial  of 
crimes  by  jury.  That  contention  was  overruled,  this  court  saying: 
"As  the  guarantee  of  a  trial  by  jury,  in  the  third  article,  implied 
a  trial  in  that  mode  and  according  to  the  settled  rules  of  the  com- 
mon law,  the  enumeration,  in  the  Sixth  Amendment,  of  the  rights 
of  the  accused  in  criminal  prosecutions,  is  to  be  taken  as  a  declara- 
tion of  what  those  rules  were,  and  is  to  be  referred  to  the  anxiety 
of  the  people  of  the  States  to  have  in  the  supreme  law  of  the  land, 
and  so  far  as  the  agencies  of  the  general  government  were  con- 
cerned, a  full  and  distinct  recognition  of  those  rules,  as  involving 
the  fundamental  rights  of  life,  liberty,  and  property.  This  recog- 
nition "was  demanded  and  secured  for  the  benefit  of  all  the  people 
of  the  United  States,  as  well  those  permanently  or  temporarily  re- 
siding in  the  District  of  Columbia,  as  those  residing  or  being  in  the 
several  States.  There  is  nothing  in  the  history  of  the  Constitution 
or  of  the  original  amendments  to  justify  the  assertion  that  the 
people  of  this  District  may  be  lawfully  deprived  of  the  benefit  of 
any  of  the  constitutional  guarantees  of  life,  liberty,  and  property  — 
especially  of  the  privilege  of  trial  by  jury  in  criminal  cases."  "We 
cannot  think,"  the  court  further  said,  "that  the  people  of  this 
District  have,  in  that  regard,  less  rights  than  those  accorded  to  the 
people  of  the  Territories  of  the  United  States." 


CKAP.  VIII.]  THOMPSON   V.    UTAH.  835 

In  jNIormoii  Church  v.  United  States,  136  U.  S.  1,  44,  one  of  the 
questions  considered,  was  the  extent  of  the  authority  which  the 
United  States  might  exercise  over  the  Territories  and  their  inhabi- 
tants. In  the  opinion  of  Mr.  Justice  Bradley  reference  was  made 
to  previous  decisions  of  this  court,  in  one  of  which,  National 
Bank  v.  County  of  Yankton,  101  U.  S.  129,  133,  it  was  said  that 
Congress,  in  virtue  of  the  sovereignty  of  the  United  States,  could 
not  only  abrogate  the  laws  of  the  territorial  legislatures,  but  may 
itself  legislate  directly  for  the  local  government;  that  it  could  make 
a  void  act  of  the  territorial  legislature  valid,  and  a  valid  act  void; 
that  it  had  full  and  complete  legislative  authority  over  the  people  of 
the  Territories  and  all  the  departments  of  the  territorial  govern- 
ments ;  that  it  "  may  do  for  the  Territories  what  the  people,  under 
the  Constitution  of  the  United  States,  may  do  for  the  States." 
Keference  was  also  made  to  jNIurphy  v.  Kamsey,  114  U.  S.  15,  44, 
in  which  it  was  said:  "The  people  of  the  United  States,  as  sove- 
reign owners  of  the  national  Territories,  have  supreme  power  over 
them  and  their  inhabitants.  In  the  exercise  of  this  sovereign  do- 
minion, they  are  represented  by  the  government  of  the  United 
States,  to  whom  all  the  powers  of  government  over  that  subject 
have  been  delegated,  subject  only  to  such  restrictions  as  are  ex- 
pressed in  the  Constitution,  or  are  necessarily  implied  in  its  terms." 
The  opinion  of  the  court  in  Mormon  Church  v.  United  States  then 
proceeded :  "  Doubtless  Congress,  in  legislating  for  the  Territories, 
would  be  subject  to  those  fundamental  limitations  in  favor  of  per- 
sonal rights  which  are  formulated  in  the  Constitution  and  its  amend- 
ments;  but  these  limitations  would  exist  rather  by  inference  and  the 
general  spirit  of  the  Constitution  from  which  Congress  derives  all 
its  powers,  than  by  any  express  and  direct  application  of  its  pro- 
visions. The  supreme  power  of  Congress  over  the  Territories  and 
over  the  acts  of  the  territorial  legislatures  established  therein  is 
generally  expressly  reserved  in  the  organic  acts  establishing  govern- 
ments in  said  Territories.  This  is  true  of  the  Territory  of  Utah. 
In  the  sixth  section  of  the  act  establishing  a  territorial  government 
in  Utah,  approved  September  9,  1850,  it  is  declared  'that  the  legis- 
lative powers  of  said  Territory  shall  extend  to  all  rightful  subjects 
of  legislation,  consistent  with  the  Constitution  of  the  United  States 
and  the  provisions  of  this  act.  .  .  .  All  the  laws  passed  by  the 
legislative  assembly  and  governor  shall  be  submitted  to  the  Con- 
gress of  the  United  States,  and  if  disapproved  shall  be  null  and  of 
no  effect.'     9  Stat.  454." 

Assuming  then  that  the  provisions  of  the  Constitution  relating  to 
trials  for  crimes  and  to  criminal  prosecutions  apply  to  the  Territories 
of  the  United  States,  the  next  inquiry  is  whether  the  jury  referred 
to  in  the  original  Constitution  and  in  the  Sixth  Amendment  is  a  jury 
constituted,  as  it  was  at  common  law,  of  twelve  persons,  neither 
more  nor  less.     2  Hale's  P.  C.  161  ;  1  Chitty's  Cr.  Law,  505.     This 


836  THE   GOVERNMENT   OF   THE   TERRITORIES.        [CHAP.  VIII. 

question  must  be  answered  in  the  affirmative.  When  Magna  Charta 
declared  that  no  freeman  should  be  deprived  of  life,  &c.,  "  but  by 
the  judgment  of  his  peers  or  by  the  law  of  the  land,"  it  referred  to 
a  trial  by  twelve  jurors.  Those  who  emigrated  to  this  country  from 
England  brought  with  them  this  great  privilege  "as  their  birthright 
and  inheritance,  as  a  part  of  that  admirable  common  law  which  had 
fenced  around  and  interposed  barriers  on  every  side  against  the  ap- 
proaches of  arbitrary  power."  2  Story's  Const.  §  1779.  In  Bacon's 
Abridgment,  title  Juries,  it  is  said :  "  The  trial  per  pais,  or  by  a  jury 
of  one's  country,  is  justly  esteemed  one  of  the  principal  excellencies 
gf  our  Constitution  ;  for  what  greater  security  can  any  person  have 
in  his  life,  liberty,  or  estate,  than  to  be  sure  of  not  being  divested  of, 
or  injured  in,  any  of  these,  without  the  sense  and  verdict  of  twelve 
honest  and  impartial  men  of  his  neighborhood  ?  And  hence  we 
find  the  common  law  herein  confirmed  by  Magna  Charta."  So,  in 
1  Hale's  P.  C.  33  :  "  The  law  of  England  hath  afforded  the  best 
method  of  trial,  that  is  possible,  of  this  and  all  other  matters  of  fact, 
namely,  by  a  jury  of  twelve  men  all  concurring  in  the  same  judg- 
ment, by  the  testimony  of  witnesses  viva  voce  in  the  presence  of  the 
judge  and  jury,  and  by  the  inspection  and  direction  of  the  judge." 
It  must  consequently  be  taken  that  the  word  "jury  "  and  the  words 
"trial  by  jury  "  were  placed  in  the  Constitution  of  the  United  States 
with  reference  to  the  meaning  affixed  to  them  in  the  law  as  it  was 
in  this  country  and  in  England  at  the  time  of  the  adoption  of  that 
instrument ;  and  that  when  Thompson  committed  the  offence  of 
grand  larceny  in  the  Territory  of  Utah  —  which  was  under  the  com- 
plete jurisdiction  of  the  United  States  for  all  purposes  of  govern- 
ment and  legislation  —  the  supreme  law  of  the  land  required  that 
he  should  be  tried  by  a  jury  composed  of  not  less  than  twelve  per- 
sons. And  such  was  the  requirement  of  the  statutes  of  Utah  while 
it  was  a  Territory. 

Was  it  then  competent  for  the  State  of  Utah,  upon  its  admission 
into  the  Union,  to  do  in  respect  of  Thompson's  crime  what  the 
United  States  could  not  have  done  while  Utah  was  a  Territory, 
namely,  to  provide  for  his  trial  by  a  jury  of  eight  persons  ? 

We  are  of  opinion  that  the  State  did  not  acquire  upon  its  admis- 
sion into  the  Union  the  power  to  provide,  in  respect  of  felonies  com- 
mitted within  its  limits  while  it  was  a  Territory,  that  they  should 
be  tried  otherwise  than  by  a  jury  such  as  is  provided  by  the  Con- 
stitution of  the  United  States.  When  Thompson's  crime  was  com- 
mitted, it  was  his  constitutional  right  to  demand  that  his  liberty 
should  not  be  taken  from  him  except  by  the  joint  action  of  the 
court  and  the  unanimous  verdict  of  a  jury  of  twelve  persons.  To 
hold  that  a  State  could  deprive  him  of  his  liberty  by  the  concurrent 
action  of  a  court  and  eight  jurors,  would  recognize  the  power  of  the 
State  not  only  to  do  what  the  United  States  in  respect  of  Thomp- 
son's crime  could  not,  at  any  time,  have  done  by  legislation,  but  to 


CHAP.  VIII.]  THOMPSON   V.   UTAH.  837 

take  from  the  accused  a  substantial  right  belonging  to  him  when 
the  offence  was  committed. 

In  our  opinion,  the  provision  in  the  constitution  of  Utah  providing 
for  the  trial  in  courts  of  general  jurisdiction  of  criminal  cases,  not 
capital,  by  a  jury  composed  of  eight  persons,  is  ex  jjost  facto  in  its 
application  to  felonies  committed  before  the  Territory  became  a 
State,  because  in  resj^ect  of  such  crimes  the  Constitution  of  the 
United  States  gave  the  accused,  at  the  time  of  the  commission  of 
his  offence,  the  right  to  be  tried  by  a  jury  of  twelve  persons,  and 
made  it  impossible  to  deprive  him  of  his  liberty  except  by  the 
unanimous  verdict  of  such  a  jury. 

The  judgment  is  reversed  and   the  cause  is  remanded  for  fur- 
ther proceedings  not  inconsistent  with  this  opinion. 

Mk.  Justice  Brewer  and  Mr.  Justice  Peckham  dissented. 

[Later  cases  as  to  the  effect  of  the  annexation  of  territory  to  the 
United  States  are  given  in  Appendix  B,  p.  1119.] 


838  THE   ADMISSION   OF  NEW   STATES.  [CHAP.  IX. 


CHAPTER  IX. 
THE  ADMISSION  OF  NEW    STATES. 


BOYD  V.   THAYER. 

143  Uuited  States,  135.     1892. 
[See  this  case,  supra,  p.  423.] 


TEXAS   V.  WHITE. 

7  Wallace,  700.     1868. 

[This  was  an  original  suit  in  the  Supreme  Court  to  restrain  de- 
fendants from  receiving  from  the  United  States  the  proceeds  of 
certain  bonds  issued  by  the  United  States  to  Texas  in  1851  in  settle- 
ment of  certain  boundary  disputes,  and  transferred  to  defendants  by 
persons  claiming  to  represent  the  State  after  her  secession  from  the 
Union  and  during  her  connection  with  the  so-called  Confederacy.  In 
1867  this  suit  was  brought  under  authority  of  the  reconstructed  State 
government.  Defendants  question  the  right  of  Texas,  after  having 
attempted  to  throw  off  her  allegiance  to  the  government  of  the  United 
States,  to  sue  as  a  State  of  the  Union.  The  court  holds  that  Texas 
did  not,  by  attempted  acts  of  secession,  cease  to  be  a  State  of  the 
Union,  and  then  continues.] 

Mr.  Justice  Chasp:  delivered  the  opinion  of  the  court. 

But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in  this 
court,  there  needs  to  be  a  State  government,  competent  to  represent 
the  State  in  its  relations  with  the  national  government,  so  far  at  least 
as  the  institution  and  prosecution  of  a  suit  is  concerned. 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises  which 
we  have  endeavored  to  establish,  that  the  governmental  relations  of 
Texas  to  the  Union  remained  unaltered.  Obligations  often  remain 
unimpaired,  while  relations  are  greatly  changed.  The  obligations 
of  allegiance  to  the  State,  and  of  obedience  to  her  laws,  subject  to 
the  Constitution  of  the  Uuited  States,  are  binding  upon  all  citizens, 


CHAP.  IX.]  TEXAS    V.    WHITE.  .839 

■whether  faithful  or  unfaithful  to  them ;  but  the  relations  which  sub- 
sist while  these  obligations  are  performed  are  essentially  different  from 
those  which  arise  when  they  are  disregarded  and  set  at  nought.  And 
the  same  must  necessarily  be  true  of  the  obligations  and  relations  of 
States  and  citizens  to  the  Union.  No  one  has  been  bold  enough  to 
contend  that,  while  Texas  was  controlled  by  a  government  hostile 
to  the  United  States,  and  in  affiliation  with  a  hostile  confederation, 
waging  war  upon  the  United  States,  senators  chosen  by  her  legisla- 
ture, or  representatives  elected  by  her  citizens,  were  entitled  to  seats 
in  Congress ;  or  that  any  suit,  instituted  in  her  name,  could  be  enter- 
tained in  this  court.  AH  admit  that,  during  this  condition  of  civil 
war,  tlie  rights  of  the  State  as  a  member,  and  of  her  people  as  citizens 
of  the  Union,  were  suspended.  The  government  and  the  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations, 
assumed  the  character  of  enemies,  and  incurred  the  consequences 
of  rebellion. 

These  new  relations  imposed  new  duties  upon  the  United  States. 
The  first  was  that  of  suppressing  the  rebellion.  The  next  was  that 
of  re-establishing  the  broken  relations  of  the  State  with  the  Union. 
The  first  of  these  duties  having  been  performed,  the  next  necessarily 
engaged  the  attention  of  the  national  government. 

The  authority  for  the  performance  of  the  first  had  been  found  in 
the  power  to  suppress  insurrection  and  carry  on  war;  for  the  per- 
formance of  the  second,  authority  was  derived  from  the  obligation  of 
the  United  States  to  guarantee  to  every  State  in  the  Union  a  repub- 
lican form  of  government.  The  latter,  indeed,  in  the  case  of  a  rebel- 
lion which  involves  the  government  of  a  State,  and  for  the  time 
excludes  the  national  authority  from  its  limits,  seems  to  be  a  neces- 
sary complement  to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration.  When 
the  war  closed  there  was  no  government  in  the  State  except  that 
which  had  been  organized  for  the  purpose  of  waging  war  against  the 
United  States.  That  government  immediately  disappeared.  The 
chief  functionaries  left  the  State.  Many  of  the  subordinate  officials 
followed  their  example.  Legal  responsibilities  were  annulled  or 
greatly  impaired.  It  was  inevitable  that  great  confusion  should 
prevail.  If  order  was  maintained,  it  was  where  the  good  sense  and 
virtue  of  the  citizens  gave  support  to  local  acting  magistrates,  or 
supplied  more  directly  the  needful  restraints. 

A  good  social  change  increased  the  difficulty  of  the  situation. 
Slaves,  in  the  insurgent  States,  with  certain  local  exceptions,  had 
been  declared  free  by  the  Pi'oclamation  of  Emancipation  ;  and  what- 
ever questions  might  be  made  as  to  the  effect  of  that  act,  under  the 
Constitution,  it  was  clear,  from  the  beginning,  that  its  practical  opera- 
tion, in  connection  with  legislative  acts  of  like  tendency,  must  be 
complete  enfranchisement.  Wherever  the  national  forces  obtained 
control,  the  slaves  became  freemen.     Support  to  the  acts  of  Congress 


840  THE    ADMISSION    OF    NEW    STATES.  [CHAP.  IX. 

and  the  proclamation  of  the  President,  concerning  slaves,  was  made 
a  condition  of  amnesty  (13  Stat,  at  Large,  737)  by  President  Lincoln, 
in  December,  1SC3,  and  by  President  Johnson,  in  jNIay,  1865  (13  Stat. 
at  Large,  758).  And  emancipation  was  confirmed,  rather  than  or- 
dained, in  the  insurgent  States,  by  the  amendment  to  the  Constitution 
prohibiting  slavery  throughout  the  Union,  which  was  proposed  by 
Congress  in  February,  1865,  and  ratified,  before  the  close  of  the  fol- 
lowing autumn,  by  the  requisite  three-fourths  of  the  States  (13  Stat. 
at  Large,  774,  775). 

The  new  freemen  necessarily  became  part  of  the  people,  and  the 
people  still  constituted  the  State  ;  for  States,  like  individuals,  retain 
their  identity,  though  changed  to  some  extent  in  their  constituent 
elements.  And  it  was  the  State,  thus  constituted,  which  was  now 
entitled  to  the  benefit  of  the  constitutional  guaranty. 

There  being  then  no  government  in  Texas  in  constitutional  rela- 
tions with  the  Union,  it  became  the  duty  of  the  United  States  to 
provide  for  the  restoration  of  such  a  government.  But  the  restora- 
tion of  the  government  which  existed  before  the  rebellion,  without  a 
new  election  of  officers,  was  obviously  impossible ;  and  before  any 
such  election  could  be  properly  held,  it  was  necessary  that  the  old 
constitution  should  receive  such  amendments  as  would  conform  its 
provisions  to  the  new  conditions  created  by  emancipation,  and  afford 
adequate  security  to  the  people  of  the  State. 

In  the  exercise  of  the  power  conferred  by  the  guaranty  clause,  as 
in  the  exercise  of  every  other  constitutional  powder,  a  discretion  in 
the  choice  of  means  is  necessarily  allowed.  It  is  essential  only  that 
the  means  must  be  necessary  and  proper  for  carrying  into  execution 
the  power  conferred,  through  the  restoration  of  the  State  to  its  con- 
stitutional relations,  under  a  republican  form  of  government,  and  that 
no  acts  be  done,  and  no  authority  exerted,  which  is  either  prohibited 
or  unsanctioned  b}'  the  Constitution. 

It  is  not  important  to  review,  at  length,  the  measures  which  have 
been  taken,  under  this  power,  by  the  executive  and  legislative  depart- 
ments of  the  national  government.  It  is  proper,  however,  to  observe 
that  almost  immediately  after  the  cessation  of  organized  hostilities, 
and  while  the  war  yet  smouldered  in  Texas,  the  President  of  the 
United  States  issued  his  proclamation  appointing  a  pi'ovisional  gov- 
ernor for  the  State,  and  providing  for  the  assembling  of  a  convention, 
with  a  view  to  the  re-establishment  of  a  republican  government, 
under  an  amended  constitution,  and  to  the  restoration  of  the  State  to 
her  proper  constitutional  relations.  A  convention  was  accordingly 
assembled,  the  constitution  amended,  elections  held,  and  a  State 
government,  acknowledging  its  obligations  to  the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted  by 
the  Constitution,  it  is  not  now  necessary  to  determine.  The  power 
exercised  by  the  President  was  supposed,  doubtless,  to  be  derived 
from  his   constitutional  functions,  as  commander-in-chief ;    and,  so 


CHAP.  IX.]  TEXAS   V.   WHITE.  841 

long  as  the  war  continued,  it  cannot  be  denied  that  he  might  institute 
temporary  government  withiu  insurgent  districts,  occupied  by  the 
national  forces,  or  take  measures,  in  any  State,  for  the  restoration  of 
State  government  faithful  to  the  Union,  employing,  however,  in  such 
efforts,  only  such  means  and  agents  as  were  authorized  by  constitu- 
tional laws. 

But  the  power  to  carry  into  effect  the  clause  of  guaranty  is  pri- 
marily a  legislative  power,  and  resides  in  Congress.  "Under  the 
fourth  article  of  the  Constitution,  it  rests  with  Congress  to  decide 
what  government  is  the  established  one  in  a  State.  For,  as  the 
United  States  guarantee  to  each  State  a  republican  government, 
Congress  must  necessarily  decide  what  government  is  established  in 
the  State,  before  it  can  determine  whether  it  is  republican  or  not." 

This  is  the  language  of  the  late  Chief  Justice,  speaking  for  this 
court,  in  a  case  from  Khode  Island  (Luther  v.  Borden,  7  How.  42), 
arising  from  the  oi-ganization  of  opposing  governments  in  that  State. 
And  we  think  that  the  principle  sanctioned  by  it  may  be  applied, 
with  even  more  propriety,  to  the  case  of  a  State  deprived  of  all  right- 
ful government,  by  revolutionary  violence  ;  though  necessarily  limited 
to  cases  where  the  rightful  government  is  thus  subverted,  or  in  immi- 
nent danger  of  being  overthrown  by  an  opposing  government,  set  up 
by  force  within  the  State. 

The  action  of  the  President  must,  therefore,  be  considered  as  pro- 
visional, and,  in  that  light,  it  seems  to  have  been  regarded  by  Con- 
gress. It  was  taken  after  the  term  of  the  38th  Congress  had  expired. 
The  39th  Congress,  which  assembled  in  December,  18G5,  followed  by 
the  40th  Congress,  which  met  in  March,  1867,  proceeded,  after  long 
deliberation,  to  adopt  various  measures  for  reorganization  and  restora- 
tion. These  measures  were  embodied  in  proposed  amendments  to  the 
Constitution,  and  in  the  acts  known  as  the  Reconstruction  Acts,  which 
hav^e  been  so  far  carried  into  effect,  that  a  majority  of  the  States 
which  were  engaged  in  the  rebellion  have  been  restored  to  their  con- 
stitutional relations,  under  forms  of  government  adjudged  to  be  re- 
publican by  Congress,  through  the  admission  of  their  "Senators  and 
Representatives  into  the  councils  of  the  Union." 

Nothing  in  the  case  before  us  requires  the  court  to  pronounce  judg- 
ment upon  the  constitutionality  of  any  particular  provision  of  these 
acts. 

But  it  is  important  to  observe  that  these  acts  themselves  show 
that  the  governments  which  had  been  established  and  had  been  in 
actual  operation  under  executive  direction  were  recognized  by  Con- 
gress as  provisional,  as  existing,  and  as  capable  of  continuance. 

By  the  act  of  March  2,  1867,  14  Stat,  at  Large,  428,  the  first  of  the 
series,  these  governments  were,  indeed,  pronounced  illegal  and  were 
subjected  to  military  control,  and  were  declared  to  be  provisional 
only;  and  by  the  supplementary  act  of  July  3  9,  1867,  the  third  of 
the  series,  it  was  further  declared  that  it  was  the  true  intent  and 


842  THE   ADMISSION    OF    NEW   STATES.  [CHAP.  IX 

meaning  of  the  act  of  March  2  that  the  governments  then  existing 
were  not  legal  State  governments,  and  if  continued,  were  to  be  con- 
tinued subject  to  the  military  commanders  of  the  respective  districts 
and  to  the  paramount  authority  of  Congress.  We  do  not  inquire  here 
into  the  constitutionality  of  this  legislation  so  far  as  it  relates  to 
military  authority,  or  to  the  paramount  authority  of  Congress.  It 
suffices  to  say,  that  the  terms  of  the  acts  necessarily  imply  recogni- 
tion of  actually  existing  governments ;  and  that  in  point  of  fact  the 
governments  thus  recognized,  in  some  important  respects,  still  exist. 

What  has  thus  been  said  generally  describes,  with  sufficient  accu- 
racy, the  situation  of  Texas.  A  provisional  governor  of  the  State 
was  appointed  by  the  President  in  1865;  in  1866  a  governor  was 
elected  by  the  people  under  the  constitution  of  that  year ;  at  a  subse- 
quent date  a  governor  was  appointed  by  the  commander  of  the  dis- 
trict. Each  of  the  three  exercised  executive  functions  and  actually 
represented  the  State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prosecution 
of  the  suit,  and  we  find  no  difficulty,  without  investigating  the  legal 
title  of  either  to  the  executive  office,  in  holding  that  the  sanction  thus 
given  sufficiently  warranted  the  action  of  the  solicitor  and  counsel  in 
behalf  of  the  State.  The  necessary  conclusion  is  that  the  suit  was 
instituted  and  is  prosecuted  by  competent  authority.  [The  court 
holds  that  the  transfer  of  these  bonds  to  defendants  was  without 
authority,  and  grants  the  relief  sought  by  the  bill.]^ 


SANDS   V.    MANISTEE  KIVER  IMPROVEMENT    COMPANY. 

123  United  States,  288.     1887. 

[Plaintiff  below,  a  corporation  chartered  under  the  laws  of  Michi- 
gan to  improve  the  Manistee  River,  a  stream  wholly  within  the  State, 
brought  action  in  the  State  court  to  collect  tolls.  Defendant  claimed 
that  the  statute  authorizing  plaintiff  to  collect  such  tolls  was  uncon- 
stitutional, on  the  ground  that  it  impaired  the  obligation  of  the 
contract  contained  in  the  Ordinance  of  1787,  "  for  the  government  of 
the  territory  of  the  United  States  northwest  of  the  river  Ohio,"  giv- 
ing to  the  people  of  that  territory  the  right  to  the  free  use  of  the 
na°vigable  waters,  &c.,  and  declaring  such  stipulation,  with  others, 
a  compact  between  the  original  States  and  the  people  and  States 
within  such  territory,  unalterable  save  by  common  consent.  Judg- 
ment having  been  rendered  against  defendant  and  affirmed  in  the 
State  Supreme  Court,  defendant  brings  up  the  case  on  writ  of  error.] 

1  Mr.  JrsTicE  Grier  delivered  a  dissenting  opinion,  in  which  Mr.  Justice  Swaynd 
and  Mr.  Justice  Miller  concurred. 


CHAP.  IX.]        SANDS   V.   MANISTEE   RIVER   IMPROVEMENT   CO.  843 

Mr.  Justice  Field  delivered  the  opiuiou  of  the  court. 

There  was  no  contract  in  the  fourth  article  of  the  Ordinance  of 
1787  respecting  the  freedom  of  the  navigable  waters  of  the  territory 
northwest  of  the  Ohio  River  emptying  into  the  St.  Lawrence,  which 
bound  the  people  of  the  territory,  or  of  any  portion  of  it,  when  sub- 
sequently formed  into  a  State  and  admitted  into  the  Union. 

The  Ordinance  of  1787  was  passed  a  year  and  some  months  before 
the  Constitution  of  the  United  States  went  into  operation.  Its 
framers,  and  the  Congress  of  the  confederation  which  passed  it,  evi- 
dently  considered  that  the  principles  and  declaration  of  rights  and 
privileges  expressed  in  its  articles  would  always  be  of  binding  obli- 
gation upon  the  people  of  the  territory.  The  ordinance  in  terms 
ordains  and  declares  that  its  articles  "  shall  be  considered  as  articles 
of  compact  between  the  original  States  and  the  people  and  States  in 
the  said  territory,  and  forever  remain  unalterable  unless  by  common 
consent."  And  for  many  years  after  the  adoption  of  the  Constitution 
its  provisions  were  treated  by  various  acts  of  Congress  as  in  force, 
except  as  modified  by  such  acts.  In  some  of  the  acts  organizing 
portions  of  the  territory  under  separate  territorial  governments  it  is 
declared  that  the  rights  and  privileges  granted  by  the  ordinance  are 
secured  to  the  inhabitants  of  those  territories.  Yet  from  the  very 
conditions  on  which  the  States  formed  out  of  that  territory  were 
admitted  into  the  Union,  the  provisions  of  the  ordinance  became 
inoperative  except  as  adopted  by  them.  All  the  States  thus  formed 
were,  iu  the  language  of  the  resolutions  or  acts  of  Congress,  "  ad- 
mitted into  the  Union  on  an  equal  footing  with  the  original  States 
in  all  resjjects  whatever."  Michigan,  on  her  admission,  became, 
therefore,  entitled  to  and  possessed  of  all  the  rights  of  sovereignty 
and  dominion  which  belonged  to  the  original  States,  and  could  at 
any  time  afterwards  exercise  full  control  over  its  navigable  waters 
except  as  restrained  by  the  Constitution  of  the  United  States  and 
laws  of  Congress  passed  in  pursuance  thereof.  Permoli  v.  First 
Municipality  of  New  Orleans,  3  How.  589,  600 ;  Pollard  v.  Hagan, 
3  How.  212;  Escanaba  Co.  v.  Chicago,  107  U.  S.  678,688;  Van 
Brocklin  v.  Tennessee,  117  U.  S.  151,  159 ;  Huse  v.  Glover,  119  U.  S. 
543,  546. 

The  judgment  of  the  Supreme  Court  of  Michigan  must  be  affirmed ; 
and  it  is  so  ordered. 


844  CONbTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 


CHAPTER   X. 
CONSTITUTIONAL  RULES  OF   STATE   COMITY. 


Section  I.  —  Faith    and    Credit    to    be    given    to   Acts, 
Records,  and  Judgments  of  Ainother  State. 


THOMPSON   V.WHITMAN. 

18  Wallace,  457.     1873. 

[Whitman,  a  citizen  of  New  York,  sued  Thompson,  a  citizen  of 
New  Jersey,  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York,  for  trespass  committed  by  the  de- 
fendant, as  sheriff  of  Monmouth  County,  New  Jersey,  in  wrongfully 
seizing  and  selling  plaintiff's  vessel  in  a  proceeding  before  justices 
of  the  peace  of  Monmouth  County  for  violation  of  the  statutes  of 
that  State  with  regard  to  the  gathering  of  clams  by  non-residents. 
Thompson  relied  on  the  recitals  of  the  record  in  the  proceeding  be- 
fore the  justices  to  show  that  the  seizure  was  within  the  limits  of 
Monmouth  County,  and  that  the  proceeding  was  therefore  within  the 
jurisdiction  of  the  justices.  The  trial  court  ruled  that  the  record  was 
prirna  facie  hut  not  conclusive  evidence  of  the  facts  relied  upon  to 
give  the  justices  jurisdiction,  and  the  jury  found  that  the  seizure  was 
not  made  in  Monmouth  County,  whereupon  judgment  was  rendered 
for  plaintiff.     Thompson  sued  out  this   writ  of  error,] 

Mr.  Justice  Bkadley  delivered  the  opinion  of  the  court. 

The  main  question  in  the  cause  is,  whether  the  record  produced  by 
the  defendant  was  conclusive  of  the  jurisdictional  facts  therein  con- 
tained. It  stated,  with  due  particularity,  sufficient  facts  to  give  the 
justices  jurisdiction  under  the  law  of  New  Jersey.  Could  that  state- 
ment be  questioned  collaterally  in  another  action  brought  in  another 
State  ?  If  it  could  be,  the  ruling  of  the  court  was  substantially 
correct.  If  not,  there  was  error.  It  is  true  that  the  court  charged 
generally  that  the  record  was  on]y  jirima  facie  evidence  of  the  facts 
stated  therein ;  but  as  the  jurisdictional  question  was  the  principal 
question  at  issue,  and  as  the  jury  was  required  to  find  specially 
thereon,  the  charge  may  be  regarded  as  having  reference  to  the  ques- 


SECT.  I.]  THOMPSON   I'.    WHITMAN.  845 

tion  of  jurisdiction.  And  if  upon  that  question  it  was  correct,  no 
injury  was  done  to  the  defendant. 

Without  that  provision  of  the  Constitution  of  the  United  States 
which  declares  that  "  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State,"  and  the  act  of  Congress  passed  to  carry  it  into  effect,  it 
is  clear  that  the  record  in  question  would  not  be  conclusive  as  to  the 
facts  necessary  to  give  the  justices  of  Monmouth  County  jurisdiction, 
whatever  might  be  its  effect  in  New  Jersey.  In  any  other  State  it 
would  be  regarded  like  any  foreign  judgment ;  and  as  to  a  foreign 
judgment  it  is  perfectly  well  settled  that  the  inquiry  is  always  open, 
whether  the  court  by  which  it  was  rendered  had  jurisdiction  of  the 
person  or  the  thing.  "Upon  principle,"  says  Chief  Justice  INfarshall, 
"it  would  seem  that  the  operation  of  every  judgment  must  depend 
on  the  power  of  the  court  to  render  that  judgment ;  or,  in  other 
words,  on  its  jurisdiction  over  the  subject-matter  which  it  has  deter- 
mined. In  some  cases  that  jurisdiction  unquestionably  depends  as 
well  on  the  state  of  the  thing  as  on  the  constitution  of  the  court.  If 
by  any  means  whatever  a  prize  court  should  be  induced  to  condemn, 
as  pi'ize  of  war,  a  vessel  which  was  never  captured,  it  could  not  be 
contended  that  this  condemnation  operated  a  change  of  property. 
Upon  principle,  then,  it  would  seem  that,  to  a  certain  extent,  the 
capacit}'  of  the  court  to  act  upon  the  thing  condemned,  arising  from 
its  being  within,  or  without,  their  jurisdiction,  as  well  as  the  consti- 
tution of  the  court,  may  be  considered  by  that  tribunal  which  is  to 
decide  on  the  effect  of  the  sentence."  Rose  v.  Himely,  4  Cranch, 
269.  To  the  same  effect  see  Story  on  the  Constitution,  chap.  xxix. ; 
1  Greenleaf  on  Evidence,  §  540. 

The  act  of  Congress  above  referred  to,  which  was  passed  26th  of 
May,  1790,  after  providing  for  the  mode  of  authenticating  the  acts, 
records,  and  judicial  proceedings  of  the  States,  declares,  "  and  the 
said  records  and  judicial  proceedings,  authenticated  as  aforesaid, 
shall  have  such  faith  and  credit  given  to  tliem  in  every  court  within 
the  United  States,  as  they  have  by  law  or  usage  in  the  courts  of  the 
State  from  whence  the  said  records  are  or  shall  be  taken."  It  has 
been  supposed  that  this  act,  in  connection  with  the  constitutional 
provision  which  it  was  intended  to  carry  out,  had  the  effect  of  render- 
ing the  judgments  of  each  State  equivalent  to  domestic  judgments  in 
every  other  State,  or  at  least  of  giving  to  them  in  every  other  State 
the  same  effect,  in  all  respects,  which  they  have  in  the  State  where 
they  are  rendered.  And  the  language  of  this  court  in  INIills  xk  Duryee, 
7  Cranch,  484,  seemed  to  give  countenance  to  this  idea.  The  court 
in  that  case  held  that  the  act  gave  to  the  judgments  of  each  State  the 
same  conclusive  effect,  as  records,  in  all  the  States,  as  they  had  at 
home  ;  and  that  nil  debet  could  not  be  pleaded  to  an  action  brought 
thereon  in  another  State.  This  decision  has  never  been  departed 
from  in  relation  to  the  general  effect  of  such  judgments  where  the 


846  CONSTITUTIONAL   RULES    OF   STATE   COMITY.         [CHAP.  X. 

questions  raised  were  not  questions  of  jurisdiction.  But  where  the 
jurisdiction  of  the  court  which  rendered  the  judgment  has  been  as- 
sailed, quite  a  different  view  has  prevailed.  Justice  Story,  who  pro- 
nounced the  judgment  in  Mills  v.  Duryee,  in  his  Commentary  on 
the  Constitution,  sec.  1313,  after  stating  the  general  doctrine  estab- 
lished by  that  case  with  regard  to  the  conclusive  effect  of  judgments 
of  one  State  in  every  other  State,  adds  :  '•  But  this  does  not  prevent 
an  inquiry  into  the  jurisdiction  of  the  court  in  which  the  original 
judgment  was  given,  to  pronounce  it;  or  the  right  of  the  State  itself 
to  exercise  authority  over  the  person  or  the  subject-matter.  The 
Constitution  did  not  mean  to  confer  [upon  the  States]  a  new  power 
or  jurisdiction,  but  simply  to  regulate  the  effect  of  the  acknowledged 
jurisdiction  over  persons  and  things  within  their  territory."  In  the 
Commentary  on  the  Conflict  of  Laws,  sec.  609,  substantially  the  same 
remarks  are  repeated,  with  this  addition:  "It"  (the  Constitution) 
"did  not  make  the  judgments  of  other  States  domestic  judgments  to 
all  intents  and  purposes,  but  only  gave  a  general  validity,  faith,  and 
credit  to  them,  as  evidence.  No  execution  can  issue  upon  such  judg- 
ments without  a  new  suit  in  the  tribunals  of  other  States.  And 
they  enjoy  not  the  right  of  priority  or  lien  which  they  have  in  the 
State  where  they  are  pronounced,  but  that  only  which  the  lex  fori 
gives  to  them  by  its  own  laws  in  their  character  of  foreign  judg- 
ments." Many  cases  in  the  State  courts  are  referred  to  by  Justice 
Story  in  support  of  this  view.  Chancellor  Kent  expresses  the  same 
doctrine  in  nearly  the  same  words,  in  a  note  to  his  Commentaries. 
Vol.  1,  p.  281 ;  see  also  vol.  2,  95,  note  and  cases  cited.  "The  doc- 
trine in  INIills  V.  Duryee,"  says  he,  "is  to  be  taken  with  the  qualifica- 
tion that  in  all  instances  the  jurisdiction  of  the  court  rendering  the 
judgment  may  be  inquired  into,  and  the  plea  of  ?iil  debet  will  allow 
the  defendant  to  show  that  the  court  had  no  jurisdiction  over  his 
person.  It  is  only  when  the  jurisdiction  of  the  court  in  another 
State  is  not  impeached,  either  as  to  the  subject-matter  or  the  person, 
that  the  record  of  the  judgment  is  entitled  to  full  faith  and  credit. 
The  court  must  have  had  jurisdiction  not  only  of  the  cause,  but  of 
the  parties,  and  in  that  case  the  judgment  is  final  and  conclusive." 
The  learned  commentator  adds,  however,  this  qualifying  remark: 
"A  special  plea  in  bar  of  a  suit  on  a  judgment  in  another  State,  to  be 
valid,  must  deny,  by  positive  averments,  every  fact  which  would  go 
to  show  that  the  court  in  another  State  had  jurisdiction  of  the  person, 
or  of  the  subject-matter." 

In  the  case  of  Hampton  v.  McConnel,  3  Wheat.  234,  this  court 
reiterated  the  doctrine  of  Mills  v.  Duryee,  that  "the  judgment  of  a 
State  court  should  have  the  same  credit,  validity,  and  effect  in  every 
other  court  of  the  United  States  which  it  had  in  the  State  courts 
where  it  was  pronounced ;  and  that  whatever  pleas  would  be  good  to 
a  suit  therein  in  such  State,  and  none  others,  could  be  pleaded  in  any 
court  in  the  United  States."  But  in  the  subsequent  case  of  McElmoyle 


SECT.  I.]  THOMPSON    V.    WHITMAN.  847 

V.  Cohen,  13  Pet.  312,  the  court  explained  that  neither  in  Mills  v. 
Duryee  nor  in  Hampton  v.  McCoi.nel  was  it  intended  to  exclude 
pleas  of  avoidance  and  satisfaction,  such  as  payment,  statute  of 
limitations,  &c. ;  or  pleas  denying  the  jurisdiction  of  the  court  in 
which  the  judgment  was  given ;  and  quoted,  with  approbation,  the 
remark  of  Justice  Story,  that  "  the  Constitution  did  not  mean  to 
confer  a  new  power  of  jurisdiction,  but  simply  to  regulate  the  effect 
of  the  acknowledged  jurisdiction  over  persons  and  things  within  the 
State." 

The  case  of  Landes  v.  Brant,  10  How.  348,  has  been  quoted  to 
show  that  a  judgment  cannot  be  attacked  in  a  collateral  proceeding. 
There  a  judgment  relied  on  by  the  defendant  was  rendered  in  the 
Territory  of  Louisiana  in  1808,  and  the  objection  to  it  was  that  no 
return  appeared  upon  the  summons,  and  the  defendant  was  proved 
to  have  been  absent  in  Mexico  at  the  time ;  but  the  judgment  com- 
menced in  the  usual  form,  "And  now  at  this  day  come  the  parties 
aforesaid  by  their  attorneys,"  &c.  The  court  pertinently  remarked, 
page  371,  that  the  defendant  may  have  left  behind  counsel  to  defend 
suits  brought  against  him  in  his  absence,  but  that  if  the  recital  was 
false  and  the  judgment  voidable  for  want  of  notice,  it  should  have 
been  set  aside  by  audita  querela  or  motion  in  the  usual  way,  and 
could  not  be  impeached  collaterally.  Here  it  is  evident  the  proof 
failed  to  show  want  of  jurisdiction.  The  party  assailing  the  judg- 
ment should  have  shown  that  the  counsel  who  appeared  were  not  em- 
ployed by  the  defendant,  according  to  the  doctrine  held  in  the  cases 
of  Shuraway  v.  Stillman,  6  Wend.  45.3,  Aldrich  v.  Kinney,  4  Conn.  380, 
and  Price  v.  Ward,  1  Dutch.  225.  The  remark  of  the  court  that  the 
judgment  could  not  be  attacked  in  a  collateral  proceeding  was  unneces- 
sary to  the  decision,  and  was,  in  effect,  overruled  by  the  subsequent 
cases  of  D' Arcy  v.  Ketchum  and  Webster  v.  Reid.  D' Arcy  v.  Ketchum, 
11  How.  165,  was  an  action  in  the  Circuit  Court  of  the  United  States  for 
Louisiana,  brought  on  a  judgment  rendered  in  New  York  under  a  local 
statute,  against  two  defendants,  only  one  of  whom  was  served  with 
process,  the  other  being  a  resident  of  Louisiana.  In  that  case  it  was 
held  by  this  court  that  the  judgment  was  void  as  to  the  defendant  not 
served,  and  that  the  law  of  New  York  could  not  make  it  valid  outside 
of  that  State  ;  that  the  constitutional  provision  and  act  of  Congress 
giving  full  faith,  credit,  and  effect  to  the  judgments  of  each  State  iii 
every  other  State  do  not  refer  to  judgments  rendered  by  a  court  hav- 
ing no  jurisdiction  of  the  parties  ;  that  the  mischief  intended  to  be 
remedied  was  not  only  the  inconvenience  of  retrying  a  cause  which 
had  once  been  fairly  tried  by  a  competent  tribunal,  but  also  the  un- 
certainty and  confusion  that  prevailed  in  England  and  this  country 
as  to  the  credit  and  effect  which  should  be  given  to  foreign  judgments, 
some  courts  holding  that  they  should  be  conclusive  of  the  matters 
adjudged,  and  others  that  they  should  be  regarded  as  only  prima 
facie  binding.     But  this  uncertainty  and  confusion   related  only  to 


848  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 

valid  judgments ;  that  is,  to  judgments  rendered  in  a  cause  in  which 
the  court  had  jurisdiction  of  the  parties  and  cause,  or  (as  might 
have  been  added)  in  proceedings  in  rem,  where  the  court  had  juris- 
diction of  the  res.  No  effect  was  ever  given  by  any  court  to  a  judg- 
ment rendered  by  a  tribunal  which  had  not  such  jurisdiction.  "The 
international  law  as  it  existed  among  the  States  in  1790,"  say  the 
court,  page  176,  "  was  that  a  judgment  rendered  in  one  State,  assum- 
ing to  bind  the  person  of  a  citizen  of  another,  was  void  within  the 
foreign  State,  when  the  defendant  had  not  been  served  with  process 
or  voluntarily  made  defence,  because  neither  the  legislative  jurisdic- 
tion, nor  that  of  courts  of  justice,  had  binding  force.  Subject  to  this 
established  principle,  Congress  also  legislated;  and  the  question  is, 
whether  it  was  intended  to  overthrow  this  principle  and  to  declare  a 
new  rule,  which  would  bind  the  citizens  of  one  State  to  the  laws  of 
another.  There  was  no  evil  in  this  part  of  the  existing  law,  and  no 
remedy  called  for,  and  in  our  opinion  Congress  did  not  intend  to 
overthrow  the  old  rule  by  the  enactment  that  such  faith  and  credit 
should  be  given  to  records  of  judgments  as  they  had  in  the  States 
where  made." 

In  the  subsequent  case  of  Webster  v.  Eeid,  11  How.  437,  the 
plaintiff  claimed,  by  virtue  of  a  sale  made  under  judgments  in  behalf 
of  one  Johnson  and  one  Brigham  against  "  The  Owners  of  Half- 
Breed  Lands  lying  in  Lee  County,"  Iowa  Territory,  in  pursuance  of  a 
law  of  the  Territory.  The  defendant  offered  to  prove  that  no  service 
had  ever  been  made  upon  any  person  in  the  suits  in  which  the  judg- 
ments were  rendered,  and  no  notice  by  publication  as  required  by 
the  act.  This  court  held  that,  as  there  was  no  service  of  process,  the 
judgments  were  nullities.  Perhaps  it  appeared  on  the  face  of  the 
judgments  in  that  case  that  no  service  was  made ;  but  the  court  held 
that  the  defendant  was  entitled  to  prove  that  no  notice  was  given, 
and  that  none  was   published. 

In  Harris  v.  Hardeman  et  al,  14  How.  334,  which  was  a  writ  of 
error  to  a  judgment  held  void  by  the  court  for  want  of  service  of 
process  on  the  defendant,  the  subject  now  under  consideration  was 
gone  over  by  Mr.  Justice  Daniel  at  some  length,  and  several  cases  in 
the  State  courts  were  cited  and  approved,  which  held  that  a  judgment 
may  be  attacked  in  a  collateral  proceeding  by  showing  that  the  court 
had  no  jurisdiction  of  the  person,  or,  in  proceedings  in  rem^  no  juris- 
diction of  the  thing.  Amongst  other  cases  quoted  were  those  of 
Borden  v.  Fitch,  15  Johns.  141,  and  Starbuck  v.  INIurray,  5  Wend, 
156 ;  and  from  the  latter  the  following  remarks  were  quoted  with 
apparent  approval :  "  But  it  is  contended  that  if  other  matter  may 
be  pleaded  by  the  defendant  he  is  estopped  from  asserting  anything 
against  the  allegation  contained  in  the  record.  It  imports  perfect 
verity,  it  is  said,  and  the  parties  to  it  cannot  be  heard  to  impeach  it. 
It  appears  to  me  that  this  proposition  assumes  the  very  fact  to  be 
established,  which  is  the  only  question  in  issue.     For  what  purpose 


SECT.  I.]  THOMPSON   V.   WHITMAN.  849 

does  the  defendant  question  the  jurisdiction  of  the  court  ?  Solely 
to  show  that  its  proceedings  and  judgment  are  void,  and,  therefore, 
the  supposed  record  is,  in  truth,  no  record.  .  .  .  The  plaintiffs,  in 
effect,  declare  to  the  defendant,  —  the  paper  declared  on  is  a  record, 
because  it  says  you  appeared,  and  you  appeared  because  the  paper  is 
a  record.     This  is  reasoning  in  a  circle." 

The  subject  is  adverted  to  in  several  subsequent  cases  in  this 
court,  and  generally,  if  not  universally,  in  terms  implying  acquies- 
cence in  the  doctrine  stated  in  D'Arcy  v.  Ketchum. 

Thus,  in  Christmas  y.  Russell,  5  "Wall.  290,  where  the  court  de- 
cided that  fraud  in  obtaining  a  judgment  in  another  State  is  a  good 
ground  of  defence  to  an  action  on  the  judgment,  it  was  distinctly 
stated,  page  305,  in  the  opinion,  that  such  judgments  are  open  to  in- 
quiry as  to  the  jurisdiction  of  the  court,  and  notice  to  the  defendant. 
And  in  a  number  of  cases,  in  which  was  questioned  the  jurisdiction 
of  a  court,  whether  of  the  same  or  another  State,  over  the  general 
subject-matter  in  which  the  particular  case  adjudicated  was  embraced, 
this  court  has  maintained  the  same  general  language.  Thus,  in 
Elliott  et  ul.  V.  Peirsol  et  al,  1  Pet.  328,  340,  it  was  held  that  the 
Circuit  Court  of  the  United  States  for  the  District  of  Kentucky 
might  question  the  jurisdiction  of  a  county  court  of  that  State  to 
order  a  certificate  of  acknowledgment  to  be  corrected;  and  for  want 
of  such  jurisdiction  to  regard  the  order  as  void.  Justice  Trimble, 
delivering  the  opinion  of  this  court  in  that  case,  said  :  "  Where  a 
court  has  jurisdiction,  it  has  a  right  to  decide  every  question  which 
occurs  in  the  cause,  and  whether  its  decision  be  correct  or  otherwise, 
its  judgment,  until  reversed,  is  regarded  as  binding  in  every  other 
court.  But,  if  it  act  without  authority,  its  judgments  and  orders  are 
regarded  as  nullities.     They  are  not  voidable,  but  simply  void." 

The  same  views  were  repeated  in  the  United  States  v.  Arredondo, 
6  Pet.  691,  Vorhees  v.  Bank  of  the  United  States,  10  id.  475,  Wilcox 
V.  Jackson,  13  id.  511,  Shriver's  Lessee  v.  Lynn,  2  How.  59,  60, 
Rickey's  Lessee  v.  Stewart,  3  id.  762,  and  Williamson  v.  Berry,  8  id. 
540.  In  the  last  case  the  authorities  are  reviewed,  and  the  court  say  : 
"The  jurisdiction  of  any  court  exercising  authority  over  a  subject 
may  be  inquired  into  in  every  other  court  when  the  proceedings  in 
the  former  are  relied  upon  and  brought  before  the  latter  by  a  party 
claiming  the  benefit  of  such  proceedings;"  and  "the  rule  prevails 
whether  the  decree  or  judgment  has  been  given  in  a  court  of  admi- 
ralty, chancery,  ecclesiastical  court,  or  court  of  common  law,  or 
whether  the  point  ruled  has  arisen  under  the  laws  of  nations,  the 
practice  in  chancery,  or  the  municipal  laws  of  States." 

But  it  must  be  admitted  that  no  decision  has  ever  been  made  on 
the  precise  point  involved  in  the  case  before  us,  in  which  evidence 
was  admitted  to  contradict  the  record  as  to  jurisdictional  facts  asserted 
therein,  and  especially  as  to  facts  stated  to  have  been  passed  upon  by 
the  court. 

54 


850  CONSTITUTIONAL   RULES   OP   STATE   COMITY.         [CHAP.  X. 

But  if  it  is  once  conceded  that  the  validity  of  a  judgment  may  be 
attacked  collaterally  by  evidence  showing  that  the  court  had  no  juris- 
diction, it  is  not  perceived  how  any  allegation  contained  in  the  record 
itself,  however  strongly  made,  can  affect  the  right  so  to  question  it. 
The  very  object  of  the  evidence  is  to  invalidate  the  paper  as  a  record. 
If  that  can  be  successfully  done  no  statements  contained  therein 
have  any  force.  If  any  such  statements  could  be  used  to  prevent 
inquiry,  a  slight  form  of  words  might  always  be  adopted  so  as  effec- 
tually to  nullify  the  right  of  such  inquiry.  Kecitals  of  this  kind 
must  be  regarded  like  asseverations  of  good  faith  in  a  deed,  which 
avail  nothing  if  the  instrument  is  shown  to  be  fraudulent.  The 
records  of  the  domestic  tribunals  of  England  and  some  of  the  States, 
it  is  true,  are  held  to  import  absolute  verity  as  well  in  relation  to 
jurisdictional  as  to  other  facts,  in  all  collateral  proceedings.  Public 
policy  and  the  dignity  of  the  courts  are  supposed  to  require  that  no 
averment  shall  be  admitted  to  conti-adict  the  record.  But,  as  we 
have  seen,  that  rule  has  no  extra-territorial  force. 

On  the  whole,  we  think  it  clear  that  the  jurisdiction  of  the  court 
by  which  a  judgment  is  rendered  in  any  State  may  be  questioned  in 
a  collateral  proceeding  in  another  State,  notwithstanding  the  provision 
of  the  fourth  article  of  the  Constitution  and  the  law  of  1790,  and  not- 
withstanding the  averments  contained  in  the  record  of  the  judgment 
itself. 

'  This  is  decisive  of  the  case  ;  for,  according  to  the  findings  of  the 
jury,  the  justices  of  Monmouth  County  could  not  have  had  any  juris- 
diction to  condemn  the  sloop  in  question. 

Affinyied. 


HANLEY  V.   DONOGHUE. 
116  United  States,  1.     1885. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  by  Michael  Hanley  and  William  F. 
Welch  against  Charles  Donoghue  in  the  Circuit  Court  for  Baltimore 
County,  in  the  State  of  Maryland,  upon  a  judgment  for  $2,000,  re- 
covered by  the  plaintiffs  on  June  4,  1877,  in  an  action  of  covenant 
against  the  defendant,  Charles  Donoghue,  together  with  one  John 
Donoghue,  in  the  Court  of  Common  Pleas  of  Washington  County  in 
the  State  of  Pennsylvania,  and  there  recorded. 

The  declaration  contained  three  counts.  The  first  count  set  forth 
the  recovery  and  record  of  the  judgment  as  aforesaid  in  said  Court 
of  Common  Pleas,  and  alleged  that  it  was  still  in  force,  and  unre- 
versed.    The  second  count  contained  similar  allegations,  and  also 


SECT.  I.]  HANLEY   V.   DONOGHUE.  851 

alleged  that  in  the  former  action  Charles  Donoghue  was  summoned, 
and  property  of  John  Donoghue  was  attached  by  process  of  foreign 
attachment,  but  he  was  never  summoned  and  never  appeared,  and 
that  the  proceedings  in  that  action  were  duly  recorded  in  that  court. 
The  third  count  repeated  the  allegations  of  the  second  count,  and 
further  alleged  that  "  by  the  law  and  practice  of  Pennsylvania  the 
judgment  so  rendered  against  the  two  defendants  aforesaid  is  in  that 
State  valid  and  enforceable  against  Charles  Donoghue  and  void  as 
against  John  Donoghue,"  and  that  "  by  the  law  of  Pennsylvania  any 
appeal  from  the  judgment  so  rendered  to  the  Supreme  Court  of  Penn- 
sylvania (which  is  the  only  court  having  jurisdiction  of  appeals  from 
the  said  Court  of  Common  Pleas)  is  required  to  be  made  within  two 
years  of  the  rendition  of  the  judgment,  nevertheless  no  appeal  has 
ever  been  taken  from  the  judgment  so  rendered  against  the  said  de- 
fendants, or  either  of  them." 

The  defendant  filed  a  general  demurrer  to  each  and  all  of  the 
counts,  wliich  was  sustained,  and  a  general  judgment  rendered  for 
him.  Upon  appeal  by  the  plaintiffs  to  the  Court  of  Appeals  of  the 
State  of  Maryland,  the  judgment  was  affirmed.  59  Md,  239.  The 
plaintiffs  thereupon  sued  out  this  writ  of  error,  on  the  ground  that 
the  decision  was  against  a  right  and  privilege  set  up  and  claimed  by 
them  under  the  Constitution  and  laws  of  the  United  States. 

The  question  presented  by  this  writ  of  error  is  whether  the  judg- 
ment of  the  Court  of  Appeals  of  the  State  of  Maryland  has  denied  to 
the  plaintiffs  a  right  and  privilege  to  which  they  are  entitled  under 
the  first  section  of  the  fourth  article  of  the  Constitution  of  the  United 
States,  which  declares  that  "  full  faith  and  credit  shall  he  given  in 
each  State  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State ;  and  the  Congress  may  by  general  laws  prescribe 
the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved  and  the  effect  thereof;"  and  under  §  905  of  the  Revised 
Statutes,  which  re-enacts  the  act  of  May  26,  1790,  ch.  11,  1  Stat.  122, 
and  prescribes  the  manner  in  which  the  records  and  judicial  proceed- 
ings of  the  courts  of  any  State  shall  be  authenticated  and  proved, 
and  enacts  that  "  the  said  records  and  judicial  proceedings,  so  authen- 
ticated, shall  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or  usage  in  the  courts 
of  the  State  from  which  they  are  taken." 

By  the  settled  construction  of  these  provisions  of  the  Constitution 
and  statutes  of  the  United  States,  a  judgment  of  a  State  court,  in  a 
cause  within  its  jurisdiction,  and  against  a  defendant  lawfully  sum- 
moned, or  against  lawfully  attached  property  of  an  absent  defendant, 
is  entitled  to  as  much  force  and  effect  against  the  person  summoned 
or  the  property  attached,  when  the  question  is  presented  for  decision 
in  a  court  of  another  State,  as  it  has  in  the  State  in  which  it  was 
rendered.  Maxwell  v.  Stewart,  22  Wall.  77  ;  Insurance  Co.  v.  Harris, 
97  U.  S.  331 J    Green  v.   Van   Buskirk,   7  Wall.   139 ;    Cooper  v. 


852  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 

Keynolds,  10  Wall.  308.  And  it  is  within  the  power  of  the  legislature 
of  a  State  to  enact  that  judgments  which,  shall  be  rendered  in  its 
courts  in  actions  against  joint  defendants,  one  of  whom  has  not  been 
duly  served  with  process,  shall  be  valid  as  to  those  who  have  been 
so  served,  or  who  have  appeared  in  the  action.  Mason  v.  Eldred, 
6  Wall.  231 ;  Eldred  v.  Bank,  17  Wall.  545  ;  Hall  v.  Lanning,  91  U.  S. 
160,  168 ;  Sawin  v.  Kenney,  93  U.  S.  289. 

Much  of  the  argument  at  the  bar  was  devoted  to  the  discussion  of 
questions  which  the  view  that  we  take  of  this  case  renders  it  un- 
necessary to  consider  ;  such  as  the  proper  manner  of  impeaching  or 
avoiding  judgments  in  the  State  in  which  they  are  rendered,  for  want 
of  due  service  of  process  upon  one  or  all  of  the  defendants  ;  or  the 
eifect  which  a  judgment  rendered  in  one  State  against  two  joint  de- 
fendants, one  of  whom  has  been  duly  summoned  and  the  other  has 
not,  should  be  allowed  against  the  former  in  the  courts  of  another 
State,  without  allegation  or  proof  of  the  effect  which  such  a  judg- 
ment has  against  him  by  the  law  of  the  first  State. 

No  court  is  to  be  charged  with  the  knowledge  of  foreign  laws ;  but 
they  are  well  understood  to  be  facts,  which  must,  like  other  facts,  be 
proved  before  they  can  be  received  in  a  court  of  justice.  Talbot  v. 
Seeman,  1  Cranch,  1,  38 ;  Church  v.  Hubbart,  2  Cranch,  187,  236  ; 
Strother  v.  Lucas,  6  Pet.  763,  768;  Dainese  v.  Hale,  91  U.  S.  13,  20. 
It  is  equally  well  settled  that  the  several  States  of  the  Union  are  to 
be  considered  as  in  this  respect  foreign  to  each  other,  and  that  the 
courts  of  one  State  are  not  presumed  to  know,  and  therefore  not 
bound  to  take  judicial  notice  of,  the  laws  of  another  State.  In 
Buckner  v.  Finley,  2  Pet.  586,  in  which  it  was  held  that  bills  of 
exchange  drawn  in  one  of  the  States  on  persons  living  in  another 
were  foreign  bills,  it  was  said  by  Mr  Justice  W^ashington,  delivering 
the  unanimous  opinion  of  this  court:  "For  all  national  purposes 
embraced  by  the  Federal  Constitution,  the  States  and  the  citizens 
thereof  are  one,  united  under  the  same  sovereign  authority,  and 
governed  by  the  same  laws.  In  all  other  respects  the  States  are 
necessarily  foreign  to  and  independent  of  each  other.  Their  con- 
stitutions and  forms  of  government  being,  although  republican,  alto- 
gether different,  as  are  their  laws  and  institutions."     2  Pet.  590. 

Judgments  recovered  in  one  State  of  the  Union,  when  proved  in 
the  courts  of  another,  differ  from  judgments  recovered  in  a  foreign 
country  in  no  other  respect  than  that  of  not  being  re-examinable  upon 
the  merits,  nor  impeachable  for  fraud  in  obtaining  them,  if  rendered 
by  a  court  having  jurisdiction  of  the  cause  and  of  the  parties.  Buck- 
ner V.  Finley,  2  Pet.  592;  M'Elmoyle  v.  Cohen,  13  Pet.  312,324; 
D'Arcy  v.  Ketchum,  11  How.  165, 176;  Christmas  v.  Russell,  5  Wall. 
290.  305;  Thompson  v.  W^hitraan,  18  Wall.  457. 

Congress,  in  the  execution  of  the  power  conferred  upon  it  by  the 
Constitution,  having  prescribed  the  mode  of  attestation  of  records  of 
the  courts  of  one  State  to  entitle  them  to  be  proved  in  the  courts  of 


SECT.  I.]  HANLEY    V.    DONOGHUE.  853 

another  State,  and  having  enacted  that  records  so  authenticated  shall 
have  such  faith  and  credit  in  every  court  within  the  United  States 
as  they  have  by  law  or  usage  in  the  State  from  which  they  are  taken, 
a  record  of  a  judgment  so  authenticated  doubtless  proves  itself  with- 
out further  evidence;  and  if  it  appears  upon  its  face  to  be  a  record  of 
a  court  of  general  jurisdiction,  the  jurisdiction  of  the  court  over  the 
cause  and  the  parties  is  to  be  presumed  unless  disproved  by  extrinsic 
evhlence  or  by  the  record  itself.  Knowles  v.  Gaslight  &  Coke  Co., 
19  Wall.  58;  Settlemier  v.  Sullivan,  97  U.  S.  444.  But  Congress 
has  not  undertaken  to  prescribe  in  what  manner  the  effect  that  such 
judgments  have  in  the  courts  of  the  State  in  which  the}'  are  rendered 
shall  be  ascertained,  and  has  left  that  to  be  regulated  by  the  general 
rules  of  pleading  and  evidence  applicable  to  the  subject. 

Upon  principle,  therefore,  and  according  to  the  great  preponder- 
ance of  authority,  whenever  it  becomes  necessary  for  a  court  of  one 
State,  in  order  to  give  full  faith  and  credit  to  a  judgment  rendered 
in  another  State,  to  ascertain  the  effect  which  it  has  in  that  State, 
the  law  of  that  State  must  be  proved,  like  any  other  matter  of  fact. 
The  opposing  decisions  in  Ohio  v.  Hinchman,  27  Penn.  St.  479,  and 
Paine- ^J.  Schenectady  Ins.  Co.,  11  R.  I.  411,  are  based  upon  the  mis- 
apprehension that  this  conrt,  on  a  writ  of  error  to  review  a  decision 
of  the  highest  court  of  one  State  upon  the  faith  and  credit  to  be  al- 
lowed to  a  judgment  rendered  in  another  State,  always  takes  notice 
of  the  laws  of  the  latter  State  ;  and  upon  the  consequent  misappli- 
cation of  the  postulate  that  one  rule  must  prevail  in  the  court  of 
original  jurisdiction  and  in  the  court  of  last  resort. 

"When  exercising  an  original  jurisdiction  under  the  Constitution 
and  laws  of  the  United  States,  this  court,  as  well  as  every  other 
court  of  the  national  government,  doubtless  takes  notice,  without 
proof,  of  the  laws  of  each  of  the  United  States. 

But  in  this  court,  exercising  an  appellate  jurisdiction,  whatever 
was  matter  ot  law  in  the  court  appealed  from  is  matter  of  law  here, 
and  whatever  was  matter  of  fact  in  the  court  appealed  from  is  matter 
of  fact  here. 

In  the  exercise  of  its  general  appellate  jurisdiction  from  a  lower 
court  of  the  United  States,  this  court  takes  judicial  notice  of  the 
laws  of  every  State  of  the  Union,  because  those  laws  are  known  to 
the  court  below  as  laws  alone,  needing  no  averment  or  proof.  Course 
V.  Stead,  4  Dall.  22,  27,  note  ;  Hinde  v.  Vattier,  5  Pet.  398 ;  Owings 
V.  Hull,  9  Pet.  607,  G25  ;  United  States  r.  Turner,  11  How.  663,  668  ; 
Pennington  v.  Gibson.  16  How.  Go ;  Covington  Drawbridge  Co.  v. 
Shepherd,  20  How.  227,  230 ;  Cheever  v.  Wilson,  9  Wall.  108 ;  Junc- 
tion Railroad  Co,  v.  Bank  of  Ashland,  12  Wall.  226,  230 ;  Laraar  v. 
Micou,  114  U.  S.  218. 

But  on  a  writ  of  ervnf  to  the  highest  court  of  a  State,  in  which  the 
revisory  power  of  this  court  is  limited  to  determining  whetlier  a 
question  of  law  depending  upon  the  Constitution,  laws,  or  treaties  of 


854  CONSTITUTIONAL   EULES    OF    STATE    COMITY.  [CHAP.  X. 

the  United  States  has  been  erroneously  decided  by  the  State  court 
upon  the  facts  before  it,  —  while  the  law  of  that  State,  being  known 
to  its  courts  as  law,  is  of  course  within  the  judicial  notice  of  tliis 
court  at  the  hearing  on  error,  —  yet,  as  in  the  State  court  the  laws  of 
another  State  are  but  facts,  requiring  to  be  proved  in  order  to  be 
considered,  this  court  does  not  take  judicial  notice  of  them,  unless 
made  part  of  the  record  sent  up,  as  in  Green  v.  Van  Buskirk,  7  \Yall. 
139.  The  case  comes,  in  principle,  within  the  rule  laid  down  long 
ago  by  Chief  Justice  Marshall :  "  That  the  laws  of  a  foreign  nation, 
designed  only  for  the  direction  of  its  own  affairs,  are  not  to  be  noticed 
by  the  courts  of  other  countries,  unless  proved  as  facts,  and  that  this 
court,  with  respect  to  facts,  is  limited  to  the  statement  made  in  the 
court  below,  cannot  be  questioned."  Talbot  v.  Seeman,  1  Cranch, 
1,38. 

Where  by  the  local  law  of  a  State  (as  in  Tennessee,  Hobbs  v. 
Memphis  &  C.  R.  Co.,  9  Heisk.  873)  its  highest  court  takes  ju- 
dicial notice  of  the  law's  of  other  States,  this  court  also,  ou  writ  of 
error,  might  take  judicial  notice  of  them.  But  such  is  not  the  case 
in  Maryland,  where  the  Court  of  Appeals  has  not  only  affirmed 
the  general  rule  that  foreign  laws  are  facts,  which,  like  other 
facts,  must  be  proved  before  they  can  be  received  in  evidence  in 
courts  of  justice  ;  but  has  h?ld  that  the  effect  which  a  judgment 
rendered  in  another  State  has  by  the  law  of  that  State  is  a  matter  of 
fact,  not  to  be  judicially  noticed  without  allegation  and  proof;  and 
consequently  that  an  allegation  of  the  effect  which  such  a  judgment 
has  by  law  in  that  State  is  admitted  by  demurrer.  Baptiste  v.  De 
Volunbrun,  5  Har.  &  J.  86,  98 ;  Wernwag  v.  Pawling,  5  Gill  & 
J.  500,  508;  Bank  of  United  States  v.  Merchants'  Bank,  7  Gill, 
415,  431;  Coates  v.  Mackey,  56  Md.  416,   419. 

From  these  considerations  it  follows  that  the  a,verment,  in  the 
third  count  of  the  declaration,  that  by  the  law  of  Pennsylvania  the 
judgment  rendered  in  that  State  against  Charles  Donoghue  and  John 
Donoghue  was  valid  and  enforceable  against  Charles,  who  had  been 
served  with  process  in  that  State,  and  void  against  John,  who  had 
not  been  so  served,  must  be  considered,  both  in  the  courts  of  Mary- 
land, and  in  this  court  on  writ  of  error  to  one  of  those  courts,  an 
allegation  of  fact,  admitted  by  the  demurrer. 

[The  judgment  of  the  Maryland  court  was  therefore  reversed.^] 

1  As  to  the  "  due  faith  and  credit "  which  must  he  given  in  one  State  to  a  decree  of 
divorce  rendered  in  another  State  see  tlie  case  of  Haddock  v.  Haddock,  201  U.  S.  562, 
26  Sup.  Ct.  Rep.  525  (1906),  in  which  Mr.  Justice  White  delivered  the  opinion  of 
the  court  and  Mr.  Justice  Brown  and  Mr.  Justice  Holmes  delivered  dissenting 
opinions  in  both  of  which  Mk.  Jdsticb  Hablan  and  Mb.  Justice  Bbeweb  concurred. 


SECT.  II.]  PAUL   V.    VIRGINIA.  855 


Section  II.  —  Privileges  and  Immunities  of  Citizens. 


PAUL  V.  VIRGINIA. 

8  Wallace,  108.     1868. 

[The  plaintiff  in  error  was  prosecuted  in  the  State  courts  of  Virginia 
for  acting  as  agent  for  a  foreign  insurance  company  (that  is,  a  com- 
pany incorporated  in  another  State)  witliout  complying  with  the  con- 
dition of  procuring  a  license  from  the  State  to  do  so  as  required  by 
its  statutes,  no  such  requirement  being  made  as  to  agents  of  com- 
panies incorporated  in  the  State.  Being  convicted  in  the  State  courts 
defendant  brought  the  case  to  this  court  by  writ  of  error.] 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion  of 
the  court,  as  follows  :  — 

On  the  trial  in  the  court  below  the  validity  of  the  discriminating 
provisions  of  the  statute  of  Virginia  between  her  own  corporations 
and  corporations  of  other  States  was  assailed.  It  was  contended  that 
the  statute  in  this  particular  was  in  conflict  with  that  clause  of  the 
Constitution  which  declares  that  "  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States,"  and  the  clause  which  declares  that  Congress  shall  have 
power  ''  to  regulate  commerce  with  foreign  nations  and  among  the 
several  States."  The  same  grounds  are  urged  in  this  court  for  the 
reversal  of  the  judgment. 

The  answer  which  readily  occurs  to  the  objection  founded  upon  the 
first  clause  consists  in  the  fact  that  corporations  are  not  citizens 
within  its  meaning.  The  term  "  citizens  "  as  there  used  applies  only 
to  natural  persons,  members  of  the  body  politic,  owing  allegiance  to 
the  State,  not  to  artificial  persons  created  by  the  legislature,  and  pos- 
sessing only  the  attributes  which  the  legislature  has  prescribed.  It 
is  true  that  it  has  been  held  that  where  contracts  or  rights  of  property 
are  to  be  enforced  by  or  against  corporations,  the  courts  of  the  United 
States  will,  for  the  purpose  of  maintaining  jurisdiction,  consider  the 
corporation  as  representing  citizens  of  the  State  under  the  laws  of 
which  it  is  created,  and  to  this  extent  will  treat  a  corporation  as  a 
citizen  within  the  clause  of  the  Constitution  extending  the  judicial 
power  of  the  United  States  to  controversies  between  citizens  of  differ- 
ent States.  In  the  early  cases  w^hen  this  question  of  the  right  of 
corporations  to  litigate  in  the  courts  of  the  United  States  was  con- 
sidered, it  was  held  that  the  right  depended  upon  the  citizenship  of 
the  members  of  the  corporation,  and  its  proper  averment  in  the 
pleadings. 


856  CONSTITUTIONAL   RULES   OF   STATE    COMITY.        [CHAP.  X. 

But  in  no  case  which  has  come  nnder  our  observation,  either  in  the 
State  or  Federal  courts,  has  a  corporation  been  considered  a  citizen 
witliin  the  meaning  of  that  provision  of  the  Constitution  which  de- 
clares that  the  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  of  the  several  States.  In  Bank 
of  Augusta  V.  Earle,  13  Pet.  586,  the  question  arose  whether  a  bank, 
incorporated  by  the  laws  of  Georgia,  with  a  power,  among  other 
things,  to  purchase  bills  of  exchange,  could  lawfully  exercise  that 
power  in  the  State  of  Alabama ;  and  it  was  contended,  as  in  the  case 
at  bar,  that  a  corporation,  composed  of  citizens  of  other  States,  was 
entitled  to  the  benefit  of  that  provision,  and  that  the  court  should 
look  beyond  the  act  of  incorporation  and  see  who  were  its  members, 
for  the  purpose  of  affording  them  its  protection,  if  found  to  be 
citizens  of  other  States,  reference  being  made  to  an  early  decision 
upon  the  right  of  corporations  to  litigate  in  the  Federal  courts  in 
support  of  the  position.  But  the  court,  after  expressing  approval  of 
the  decision  referred  to  (Bank  of  the  United  States  v.  Deveaux, 
5  Cranch,  61),  observed  that  the  decision  was  confined  in  express  terms 
to  a  question  of  jurisdiction  ;  that  the  principle  had  never  been  car- 
ried further,  and  that  it  had  never  been  supposed  to  extend  to  con- 
tracts made  by  a  corporation,  especially  in  another  sovereignty  from 
that  of  its  creation;  that  if  the  principle  were  held  to  embrace  con- 
tracts, and  the  members  of  a  corporation  were  to  be  regarded  as 
individuals  carrying  on  business  in  the  corporate  name,  and  therefore 
entitled  to  the  privileges  of  citizens,  they  must  at  the  same  time  take 
upon  themselves  the  liabilities  of  citizens,  and  be  bound  by  their 
contracts  in  like  manner  ;  that  the  result  would  be  to  make  the  cor- 
poration a  mere  partnership  in  business  with  the  individual  liability 
of  each  stockholder  for  all  the  debts  of  the  corporation  ;  that  the 
clause  of  the  Constitution  could  never  have  intended  to  give  citizens 
of  each  State  the  privileges  of  citizens  in  the  several  States,  and  at 
the  same  time  to  exempt  them  from  the  liabilities  attendant  upon  the 
exercise  of  such  privileges  in  those  States  ;  that  this  would  be  to  give 
the  citizens  of  other  States  higher  and  greater  privileges  than  are 
enjoyed  by  citizens  of  the  State  itself,  and  would  deprive  each  State 
of  all  control  over  the  extent  of  corporate  franchises  proper  to  be 
granted  therein.  "It  is  impossible,"  continued  the  court,  "upon  any 
sound  principle,  to  give  such  a  construction  to  the  article  in  question. 
Whenever  a  corporation  makes  a  contract  it  is  the  contract  of  the 
legal  entity,  the  artificial  being  created  by  the  charter,  and  not  the 
contract  of  the  individual  members.  The  only  rights  it  can  claim 
are  the  riglits  which  are  given  to  it  in  that  character,  and  not  the 
rights  which  belong  to  its  members  as  citizens  of  a  State." 

It  was  undoubtedly  the  object  of  the  clause  in  question  to  place 
the  citizens  of  each  State  upon  the  same  footing  with  citizens  of 
other  States,  so  far  as  the  advantages  resulting  from  citizenship  in 
those  States  are  concerned.     It  relieves  them  from  the  disabilities  of 


SECT.  II.]  PAUL   V.    VIRGINIA.  857 

alienage  in  other  States;  it  inhibits  discriminating  legislation  against 
them  by  other  States  ;  it  gives  them  the  right  of  free  ingress  into 
other  States,  and  egress  from  them  ;  it  insures  to  them  in  other  States 
the  same  freedom  possessed  by  the  citizens  of  those  States  in  the  ac- 
quisition and  enjoyment  of  property  and  in  the  pursuit  of  happiness  ; 
and  it  secures  to  them  in  other  States  the  equal  protection  of  their 
laws.  It  has  been  justly  said  that  no  provision  in  the  Constitution 
has  tended  so  strongly  to  constitute  the  citizens  of  the  United  States 
one  people  as  this.     Lemmon  v.  The  People,  20  N.  Y.  607. 

Indeed,  without  some  provision  of  the  kind  removing  from  the 
citizens  of  each  State  tlie  disabilities  of  alienage  in  the  other  States, 
and  giving  them  equality  of  privilege  with  citizens  of  those  States, 
the  Republic  would  have  constituted  little  more  than  a  league  of 
States  ;  it  would  not  have  constituted  the  Union  which  now  exists. 

But  the  privileges  and  immunities  secured  to  citizens  of  each  State 
in  the  several  States,  by  the  provision  in  qiiestion,  are  those  privi- 
leges and  immunities  which  are  common  to  the  citizens  in  the  latter 
States  under  their  constitution  and  laws  by  virtue  of  their  being 
citizens.  Special  privileges  enjoyed  by  citizens  in  their  own  States 
are  not  secured  in  other  States  by  this  provision.  It  was  not  in- 
tended by  the  provision  to  give  to  the  laws  of  one  State  any  operation 
in  other  States.  They  can  have  no  such  operation,  except  by  the 
permission,  express  or  implied,  of  those  States.  The  special  privi- 
leges which  they  confer  must,  therefore,  be  enjoyed  at  home,  unless 
the  assent  of  other  States  to  their  enjoyment  therein  be  given. 

Now  a  grant  of  corporate  existence  is  a  grant  of  special  privileges 
to  the  corporators,  enabling  them  to  act  for  certain  designated  pur- 
poses as  a  single  individual,  and  exempting  them  (unless  otherwise 
specially  provided)  from  individual  liability.  The  corporation  being 
the  mere  creation  of  local  law,  can  have  no  legal  existence  beyond 
the  limits  of  the  sovereignty  where  created.  As  said  by  this  court 
in  Bank  of  Augusta  v.  Earle,  "  It  must  dwell  in  the  place  of  its  crea- 
tion, and  cannot  migrate  to  another  sovereignty."  The  recognition 
of  its  existence  even  by  other  States,  and  the  enforcement  of  its  con- 
tracts made  therein,  depend  purely  upon  the  comity  of  those  States  — 
a  comity  which  is  never  extended  where  the  existence  of  the  corpora- 
tion or  the  exercise  of  its  powers  are  prejudicial  to  their  interests  or 
repugnant  to  their  policy.  Having  no  absolute  right  of  recognition 
in  other  States,  but  depending  for  such  recognition  and  the  enforce- 
ment of  its  contracts  upon  their  assent,  it  follows,  as  a  matter  of 
course,  that  such  assent  may  be  granted  upon  such  terms  and  con- 
ditions as  those  States  may  think  proper  to  impose.  They  may 
exclude  the  foreign  corporation  entirely  ;  the}'  may  restrict  its  busi- 
ness to  particular  localities,  or  they  may  exact  such  security  for  the 
performance  of  its  contracts  with  their  citizens  as  in  their  judgment 
will  best  promote  the  public  interest.  The  whole  matter  rests  iu 
their  discretion. 


858  CONSTITUTIONAL   EULES   OP   STATE    COMITY.  [CHAP.  X. 

If,  on  the  other  hand,  the  provision  of  the  Constitution  could  be 
construed  to  secure  to  citizens  of  each  State  in  other  States  the  pecu- 
liar privileges  conferred  by  their  laws,  an  extra-territorial  operation 
would  be  given  to  local  legislation  utterly  destructive  of  the  independ- 
ence and  the  harmony  of  the  States.  At  the  present  day  corpora- 
tions are  multiplied  to  an  almost  indefinite  extent.  There  is  scarcely 
a  business  pursued  requiring  the  expenditure  of  large  capital,  or  the 
union  of  large  numbers,  that  is  not  carried  on  by  corporations.  It  is 
not  too  much  to  say  that  the  wealth  and  business  of  the  country  are 
to  a  great  extent  controlled  by  them.  And  if,  when  composed  of  citi- 
zens of  one  State,  their  corporate  powers  and  franchises  could  be 
exercised  in  other  States  without  restriction,  it  is  easy  to  see  that, 
with  the  advantages  thus  possessed,  the  most  important  business  of 
those  States  would  soon  pass  into  their  hands.  The  principal  busi- 
ness of  every  State  would,  in  fact,  be  controlled  by  corporations 
created  by  other  States. 

If  the  right  asserted  of  the  foreign  corporation,  when  composed  of 
citizens  of  one  State,  to  transact  business  in  other  States  were  even 
restricted  to  such  business  as  corporations  of  those  States  were  author- 
ized to  transact  it  would  still  follow  that  those  States  would  be  un- 
able to  limit  the  number  of  corporations  doing  business  therein.  They 
could  not  charter  a  company  for  any  purpose,  however  restricted, 
witliout  at  once  opening  the  door  to  a  flood  of  corporations  from 
other  States  to  engage  in  the  same  pursuits.  They  could  not  repel 
an  intruding  corporation,  except  on  the  condition  of  refusing  incorpo- 
ration for  a  similar  purpose  to  their  own  citizens;  and  yet  it  might 
be  of  the  highest  public  interest  that  the  number  of  corporations  in 
the  State  should  be  limited ;  that  they  should  be  required  to  give 
publicity  to  their  transactions ;  to  submit  their  affairs  to  proper  ex- 
amination ;  to  be  subject  to  forfeiture  of  their  corporate  rights  in 
case  of  mismanagement,  and  that  their  officers  should  be  held  to  a 
strict  accountability  for  the  manner  in  which  the  business  of  the  cor- 
porations is  managed,  and  be  liable  to  summary  removal. 

"  It  is  impossible,"  to  repeat  the  language  of  this  court  in  Bank  of 
Augusta  V.  Earle,  "  upon  any  sound  principle,  to  give  such  a  con- 
struction to  the  article  in  question,"  —  a  construction  which  would 
lead  to  results  like  these. 

[The  question  whether  the  State  statute  is  unconstitutional  as 
amounting  to  a  regulation  of  interstate  commerce  is  considered,  and 
it  is  held  that  the  insurance  business  does  not  constitute  interstate 
commerce.] 

"We  perceive  nothing  in  the  statute  of  Virginia  which  conflicts  with 
the  Constitution  of  the  United  States  ;  and  the  judgment  of  the 
Supreme  Court  of  Appeals  of  that  State  must,  therefore,  be 

Affirmed. 


SECT.  II.]  BLAKE   I'.    MCCLUNG.  859 

BLAKE  V.  McCLUNG. 

172  United  States,  239.     1898. 

Mr.  Justice  Harlan  delivered  the  opiniou  of  the  court. 

[In  brief  the  case,  as  stated  in  the  opinion,  was  a  proceeding  by 
McClung  and  others  in  the  State  courts  of  Tennessee  to  wind  up 
an  insolvent  corporation,  designated  as  the  Enibreeville  Company, 
organized  under  the  laws  of  Great  Britain  and  doing  business  in 
Tennessee.  Plaintiifs  were  residents  of  that  State,  but  Blake  and 
others,  citizens  of  Ohio,  and  the  Hull  Coal  and  Coke  Couapany,  a  Vir- 
ginia corporation,  intervened  as  creditors,  asking  to  participate  in  the 
distribution  of  the  assets  of  the  defendant  company.  lu  accordance 
with  a  State  statute  the  Tennessee  courts  gave  the  creditors  resident 
in  Tennessee  priority  over  the  Ohio  creditors  and  the  Virginia  cor- 
poration, holding  the  statute  which  authorized  such  preference  to  be 
constitutional.  Intervenors  brought  up  the  case  for  review  on  writ 
of  error,  claiming  that  the  State  statute  in  question  violated  the 
provisions  of  Art.  IV.  sec.  2,  and  sec.  1  of  Fourteenth  Amendment 
of  the  Federal  Constitution.] 

Beyond  question  a  State  may,  through  judicial  proceedings,  take 
possession  of  the  assets  of  an  insolvent  foreign  corporation  within 
its  limits,  and  distribute  such  assets  or  their  proceeds  among  creditors 
according  to  their  respective  rights.  But  may  it  exclude  citizens  of 
other  States  from  such  distribution  until  the  claims  of  its  own 
citizens  shall  have  been  first  satisfied  ?  In  the  administration  of 
the  property  of  an  insolvent  foreign  corporation  by  the  courts  of 
the  State  in  which  it  is  doing  business,  will  the  Constitution  of  the 
United  States  permit  discrimination  against  individual  creditors  of 
such  corporations  because  of  their  being  citizens  of  other  States,  and 
not  citizens  of  the  State  in  which  such  administration  occurs  ? 

These  questions  are  presented  for  our  determination.  Let  us 
see  how  far  they  have  been  answered  by  the  former  decisions  of 
this  court. 

This  court  has  never  undertaken  to  give  any  exact  or  comprehen- 
sive definition  of  the  words  "  privileges  and  immunities  "  in  Article 
IV.  of  the  Constitution  of  the  United  States.  Referring  to  this 
clause,  Mr.  Justice  Curtis,  speaking  for  the  court  in  Conner  v.  Elliott, 
18  How.  591,  593,  said:  "  We  do  not  deem  it  needful  to  attempt  to 
define  the  meaning  of  the  word  <  privileges'  in  this  clause  of  the  Con- 
stitution. It  is  safer,  and  more  in  accordance  with  the  duty  of  a 
judicial  tribunal,  to  leave  its  meaning  to  be  determined,  in  each  case, 
upon  a  view  of  the  particular  rights  asserted  and  denied  therein. 
And  especially  is  this  true  when  we  are  dealing  with  so  broad  a 
provision,  involving  matters  not  only  of  great  delicacy  and  impor- 
tance, but  which  are  of  such  a  character  that  any  merely  abstract 
definition  could   scarcely  be  correct ;  and  a  failure   to  make  it  so 


860  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 

would  certainly  produce  mischief."  Nevertheless,  what  has  been 
said  by  this  and  other  courts  upon  the  general  subject  will  assist 
us  in  determining  the  particular  questions  now  pressed  upon  our 
attention. 

One  of  the  leading  cases  in  which  the  general  question  has  been 
examined  is  Corfield  v.  Coryell,  decided  by  Mr.  Justice  Washington 
at  the  circuit.  He  said :  "  The  inquiry  is,  what  are  the  privileges 
and  immunities  of  citizens  in  the  several  States  ?  We  feel  no 
hesitation  in  confining  these  expressions  to  those  privileges  and 
immunities  which  are,  in  their  w^twre ^  fundameMtal ;  which  belong, 
of  right,  to  the,  citizens  of  all  free  governments,  and  which  have,  at 
all  times,  been  enjoyed  by  the  citizens  of  the  several  States  which 
compose  this  Union  from  the  time  of  their  becoming  free,  independ- 
ent, and  sovereign.  What  these  fundamental  principles  are,  it  would 
perhaps  be  more  tedious  than  difficult  to  enumerate.  They  may, 
however,  be  comprehended  under  the  following  general  heads : 
Protection  by  the  government;  the  enjoyment  of  life  and  liberty, 
with  the  right  to  acquire  and  possess  property  of  every  kind,  and 
to  pursue  and  obtain  happiness  and  safety ;  subject  nevertheless  to 
such  restraints  as  the  government  may  justly  prescribe  for  the 
general  good  of  the  whole.  The  right  of  a  citizen  of  one  State  to 
pass  through  or  to  reside  in  any  other  State  for  the  purposes  of 
trade,  agriculture,  professional  pursuits  or  otherwise ;  to  claim  the 
benefit  of  the  writ  of  habeas  corpiis ;  to  institute  and  maintain 
actions  of  any  kind  in  the  courts  of  the  State ;  to  take,  hold,  and 
dispose  of  property,  either  real  or  personal ;  and  an  exemption  from 
higher  taxes  or  impositions  than  are  paid  by  the  other  citizens  of 
the  State,  may  be  mentioned  as  some  of  the  particular  privileges 
and  immunities  of  citizens,  which  are  clearly  embraced  by  the 
general  description  of  privileges  deemed  to  be  fundamental ;  to 
which  may  be  added,  the  elective  franchise,  as  regulated  and  estab- 
lished by  the  laws  or  constitution  of  the  State  in  which  it  is  to  be 
exercised.  These,  and  many  others  which  might  be  mentioned,  are, 
strictly  speaking,  privileges  and  immunities,  and  the  enjoyment  of 
them  by  the  citizens  of  each  State  in  every  other  State  was  mani- 
festly calculated  (to  use  the  expression  of  the  preamble  to  the 
corresponding  provision  in  the  old  Articles  of  Confederation)  'the 
better  to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  States  of  the  Union.'  "  4  Wash. 
C.  C.  371,  380. 

These  observations  of  'Mv.  Justice  Washington  were  made  in  a 
case  involving  the  validity  of  a  statute  of  New  Jersey  regulating 
the  taking  of  oysters  and  shells  on  banks  or  beds  unthm  that  State, 
and  which  excluded  inhabitants  and  residents  of  other  States  from 
the  privilege  of  taking  or  gathering  clams,  oysters,  or  shells  on  any 
of  the  rivers,  bays,  or  waters  in  New  Jersey,  not  wholly  owned  by 
some  person  residing  in  the  State.     The  statute  was  sustained  upon 


SECT.  II.]  BLAKE   V.    McCLUNG.  861 

the  ground  that  it  only  regulated  the  use  of  the  common  propert}^  of 
the  citizens  of  New  Jersey,  which  could  not  be  enjoyed  by  others 
without  the  tacit  consent  or  the  express  permission  of  the  sovereign 
having  the  power  to  regulate  its  use.  The  court  said  :  "  The  oyster 
beds  belonging  to  a  State  may  be  abundantly  sufficient  for  the  use 
of  the  citizens  of  that  State,  but  might  be  totally  exhausted  and 
destroyed  if  the  legislature  could  not  so  regulate  the  use  of  them  as 
to  exclude  the  citizens  of  the  other  States  from  taking  them,  except 
under  such  limitations  and  restrictions  as  the  laws  may  prescribe." 

Upon  these  grounds  rests  the  decision  in  McCready  v.  Virginia, 
94  U.  S.  391,  395,  sustaining  a  statute  of  Virginia  prohibiting  the 
citizens  of  other  States  from  planting  oysters  in  a  river  in  that  State 
where  the  tide  ebbed  and  flowed.  Chief  Justice  Waite,  speaking 
for  the  court  in  that  case,  said :  *'  These  [the  fisheries  of  the  State] 
remain  under  the  exclusive  control  of  the  State,  which  has  conse- 
quently the  right,  in  its  discretion,  to  appropriate  its  tide  waters 
and  their  beds  to  be  used  by  its  people  as  a  common  for  taking  and 
cultivating  fish,  so  far  as  it  may  be  done  without  obstructing  navi- 
gation. Such  an  appropriation  is  in  effect  nothing  more  than  a 
regul3,tion  of  the  use  by  the  people  of  their  common  property.  The 
right  which  the  people  of  the  State  thus  acquire  comes  not  from 
their  citizenship  alone,  but  from  their  citizenship  and  property  com- 
bined. It  is  in  fact  a  property  right,  and  not  a  mere  privilege  or 
immunity  of  citizenship."  Consequently,  the  decision  was  that  the 
citizens  of  one  State  were  not  invested  by  the  Constitution  of  the 
United  States  "  with  any  interest  in  the  common  property  of 
the  citizens  of  another  State." 

[The  court  also  quotes  from  Paul  v.  Virginia,  sKpra,  p.  855.] 
Ward  V.  Maryland,  12  Wall.  418,  430,  involved  the  validity  of  a 
statute  of  Maryland  requiring  all  traders,  not  being  permanent 
residents  of  the  State,  to  take  out  licenses  for  the  sale  of  goods, 
wares,  or  merchandise  in  Maryland,  other  than  agricultural  products 
and  articles  there  manufactured.  This  court  said  :  "  Attempt  will 
not  be  made  to  define  the  words  '  privileges  and  immunities,'  or  to 
specify  the  rights  which  they  are  intended  to  secure  and  protect, 
beyond  what  may  be  necessary  to  the  decision  of  the  case  before 
the  court.  Beyond  doubt  those  words  are  words  of  very  compre- 
hensive meaning,  but  it  will  be  sufficient  to  say  that  the  clause 
plainly  and  unmistakably  secures  and  protects  the  right  of  a  citizen 
of  one  State  to  pass  into  any  other  State  of  the  Union  for  the  pur- 
pose of  engaging  in  lawful  commerce,  trade,  or  business  without 
molestation  ;  to  acquire  personal  property,  to  take  and  hold  real 
estate,  to  maintain  actions  in  the  courts  of  the  State,  and  to  be 
exempt  from  any  higher  taxes  or  excises  than  are  imposed  by  the 
State  upon  its  own  citizens.  Comprehensive  as  the  power  of  the 
States  is  to  lay  and  collect  taxes  and  excises,  it  is  nevertheless  clear, 
in  the  judgment  of  the  court,  that  the  power  cannot  be  exercised  to 


802  CONSTITUTIONAL   RULES    OF   STATE   COMITY.         [CHAP.  X. 

any  extent  in  a  manner  forbidden  by  the  Constitution ;  and  inas- 
much as  the  Constitution  provides  that  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States,  it  follows  that  the  defendant  might  lawfully  sell,  or 
offer  or  expose  for  sale,  within  the  district  described  in  the  indict- 
ment, any  goods  which  the  permanent  residents  of  the  State  might 
sell,  or  offer  or  expose  for  sale  in  that  district,  without  being  sub- 
jected to  any  higher  tax  or  excise  than  that  exacted  by  law  of  such 
permanent  residents." 

In  the  Slaughter-House  Cases,  16  Wall.  36,  77,  the  court,  referring 
to  wliat  was  said  in  Paul  v.  Virginia,  above  cited,  in  reference  to 
the  scope  and  meaning  of  section  2  of  Article  IV.  of  the  Constitution, 
said :  ''  The  constitutional  provision  there  alluded  to  did  not  create 
those  rights  which  it  called  privileges  and  immunities  of  citizens  of 
the  States,  It  threw  around  them  in  that  clause  no  security  for  the 
citizen  of  the  State  in  which  they  were  claimed  or  exercised.  Nor 
did  it  profess  to  control  the  power  of  the  State  governments  over 
the  rights  of  its  own  citizens.  Its  sole  purpose  was  to  declare  to 
the  several  States,  that  whatever  those  rights,  as  you  grant  or 
establish  them  to  your  own  citizens,  or  as  you  limit  or  qualify, 
or  impose  restrictions  on  tlieir  exercise,  the  same,  neither  more  nor 
less,  shall  be  the  measure  of  the  rights  of  citizens  of  other  States 
within  your  jurisdiction." 

In  Cole  V.  Cunningham,  133  U.  S.  107,  113,  114,  this  court  cited 
with  approval  the  language  of  Justice  Story,  in  his  Commentaries  on 
the  Constitution,  to  the  effect  that  the  object  of  the  constitutional 
guarantee  was  to  confer  on  the  citizens  of  the  several  States  "  a 
general  citizenship,  and  to  communicate  all  the  privileges  and  im- 
munities which  the  citizens  of  the  same  State  Avould  be  entitled  to 
under  like  circumstances,  and  this  includes  the  right  to  institute 
actions." 

These  principles  have  not  been  modified  by  any  subsequent  deci- 
sion of  this  court. 

The  foundation  npon  which  the  above  cases  rest  cannot  however 
stand,  if  it  be  adjudged  to  be  in  the  power  of  one  State,  when 
establishing  regulations  for  the  conduct  of  private  business  of  a 
particular  kind,  to  give  its  own  citizens  essential  privileges  con- 
nected with  that  business  which  it  denies  to  citizens  of  other  States. 
By  the  statute  in  question  the  British  company  was  to  be  deemed 
and  taken  to  be  a  corporation  of  Tennessee,  with  authority  to  carry 
on  its  business  in  that  State.  It  was  the  right  of  citizens  of  Ten- 
nessee to  deal  with  it,  as  it  was  their  right  to  deal  with  corporations 
created  by  Tennessee.  And  it  was  equally  the  right  of  citizens  of 
other  States  to  deal  with  that  corporation.  The  State  did  not 
assume  to  declare,  even  if  it  could  legally  have  declared,  that  that 
company,  being  admitted  to  do  business  in  Tennessee,  should  trans- 
act business  only  with  citizens  of  Tennessee  or  should  not  transact 


SECT.  II.]  BLAKE  V.   McCLUNG.  863 

business  with  citizens  of  other  States.  No  one  would  question  the 
right  of  the  individual  plaintiffs  in  error,  although  not  residents  of 
Tennessee,  to  sell  their  goods  to  that  corporation  upon  such  terms 
in  respect  of  payment  as  might  be  agreed  upon,  and  to  ship  them 
to  the  corporation  at  its  place  of  business  in  that  State.  But  tlie 
enjoyment  of  these  rights  is  materially  obstructed  by  the  statute 
in  question ;  for  that  statute,  by  its  necessary  operation,  excludes 
citizens  of  other  States  from  transacting  business  with  that  cor- 
poration upon  terms  of  equality  wuth  citizens  of  Tennessee.  By 
force  of  the  statute  alone,  citizens  of  other  States,  if  they  contracted 
at  all  with  tlie  British  corporation,  must  have  done  so  subject  to 
the  onerous  condition  that  if  the  corporation  became  insolvent  its 
assets  in  Tennessee  should  first  be  applied  to  meet  its  obligations 
to  residents  of  that  State,  although  liability  for  its  debts  and  engage- 
ments was  '•'  to  be  enforced  in  the  manner  provided  by  law  for  the 
application  of  the  property  of  natural  persons  to  the  payment  of 
their  debts,  engagements,  and  contracts."  But,  clearly,  the  State 
could  not  in  that  mode  secure  exclusive  privileges  to  its  own  citizens 
in  matters  of  business.  If  a  State  should  attempt,  by  statute  regu- 
lating tlie  distribution  of  the  property  of  insolvent  individuals  among 
their  creditors,  to  give  priority  to  the  claims  of  such  individual 
creditors  as  were  citizens  of  that  State  over  the  claims  of  individual 
creditors,  citizens  of  other  States,  such  legislation  would  be  repug- 
nant to  the  Constitution  upon  the  ground  that  it  withheld  from 
citizens  of  other  States  as  such,  and  because  they  were  such,  privi- 
leges granted  to  citizens  of  the  State  enacting  it.  Can  a  different 
principle  apply,  as  between  individual  citizens  of  the  several  States, 
when  the  assets  to  be  distributed  are  the  assets  of  an  insolvent 
private  corporation  lawfully  engaged  in  business  and  having  the 
power  to  contract  with  citizens  residing  in  States  other  than  the 
one  in  which  it  is  located? 

[The  court  states  that  in  distributing  the  assets  of  a  corporation 
in  equity  the  rule  is  to  recognize  resident  and  non-resident  creditors 
as  entitled  to  share  on  the  same  footing.] 

We  hold  such  discrimination  against  citizens  of  other  States  to 
be  repugnant  to  the  second  section  of  the  fourth  article  of  the 
Constitution  of  the  United  States,  although,  generally  speaking, 
the  State  has  the  power  to  prescribe  the  conditions  upon  which 
foreign  corporations  may  enter  its  territory  for  purposes  of  business. 
Such  a  power  cannot  be  exerted  with  the  effect  of  defeating  or  im- 
pairing rights  secured  to  citizens  of  the  several  States  by  the  supreme 
law  of  the  land.  Indeed,  all  the  powers  possessed  by  a  State  must 
be  exercised  consistently  with  the  privileges  and  immunities  granted 
or  protected  b}'-  the  Constitution  of  the  United  States. 

We  must  not  be  understood  as  saying  that  a  citizen  of  one  State 
is  entitled  to  enjoy  in  another  State  every  privilege  that  may  be 


S64:  CONSTITUTIONAL   RULES   OP   STATE   COiMlTY.         [CHAP.  X. 

given  iu  the  latter  to  its  own  citizens.  There  are  privileges  that 
may  be  accorded  by  a  State  to  its  own  people  in  which  citizens  of 
other  States  may  not  participate  except  in  conformity  to  such  rea- 
sonable regulations  as  may  be  established  by  the  State.  For  instance, 
a  State  cannot  forbid  citizens  of  other  States  from  suing  in  its  courts, 
that  right  being  enjoyed  by  its  own  people  ;  but  it  may  require  a 
non-resident,  although  a  citizen  of  another  State,  to  give  bond  for 
costs,  although  such  bond  be  not  required  of  a  resident.  Such  a 
regulation  of  the  internal  affairs  of  a  State  cannot  reasonably  be 
characterized  as  hostile  to  the  fundamental  rights  of  citizens  of 
other  States.  So,  a  State  may,  by  rule  uniform  in  its  operation 
as  to  citizens  of  the  several  States,  require  residence  within  its 
limits  for  a  given  time  before  a  citizen  of  another  State  who  becomes 
a  resident  thereof  shall  exercise  the  right  of  suffrage  or  become 
eligible  to  office.  It  has  never  been  supposed  that  regulations  of 
that  character  materially  interfered  with  the  enjoyment  by  citizens 
of  each  State  of  the  privileges  and  immunities  secured  by  the  Con- 
stitution to  citizens  of  the  several  States.  The  Constitution  forbids 
only  such  legislation  affecting  citizens  of  the  respective  States  as 
will  substantially  or  practically  put  a  citizen  of  one  State  in  a  condi- 
tion of  alienage  when  he  is  within  or  when  he  removes  to  another 
State,  or  when  asserting  in  another  State  the  rights  that  commonly 
appertain  to  those  who  are  part  of  the  political  community  known  as 
the  People  of  the  United  States,  by  and  for  whom  the  government 
of  the  Union  was  ordained  and  established. 

Nor  must  we  be  understood  as  saying  that  a  State  may  not,  by  its 
courts,  retain  within  its  limits  the  assets  of  a  foreign  corporation, 
in  order  that  justice  may  be  done  to  its  own  citizens ;  nor,  by  appro- 
priate action  of  its  judicial  tribunals,  see  to  it  that  its  own  citizens 
are  not  unjustly  discriminated  against  by  reason  of  the  administra- 
tion in  other  States  of  the  assets  there  of  an  insolvent  corporation 
doing  business  within  its  limits.  For  instance,  if  the  Embreeville 
Company  had  property  in  Virginia  at  the  time  of  its  insolvency,  the 
Tennessee  court  administering  its  assets  in  that  State  could  take  into 
account  what  a  Virginia  creditor,  seeking  to  participate  in  the  distri- 
bution of  the  company's  assets  in  Tennessee,  had  received  or  would 
receive  from  the  company's  assets  in  Virginia,  and  make  such  order 
touching  the  assets  of  the  company  in  Tennessee  as  would  protect 
Tennessee  creditors  against  wrongful  discrimination  arising  from 
the  particular  action  taken  in  Virginia  for  the  benefit  of  creditors 
residing  in  that  Commonwealth. 

We  adjudge  that  when  the  general  property  and  assets  of  a  private 
corporation,  lawfully  doing  business  in  a  State,  are  in  course  of 
administration  by  the  courts  of  such  State,  creditors  who  are  citizens 
of  other  States  are  entitled,  under  the  Constitution  of  the  United 
States,  to  stand  upon  the  same  plane  with  creditors  of  like  class  who 


SECT.  II.]  BLAKE    V.   MCCLUNG.  865 

are  citizens  of  such  State,  and  cannot  be  denied  equality  of  right 
simply  because  they  do  not  reside  in  that  State,  but  are  citizens 
residing  in  other  States  of  the  Union.  The  individual  plaintiffs  in 
error  were  entitled  to  contract  with  tliis  British  corporation,  lawfully 
doing  business  in  Tennessee,  and  deemed  and  taken  to  be  a  corpora- 
tion of  that  State  ;  and  no  rule  in  the  distribution  of  its  assets  aihong 
creditors  could  be  applied  to  them  as  resident  citizens  of  Ohio,  and 
because  they  were  not  residents  of  Tennessee,  that  was  not  applied 
by  the  courts  of  Tennessee  to  creditors  of  like  character  who  were 
citizens  of  Tennessee. 

As  to  the  plaintiff  in  error,  the  Hull  Coal  and  Coke  Company  of 
Virginia,  different  considerations  must  govern  our  decision.  It  has 
long  been  settled  that,  for  purposes  of  suit  by  or  against  it  in  the 
courts  of  the  United  States,  the  members  of  a  corporation  are  to  be 
conclusively  presumed  to  be  citizens  of  the  State  creating  such  cor- 
poration :  Louisville,  Cincinnati,  &  Charleston  Railroad  Co.  v.  Let- 
son,  2  How.  497;  Covington  Drawbridge  Co.  v.  Shepherd,  20  How. 
227,  232  ;  Ohio  &  Miss.  Railroad  Co.  v.  Wheeler,  1  Black,  286,  296; 
Steamship  Co.  v.  Tugman,  106  U.  S.  118,  120;  Barrow  Steamship 
Co.  V.  Kane,  170  U.  S.  100;  and  therefore  it  has  been  said  that  a 
corporation  is  to  be  deemed,  for  such  purposes,  a  citizen  of  the  State 
under  whose  laws  it  was  organized.  But  it  is  equally  well  settled, 
and  we  now  hold,  that  a  corporation  is  not  a  citizen  within  the  mean- 
ing of  the  constitutional  provision  that  "the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States."  Paul  v.  Virginia,  8  Wall.  168,  178,  179  ;  Ducat  v. 
Chicago,  10  Wall.  410,  415 ;  Liverpool  Ins.  Co.  v.  Massachusetts,  10 
Wall.  566,  573.  The  Virginia  corporation,  therefore,  cannot  invoke 
that  provision  for  protection  against  the  decree  of  the  State  court 
denying  its  right  to  participate  upon  terms  of  equality  with  Tennessee 
creditors  in  the  distribution  of  the  assets  of  the  British  corporation 
in  the  hands  of  the  Tennessee  court. 

Since,  however,  a  corporation  is  a  "person"  within  the  meaning 
of  the  Fourteenth  Amendment  (Santa  Clara  County  v.  Southern 
Pacific  Railroad  Co.,  118  U.  S.  394,  396 ;  Smyth  v.  Ames,  169  U.  S. 
466,  522),  may  not  the  Virginia  corporation  invoke  for  its  protection 
the  clause  of  the  amendment  declaring  that  no  State  shall  deprive 
any  person  of  property  without  due  process,  nor  deny  to  any  person 
witliin  its  jurisdiction  the  equal  protection  of  the  laws  ? 

We  are  of  opinion  that  this  question  must  receive  a  negative 
answer.  Althougli  this  court  has  adjudged  that  the  prohibitions  of 
the  Fourteenth  Amendment  refer  to  all  the  instrumentalities  of  the 
State,  to  its  legislative,  executive,  and  judicial  authorities  (£Jx  parte 
Virginia,  100  U.  S.  336,  346,  347 ;  Yick  Wo  v.  Hopkins,  118  U.  S. 
356,  373 ;  Scott  v.  McNeal,  154  U.  S.  34,  45;  and  Chicago,  Burlington, 
&c.  R.  R.  Co.  V.  Chicago,  166  U.  S.  226,  233),  it  does  not  follow  that, 
within  the  meaning  of  that  amendment,  the  judgment  below  deprived 

55 


866  CONSTITUTIONAL   RULES   OF   STATE    COMITY.         [cHAP.  X. 

the  Virginia  corporation  of  property  without  due  process  of  law, 
simply  because  its  claim  was  subordinated  to  the  claims  of  the 
Tennessee  creditors.  That  corporation  was  not,  in  any  legal  sense, 
deprived  of  its  claim,  nor  was  its  right  to  reach  the  assets  of  the 
British  corporation  in  other  States  or  countries  disputed.  It  was 
only  denied  the  right  to  participate  upon  terms  of  equality  with 
Tennessee  creditors  in  the  distribution  of  particular  assets  of  another 
corporation  doing  business  in  that  State.  It  had  notice  of  the  pro- 
ceedings in  the  State  court,  became  a  party  to  those  proceedings,  and 
the  rights  asserted  by  it  were  adjudicated.  If  the  Virginia  corpora- 
tion cannot  invoke  the  protection  of  the  second  section  of  Article  IV. 
of  the  Constitution  of  the  United  States  relating  to  the  privileges 
and  immunities  of  citizens  in  the  several  States,  as  its  co-plaintiffs 
in  error  have  done,  it  is  because  it  is  not  a  citizen  within  the  mean- 
ing of  that  section  ;  and  if  the  State  court  erred  in  its  decree  in  refer- 
ence to  that  corporation,  the  latter  cannot  be  said  to  have  been 
thereby  deprived  of  its  property  without  due  process  of  law  within 
the  meaning  of  the  Constitution. 

It  is  equally  clear  that  the  Virginia  corporation  cannot  rely  upon 
the  clause  declaring  that  no  State  shall  "  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws."  That  prohibition 
manifestly  relates  only  to  the  denial  by  the  State  of  equal  protection 
to  persons  "within  its  jurisdiction."  Observe,  that  the  prohibition 
against  the  deprivation  of  property  without  due  process  of  law  is 
not  qualified  by  the  words  '"'within  its  jurisdiction,"  while  those 
words  are  found  in  the  succeeding  clause  relating  to  the  equal  pro- 
tection of  the  laws.  The  court  cannot  assume  that  those  words 
were  inserted  without  any  object,  nor  is  it  at  liberty  to  eliminate 
thera  from  the  Constitution  and  to  interpret  the  clause  in  question 
as  if  they  were  not  to  be  found  in  that  instrument.  AVithout  at- 
tempting to  state  what  is  the  full  import  of  the  words,  "  within  its 
jurisdiction,"  it  is  safe  to  say  that  a  corporation  not  created  by 
Tennessee,  nor  doing  business  there  under  conditions  that  subjected 
it  to  process  issuing  from  the  courts  of  Tennessee  at  the  instance  of 
suitors,  is  not,  under  the  above  clause  of  the  Fourteenth  Amendment, 
within  the  jurisdiction  of  that  State.  Certainly,  when  the  statute  in 
question  was  enacted  the  Virginia  corporation  was  not  within  the 
jurisdiction  of  Tennessee.  So  far  as  the  record  discloses,  its  claim 
against  the  Embreeville  Company  was  on  account  of  coke  sold  and 
shipped  from  Virginia  to  the  latter  corporation  at  its  place  of  busi- 
ness in  Tennessee.  It  does  not  appear  to  have  been  doing  business 
in  Tennessee  under  the  statute  here  involved,  or  under  any  statute 
that  would  bring  it  directly  under  the  jurisdiction  of  the  courts  of 
Tennessee  by  service  of  process  on  its  officers  or  agents.  Kor  do  we 
think  it  came  within  the  jurisdiction  of  Tennessee,  within  the  mean- 
ing of  the  amendment,  simply  by  presenting  its  claim  in  the  State 
court  and  thereby  becoming  a  party  to  this  cause.     Under  any  other 


SECT.  III.]  EX   PARTE   REGGEL.  867 

interpretation  the  Fourteenth  Amendment  would  be  given  a  scope 
not  contemplated  by  its  framers  or  by  the  people,  nor  justified  by  its 
language.  We  adjudge  that  the  statute,  so  far  as  it  subordinates  the 
claims  of  private  business  corporations  not  within  the  jurisdiction 
of  the  State  of  Tennessee  (although  such  private  corporations  may 
be  creditors  of  a  corporation  doing  business  in  the  State  under  the 
authority  of  that  statute),  to  the  claims  against  the  latter  corpora- 
tion of  creditors  residing  in  Tennessee,  is  not  a  denial  of  the  "  equal 
protection  of  the  laws  "  secured  by  the  Fourteenth  Amendment  to 
persons  within  the  jurisdiction  of  the  State,  however  unjust  such  a 
regulation  may  be  deemed. 

What  may  be  the  effect  of  the  judgment  of  this  court  in  the 
present  case  upon  the  rights  of  creditors  not  residing  in  the  United 
States,  it  is  not  necessary  to  decide.  Those  creditors  are  not  before 
the  court  on  this  writ  of  error. 

The  final  judgment  of  the  Supreme  Court  of  Tennessee  imust  he 
affirmed  as  to  the  Hull  Coal  and  Coke  Company^  because  it  did 
not  deny  to  that  corporation  any  right,  privilege,  or  immunity 
secured  to  it  by  the  Constitution  of  the  United  States.  {Rev. 
Stat.  §  709.)  As  to  the  other  plaintiffs  in  error,  citizens  of 
Ohio,  the  judgment  m,ust  be  reversed,  and  the  cause  remanded 
for  further  proceedings  not  inconsistent  ivith  this  opinion  ;  and 
it  is  so  ordered.^ 


Section  III.  —  Extradition  between  States. 


Ex  PARTE  EEGGEL. 
114  United  States,  642.     1885. 

[This  was  an  application  in  a  territorial  court  of  Utah  for  release 
from  arrest  under  warrant  of  the  governor  of  that  Territory  for 
extradition  on  the  demand  of  the  governor  of  Pennsylvania.  The 
applicant  appealed  to  this  court  from  an  order  refusing  the  writ  of 
habeas  corpus. '\ 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  case  arises  under  §§  5278  and  5279  of  the  Revised  Statutes 
of  the  United  States,  which  provide :  — 

"  Sec.  5278.  Whenever  the  executive  authority  of  any  State  or 
Territory  demands   any  person  as  a   fugitive   from   justice   of   the 

1  Mr.  .Tdstice  Brewer  delivered  a  dissenting  opinion,  in  which  Mr.  Chief 
Justice  Fuller  concurred. 


868  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 

executive  authority  of  any  State  or  Territory  to  wliich  such  person 
has  fled,  and  produces  a  copy  of  an  indictment  found  or  an  affidavit 
made  before  a  magistrate  of  any  State  or  Territory,  charging  the 
person  demanded  with  having  committed  treason,  felony,  or  other 
crime,  certified  as  authentic  by  the  governor  or  chief  magistrate 
of  the  State  or  Territory  from  whence  the  person  so  charged 
has  fled,  it  shall  be  the  duty  of  the  executive  authority  of  the 
State  or  Territory  to  which  such  person  has  fled  to  cause  him 
to  be  arrested  and  secured,  and  to  cause  notice  of  the  arrest  to  be 
given  to  the  executive  authority  making  such  demand,  or  to  the 
agent  of  such  authority  appointed  to  receive  the  fugitive,  and  to 
cause  the  fugitive  to  be  delivered  to  such  agent  when  he  shall  appear. 
If  no  such  agent  appears  within  six  months  from  the  time  of  the 
arrest,  the  prisoner  may  be  discharged.  All  costs  or  expenses 
incurred  in  the  apprehending,  securing,  and  transmitting  such  fugi- 
tive to  the  State  or  Territory  making  such  demand  shall  be  paid  by 
such  State  or  Territory. 

"  Sec.  5279.  Any  agent,  so  appointed,  who  receives  the  fugitive 
into  his  custody,  shall  be  empowered  to  transport  him  to  the  State 
or  Territory  from  which  he  has  fled.  And  every  person  w^ho,  by 
force,  sets  at  liberty  or  rescues  the  fugitive  from  such  agent  while  so 
transporting  him,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  one  year."     1  Stat.  302,  ch.  7,  §§1,  2. 

It  is  not  necessary  to  consider  the  question  suggested  by  counsel 
as  to  the  right  of  the  governor  of  the  Territory  to  have  withheld  the 
papers  upon  which  he  based  his  warrant  for  the  arrest  of  the 
accused  ;  for  the  record  shows  that  the  requisition  and  accompany- 
ing papers  from  the  governor  of  Pennsylvania  constituted  the  evi- 
dence upon  which  he  acted,  and  were  submitted  to  the  court  to  which 
the  writ  of  habeas  corpus  was  returned. 

Under  the  act  of  Congress,  it  became  the  duty  of  the  governor  of 
Utah  to  cause  the  arrest  of  Reggel,  and  his  delivery  to  the  agent 
appointed  to  receive  him,  when  it  appeared :  1.  That  the  demand  by 
the  executive  authority  of  Pennsylvania  was  accompanied  by  a  copy 
of  an  indictment,  or  affidavit  made  before  a  magistrate,  charging 
Eeggel  with  having  committed  treason,  felony,  or  other  crime  within 
that  State,  and  certified  as  authentic  by  her  governor.  2.  That  the 
person  demanded  was  a  fugitive  from  justice. 

The  first  of  these  conditions  was  met  by  the  production  to  the 
governor  of  Utah  of  the  indictment  (duly  certified  as  authentic)  of 
the  grand  jury  of  the  Court  of  Quarter  Sessions  of  the  Peace  for 
the  City  and  County  of  Philadelphia,  Pennsylvania,  w-herein  the 
accused  was  charged  with  having  committed  the  crime  of  obtaining 
by  false  pretences  certain  goods  with  the  intent  to  cheat  and  defraud 
the  persons  therein  named  ;  which  offence,  as  was  made  to  appear 
from  the  statutes  of  that  Commonwealth  (a  copy  of  which,  duly 
certified   as  authentic,    accompanied   the   indictment),    is   a   misde- 


SECT.  III.]  EX    PARTE    REGGEL.  869 

iiieanor   under  the  laws  of  Pennsylvania,  punishable  by  a  fine  not 
exceeding  $oOO,  and  imprisonment  not  exceeding  three  years. 

It  was  objected  in  tlie  court  of  original  jurisdiction  that  there 
could  be  no  valid  requisition  based  upon  an  indictment  for  an  offence 
less  than  a  felony.  This  view  is  erroneous.  It  was  declared  in 
Kentucky  v.  Dennison,  24  How.  66,  99,  that  the  .words  "  treason, 
felony,  or  other  crime"  in  section  2  of  Article  I.  of  the  Constitution 
include  every  offence,  from  the  highest  to  the  lowest,  known  to  the 
law  of  the  State  from  which  the  accused  had  fled,  including  mis- 
demeanors. It  was  there  said  by  Chief  Justice  Taney,  speaking  for 
the  whole  court,  that,  looking  to  the  words  of  the  C(jnstitution,  "to 
the  obvious  policy  and  necessity  of  this  provision  to  preserve  har- 
mony between  the.  States  and  order  and  law  within  their  respective 
borders,  and  to  its  early  adoption  by  the  Colonies,  and  then  by  the 
Confederate  States  whose  mutual  interest  it  was  to  give  each  other 
aid  and  support  whenever  it  was  needed,  the  conclusion  is  irresistible, 
that  this  compact  engrafted  in  the  Constitution  included,  and  was 
intended  to  include,  every  offence  made  punishable  by  the  law  of  the 
State  in  which  it  was  committed."  It  is  within  the  power  of  each 
State,  except  as  her  authority  may  be  limited  by  the  Constitution  of 
the  United  States,  to  declare  what  shall  be  offences  against  her  laws  ; 
and  citizens  of  other  States,  when  witliin  her  jurisdiction,  are  subject 
to  those  laws.  In  recognition  of  this  right,  so  reserved  to  the 
States,  the  words  of  the  clause  in  reference  to  fugitives  from  jus- 
tice were  made  sufficiently  comprehensive  to  include  every  offence 
against  the  laws  of  the  demanding  State,  without  exception  as  to 
the  nature  of  the  crime. 

Although  the  constitutional  ])rovision  in  question  does  not,  in 
terms,  refer  to  fugitives  from  the  justice  of  any  State,  who  may  be 
found  in  one  of  the  Territories  of  the  United  States,  the  act  of 
Congress  has  equal  application  in  that  class  of  cases,  and  the  words 
"  treason,  felony,  or  other  crime  "  must  receive  tlie  same  interpreta- 
tion, when  the  demand  for  the  fugitive  is  made,  under  that  act, 
upon  the  governor  of  a  Territory,  as  when  made  upon  the  executive 
authority  of  one  of  the  States  of  the  Union. 

Another  proposition  advanced  in  behalf  of  the  appellant  is,  that  the 
indictment  which  accompanied  the  requisition  does  not  sufficiently 
charge  the  commission  of  any  crime  ;  of  which  fact  it  was  the  duty 
of  the  governor  of  Utah  to  take  notice,  and  which  the  court  may  not 
ignore  in  determining  whether  the  appellant  is  lawfully  in  custody . 
In  connection  with  this  proposition,  counsel  discusses,  in  the  ligl  t 
of  the  adjudged  cases,  the  general  question  as  to  the  authority  of  a 
court  of  the  State  or  Territory,  in  which  the  fugitive  is  found,  to 
discharge  him  from  arrest,  whenever  in  its  judgment  the  indictment, 
according  to  the  technical  rules  of  criminal  pleading,  is  defective  in 
its  statement  of  tlie  crime  charged.  It  is  sufficient  for  the  pur- 
poses of  the  present  case  to  say  that,  by  the  laws  of  Pennsylvania, 


870  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X 

every  indictment  is  to  be  deemed  and  adjudged  sufficient  and  good 
in  law  which  charges  the  crime  substantially  in  the  language  of 
the  act  of  assembly  prohibiting  its  commission  and  prescribing 
the  punishment  therefor,  or,  if  at  common  law,  so  plainly  that  the 
nature  of  the  offence  charged  may  be  easily  understood  by  the 
jury ;  and  that  _the  indictment,  which  accompanied  the  requisi- 
tion of  the  governor  of  Pennsylvania,  does  charge  the  crime  sub- 
stantially in  the  language  of  her  statute.  That  Commonwealth  has 
the  right  to  establish  the  forms  of  pleadings  and  process  to  be 
observed  in  her  own  courts,  in  both  civil  and  criminal  cases,  subject 
only  to  those  provisions  of  the  Constitution  of  the  United  States 
involving  the  protection  of  life,  liberty,  and  property  in  all  the  States 
of  the  Union. 

The  only  question  remaining  to  be  considered  relates  to  the 
alleged  want  of  competent  evidence  before  the  governor  of  Utah,  at 
the  time  he  issued  the  warrant  of  arrest,  to  prove  that  the  appellant 
was  a  fugitive  from  the  justice  of  Pennsylvania.  Undoubtedly  the 
act  of  Congress  did  not  impose  upon  the  executive  authority  of  the 
Territory  the  duty  of  surrendering  the  appellant,  unless  it  was  made 
to  appear,  in  some  proper  way,  that  he  was  a  fugitive  from  justice. 
In  other  words,  the  appellant  was  entitled,  under  the  act  of  Con- 
gress, to  insist  upon  proof  that  he  was  within  the  demanding  State 
at  the  time  he  is  alleged  to  have  committed  the  crime  charged,  and 
subsequently  withdrew  from  her  jurisdiction,  so  that  he  could  not  be 
reached  by  her  criminal  process.  The  statute,  it  is  to  be  observed, 
does  not  prescribe  the  character  of  such  proof ;  but  that  the  execu- 
tive authority  of  the  Territory  was  not  required,  by  the  act  of  Con- 
gress, to  cause  the  arrest  of  appellant,  and  his  delivery  to  the  agent 
appointed  by  the  governor  of  Pennsylvania,  without  proof  of  the  fact 
that  he  was  a  fugitive  from  justice,  is,  in  our  judgment,  clear  from 
the  language  of  that  act.  Any  other  interpretation  would  lead  to  the 
conclusion  that  the  mere  requisition  by  the  executive  of  the  demand- 
ing State,  accompanied  by  the  copy  of  an  indictment,  or  an  affidavit 
before  a  magistrate,  certified  by  him  to  be  authentic,  charging  the 
accused  with  crime  committed  within  her  limits,  imposes  upon  the 
executive  of  the  State  or  Territory  where  the  accused  is  found 
the  duty  of  surrendering  him,  although  he  may  be  satisfied,  from 
incontestable  proof,  that  the  accused  had,  in  fact,  never  been  in 
the  demanding  State,  and,  therefore,  could  not  be  said  to  have  fled 
from  its  justice.  Upon  the  executive  of  the  State  in  which  the 
accused  is  found  rests  the  responsibility  of  determining,  in  some 
legal  mode,  whether  he  is  a  fugitive  from  the  justice  of  the  demand- 
ing State.  He  does  not  fail  in  duty  if  he  makes  it  a  condition  pre- 
cedent to  the  surrender  of  the  accused  that  it  be  shown  to  him,  by 
competent  proof,  that  the  accused  is,  in  fact,  a  fugitive  from  the 
justice  of  the  demanding  State. 

Did  it  sufficiently  appear  that  the  appellant  was,  as  represented  by 


I 


SECT.  III.]  EX   PARTE   REGGEL.  871 

the  executive  authority  of  Pennsylvania,  a  fugitive  from  the  justice 
of  that  Commonwealth?  We  are  not  justified  by  the  record  before 
us  in  saying  that  the  governor  of  Utah  should  have  held  the  evidence 
inadequate  to  establish  that  fact.  The  warrant  of  arrest  refers  to 
an  affidavit  taken  before  a  notary  jjublic  of  Pennsylvania  show- 
ing ReggePs  flight  from  that  Commonwealth.  There  was  no  such 
affidavit;  but  the  reference,  manifestly,  was  to  the  affidavit  made  by 
Frederick  Centner,  which  recited  the  finding  by  the  grand  jury  of  the 
city  and  county  of  Philadelphia,  of  a  true  bill  of  indictment  charg- 
ing Reggel  with  "the  crime  of  false  pretences,"  and  stating  that  he 
"  is  a  fugitive  from  justice,"  and  was  then  in  Salt  Lake  City,  Utah 
Territory.  This  is  sworn  to,  and  is  attested  by  the  seal  of  the  Court 
of  Quarter  Sessions,  —  the  court  in  which  the  prosecution  is  pending. 
It  is  not  entirely  clear  from  the  record,  as  presented  to  us,  what  is 
the  official  character  of  the  person  before  whom  the  aflGldavit  was 
made.  The  reasonable  inference  is,  that  the  affidavit  was  made  in 
the  court  where  the  prosecution  is  pending,  and  that  it  is  one  of  the 
papers  accompanying  the  requisition  of  the  governor  of  Pennsylvania, 
and  which  he  certified  to  be  authentic. 

It  is  contended  that  Centner's  affidavit  that  Eeggel  is  a  fugitive 
from  justice  is  the  statement  of  a  legal  conclusion,  and  is  materially 
defective  in  not  setting  out  the  facts  upon  which  that  conclusion 
rested.  Although  that  statement  presents,  in  some  aspects  of  it,  a 
question  of  law,  we  cannot  say  that  the  governor  of  Utah  erred  in 
regarding  it  as  the  statement  of  a  fact,  and  as  sufficient  evidence  that 
appellant  had  fled  from  the  State  in  which  he  stood  charged  with  the 
commission  of  a  particular  crime,  on  a  named  day,  at  the  city  and 
county  of  Philadelphia,  especially  as  no  opposing  evidence  was 
brought  to  his  attention.  If  the  determination  of  that  fact  by  the 
governor  of  Utah  upon  evidence  introduced  before  him  is  subject  to 
judicial  review,  upon  habeas  corpus,  the  accused,  in  custod}',  under 
his  warrant, —  which  recites  the  demand  of  the  governor  of  Pennsyl- 
vania, accompanied  by  an  authentic  indictment  charging  him,  sub- 
stantially in  the  language  of  her  statutes,  with  a  specific  crime 
committed  within  her  limits,  —  should  not  be  discharged  merely 
because,  in  the  judgment  of  the  court,  the  evidence  as  to  his  being  a 
fugitive  from  justice  was  not  as  full  as  might  properly  have  been 
required,  or  because  it  was  so  meagre  as,  perhaps,  to  admit  of 
a  conclusion  different  from  that  reached  by  him.  In  the  present 
case,  the  proof  before  the  governor  of  Utah  may  be  deemed  sufficient 
to  make  &  prima  facie  case  against  the  appellant  as  a  fugitive  from 
justice  within  the  meaning  of  the  act  of  Congress. 

Judgment  affirmed. 


872  CONSTITUTIONAL  RULES   OF   STATE   COMITY.         [CHAP.  X 


LASCELLES  v.   GEORGIA. 
148  United  States,  537.     1893. 

This  case  -^as  brought  here  by  writ  of  error  to  the  Supreme  Court 
of  the  State  of  Georgia.  The  single  Federal  question  presented  by 
the  record,  and  relied  on  to  confer  upon  this  court  the  jurisdiction 
to  review  the  judgment  of  the  Supreme  Court  of  Georgia,  complained 
of  by  the  plaintiff  in  error,  is  whether  a  fugitive  from  justice  who 
has  been  surrendered  by  one  State  of  the  Union  to  another  State 
thereof  upon  requisition  charging  him  with  the  commission  of  a 
specific  crime,  has,  under  the  Constitution  and  laws  of  the  United 
States,  a  right,  privilege,  or  immunity  to  be  exempt  from  indictment 
and  trial  in  the  State  to  which  he  is  returned,  for  any  other  or  differ- 
ent offence  than  that  designated  and  described  in  the  requisition 
proceedings  under  which  he  was  demanded  by  and  restored  to  such 
State,  without  first  having  an  opportunity  to  return  to  the  State 
from  which  he  was  extradited. 

[Plaintiff  in  error,  as  appears  from  the  opinion,  was  extradited 
from  New  York  to  Georgia  under  indictments  charging  him  (under 
the  name  of  Beresford)  with  cheating  and  larceny  under  trust. 
Before  trial  on  these  indictments  he  was  indicted  and  put  on  trial 
for  forgery,  against  his  objection  that  he  could  not  be  tried  for 
another  offence  than  that  for  which  he  was  extradited,  without 
reasonable  opportunity^  being  first  allowed  him  to  return  to  New 
York.  This  objection,  raised  at  various  stages  of  the  jDroceedings, 
was  overruled,  and  he  was  convicted,  and  the  conviction  was 
affirmed  in  the  Supreme  Court  of  the  State.] 

Mr.  Justice  Jackson,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  plaintiff  in  error  prosecutes  the  present  writ  of  error  to  review 
and  reverse  this  decision  of  the  Supreme  Court  of  Georgia,  claiming 
that  in  its  rendition  a  right,  privilege,  or  immunity  secured  to  him 
under  the  Constitution  and  laws  of  the  United  States,  specially  set 
up  and  insisted  on,  was  denied.  The  particular  right  claimed  to 
have  been  denied  is  the  alleged  exemption  from  indictment  and  trial 
except  for  the  specific  offences  on  which  he  had  been  surrendered. 

The  question  presented  for  our  consideration  and  determination 
is  whether  the  Constitution  and  laws  of  the  United  States  impose 
any  such  limitation  or  restriction  upon  the  power  and  authority  of 
a  State  to  indict  and  try  persons  charged  with  offences  against  its 
laws,  who  are  brought  within  its  jurisdiction  under  interstate  rendi- 
tion proceedings.  While  cases  involving  questions  of  international 
extradition  and  interstate  rendition  of  fugitives  from  justice  have 
frequently  been  before  this  court  for  decision,  this  court  has  not 
passed  upon  the  precise  point  here  presented.     The  second  clause 


SECT.  HI.]  LASCELLES   V.    GEORGIA.  873 

of  section  2,  article  4,  of  the  Constitution  of  the  United  States 
declares  that  "  a  person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice  and  be  found  in  another 
State,  shall,  on  demand  of  the  executive  authority  of  the  State  iruui 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime."  To  carry  this  provision  into  effect  Con- 
gress passed  the  act  of  February  12,  1793,  1  Stat.  302,  c.  7,  the  first 
and  second  sections  of  which  have  been  re-enacted  and  embodied  in 
sections  5278  and  5279  of  the  Revised  Statutes  of  the  United  States, 
prescribing  the  methods  of  procedure  on  the  part  of  the  State 
demanding  the  surrender"  of  the  fugitive,  and  providing  that  "  it 
shall  be  the  duty  of  the  executive  authority  of  the  State  or  Territory 
to  which  such  person  has  fled  to  cause  him  to  be  arrested  and 
secured,  and  cause  notice  of  the  arrest  to  be  given  to  the  executive 
authority  making  such  demand,  or  to  the  agent  of  such  authority 
appointed  to  receive  the  fugitive,  and  to  cause  the  fugitive  to  be 
delivered  to  such  agent  when  he  shall  appear,"  and  providing  further 
that  the  agent  "so  appointed,  who  shall  receive  the  fugitive  into 
his  custody,  shall  be  empowered  to  transport  him  to  the  State  or 
Territory  from  which  he  has  fled." 

Upon  these  provisions  of  the  organic  and  statutory  law  of  tlie 
United  States  rest  exclusively  the  right  of  one  State  to  demand,  and 
the  obligation  of  the  other  State  upon  which  the  demand  is  made  to 
surrender,  a  fugitive  from  justice.  Xow,  the  proposition  advanced 
on  behalf  of  the  plaintiff  in  error  in  support  of  the  Federal  right 
claimed  to  have  been  denied  him  is,  that,  inasmuch  as  interstate 
rendition  can  only  be  effected  when  the  person  demanded  as  a  fugitive 
from  justice  is  duly  charged  with  some  particular  offence  or  offences, 
his  surrender  upon  such  demand  carries  with  it  the  implied  condition 
that  he  is  to  be  tried  alo7ie  for  the  designated  crime,  and  that  in 
respect  to  all  offences  other  than  those  specified  in  the  demand  for 
his  surrender,  he  has  the  same  right  of  exemption  as  a  fugitive  from 
justice  extradited  from  a  foreign  nation.  This  proposition  assumes, 
as  is  broadly  claimed,  that  the  States  of  the  Union  are  independent 
governments,  having  the  full  prerogatives  and  powers  of  nations, 
except  what  have  been  conferred  upon  the  general  government,  and 
not  only  have  the  right  to  grant,  but  do,  in  fact,  afford  to  all  persons 
within  their  boundaries  an  asylum  as  broad  and  secure  as  that 
which  independent  nations  extend  over  their  citizens  and  inhabit- 
ants. Having  reached,  upon  this  assumption  or  by  this  process 
of  reasoning,  the  conclusion  that  the  same  rule  should  he  recognized 
and  applied  in  interstate  rendition  as  in  foreign  extradition  of  fugi- 
tives from  justice,  the  decision  of  this  court  in  United  States  v. 
Rauscher,  119  U.  S.  407  et  seq.,  is  invoked  as  a  controlling  authority 
on  the  question  under  consideration.  If  the  premises  on  which  this 
argument  is  based  were  sound,  the  conclusion  might  be  correct.  But 
the  fallacy  of  the  argument  lies  in  the  assumption  that  the  States 


874  CONSTITUTIONAL   RULES   OF   STATE    COMITY.         [CHAP.  X. 

of  the  Union  occupy  towards  each  other,  in  respect  to  fugitives  from 
justice,  the  rekitiou  of  foreign  nations,  in  the  same  sense  in  which 
the  general  government  stands  towards  independent  sovereignties 
on  tliat  subject;  and  in  the  further  assumption  that  a  fu"itive  from 
justice  acquires  in  the  State  to  which  he  may  flee  some  State  or 
personal  right  of  protection,  improperly  called  a  right  of  asylum, 
which  secures  to  him  exemption  from  trial  and  punishment  for 
a  crime  committed  in  another  State,  unless  such  crime  is  made  the 
special  object  or  ground  of  his  rendition.  This  latter  position  is 
only  a  restatement,  in  another  form,  of  the  question  presented  for 
our  determination.  The  sole  object  of  the  provision  of  the  Constitu- 
tion and  the  act  of  Congress  to  carry  it  into  effect  is  to  secure  the 
surrender  of  persons  accused  of  crime,  who  have  fled  from  the  justice 
of  a  State,  whose  laws  they  are  charged  with  violating.  Neither  the 
Constitution,  nor  the  act  of  Congress  providing  for  the  rendition 
of  fugitives  upon  proper  requisition  being  made,  confers,  either 
expressly  or  by  implication,  any  right  or  privilege  upon  such  fugi- 
tives under  and  by  virtue  of  which  they  can  assert,  in  the  State 
to  which  they  are  returned,  exemption  from  trial  for  any  criminal 
act  done  therein.  No  purpose  or  intention  is  manifested  to  afford 
them  any  immunity  or  protection  from  trial  and  punishment  for  any 
offences  committed  in  the  State  from  which  they  flee.  On  the  con- 
trary, the  provision  of  both  the  Constitution  and  the  statutes  extends 
to  all  crimes  and  offences  punishable  by  the  laws  of  the  State  where 
the  act  is  done.  Kentucky  v.  Dennison,  24  How.  Q)Q,  101,  102;  Ex 
parte  Reggel,  114  U.  S.  642. 

The  case  of  United  States  v.  Rauscher,  119  U.  S.  407,  has  no  appli- 
cation to  the  question  under  consideration,  because  it  proceeded  upon 
the  ground  of  a  right  given  impliedly  by  the  terms  of  a  treaty 
between  the  United  States  and  Great  Britain,  as  well  as  expressly 
by  the  acts  of  Congress  in  the  case  of  a  fugitive  surrendered  to  the 
United  States  by  a  foreign  nation.  That  treaty,  which  specified  the 
offences  that  were  extraditable,  and  the  statutes  of  the  United  States 
passed  to  carry  it  and  other  like  treaties  into  effect,  constituted  the 
supreme  law  of  the  land,  and  were  construed  to  exempt  the  extra- 
dited fugitive  from  trial  for  any  other  offence  than  that  mentioned 
in  the  demand  for  his  surrender.  There  is  nothing  in  the  Constitu- 
tion or  statutes  of  the  United  States  in  reference  to  interstate  rendi- 
tion of  fugitives  from  justice  which  can  be  regarded  as  establishing 
any  compact  between  the  States  of  the  Union,  such  as  the  Ashbnrton 
treaty  contains,  limiting  their  operation  to  particular  or  designated 
offences.  On  the  contrary,  the  provisions  of  the  organic  and  statu- 
tory law  embrace  crimes  and  offences  of  every  character  and  descrip- 
tion punishable  by  the  laws  of  the  State  where  the  forbidden  acts 
are  committed.  It  is  questionable  whether  the  States  could  consti- 
tutionally enter  into  any  agreement  or  stipulation  with  each  other 
for  the  purpose  of  defining  or  limiting  the  offences  for  which  fugi- 


SECT.  III.]  LASCELLES   V.    GEORGIA.  875 

tives  would  or  should  be  surrendered.  But  it  is  settled  by  the  deci- 
sions of  this  court  that,  except  in  the  case  of  a  fugitive  surrendered 
by  a  foreign  government,  there  is  nothing  in  the  Constitution, 
treaties,  or  laws  of  the  United  States  which  exempts  an  offender, 
brought  before  the  courts  of  a  State  for  an  offence  against  its  laws, 
from  trial  and  punishment,  even  though  brought  from  another  State 
by  unlawful  violence,  or  by  abuse  of  legal  process.  Ker  v.  Illinois, 
119  U.  S.  436,  444  ;  Mahon  v.  Justice,  127  U.  S.  700,  707,  708,  712; 
Cook  V.  Hart,  146  U.  S.  183,  190,  192. 

In  the  case  of  Mahon  v.  Justice,  127  U.  S.  700,  a  fugitive  from 
the  justice  of  Kentucky  was  kidnapped  in  West  Virginia  and 
forcibly  carried  back  to  Kentucky,  where  he  was  held  for  trial  on 
a  criminal  charge.  The  governor  of  West  Virginia  demanded  his 
restoration  to  the  jurisdiction  of  that  State,  which,  being  refused,  his 
release  was  sought  by  habeas  corjnis,  and  it  was  there  contended 
that,  under  the  Constitution  and  laws  of  the  United  States,  the  fugi- 
tive had  a  right  of  asylum  in  the  State  to  which  he  fled,  which  the 
courts  of  the  United  States  should  recognize  and  enforce,  except 
when  removed  in  accordance  with  regular  proceedings  authorized 
by  law.  Instead  of  acceding  to  this  proposition,  this  court  said : 
"  But  the  plain  answer  to  this  contention  is  that  the  laws  of  the 
United  States  do  not  recognize  any  such  right  of  asylum  as  is  here 
claimed,  on  the  part  of  the  fugitive  from  justice  in  any  State  to 
which  he  has  fled;  nor  have  they,  as  already  stated,  made  any  pro- 
vision for  the  return  of  parties,  who,  by  violence  and  without  lawful 
authority,  have  been  abducted  from  a  State."  And  the  court  further 
said  :  "  As  to  the  removal  from  the  State  of  the  fugitive  from  justice 
in  a  way  other  than  that  which  is  provided  by  the  second  section 
of  the  fourth  article  of  the  Constitution,  which  declares  that  'a 
person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on 
demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime,'  and  the  laws  passed  by  Congress  to  carry  the  same  into  effect 
—  it  is  not  perceived  how  that  fact  can  affect  his  detention  upon 
a  warrant  for  the  commission  of  a  crime  within  the  State  to  which 
he  is  carried.  The  jurisdiction  of  the  court  in  which  the  indictment 
is  found  is  not  impaired  by  the  manner  in  which  the  accused  is 
brought  before  it.  There  are  many  adjudications  to  this  purport 
cited  by  counsel  on  the  argument,  to  some  of  which  we  wnll  refer." 
(pp.  707,  708.)  After  reviewing  a  number  of  cases  on  this  question, 
the  court  proceeded  :  "  Other  cases  might  be  cited  from  the  same 
courts  holding  similar  views.  There  is,  indeed,  an  entire  concur- 
rence of  opinion  as  to  the  ground  upon  which  a  release  of  the 
appellant  in  the  present  case  is  asked,  namely,  that  his  forcible 
abduction  from  another  State,  and  conveyance  within  the  jurisdiction 
of  the  court  holding  him,  is  no  objection  to  the  detention  and  trial 


876  CONSTITUTIONAL   RULES   OF   STATE   COMITY.         [CHAP.  X. 

for  the  offence  charged.  They  all  proceed  upon  the  obvious  ground 
that  the  offender  against  the  law  of  the  State  is  not  relieved  from 
liability  because  of  personal  injuries  received  from  private  parties, 
or  because  of  indignities  committed  against  another  State.  It  would 
indeed  be  a  strange  conclusion,  if  a  party  charged  with  a  criminal 
offence  could  be  excused  from  answering  to  the  government  whose 
laws  he  had  violated,  because  other  parties  had  done  violence  to  him, 
and  also  committed  an  offence  against  the  laws  of  another  State." 
(p.  712.)  The  same  principle  was  applied  in  the  case  of  Ker  v. 
Illinois,  119  U.  S.  436. 

If  a  fugitive  may  be  kidnapped  or  unlawfully  abducted  from  the 
State  or  country  of  'refuge,  and  be,  thereafter,  tried  in  the  State  to 
which  he  is  forcibly  carried,  without  violating  any  right  or  immunity 
secured  to  him  by  the  Constitution  and  laws  of  the  United  States, 
it  is  difficult  to  understand  upon  what  sound  principle  can  be  rested 
the  denial  of  a  State's  authority  or  jurisdiction  to  try  him  for  another 
or  different  offence  than  that  for  which  he  was  surrendered.  If 
the  fugitive  be  regarded  as  not  lawfully  within  the  limits  of  the 
State  in  respect  to  any  other  crime  than  the  one  on  which  his  sur- 
render was  effected,  still  that  fact  does  not  defeat  the  jurisdiction 
of  its  courts  to  try  him  for  other  offences,  any  more  than  if  he  had 
been  brought  within  such  jurisdiction  forcibly  and  without  any  legal 
process  whatever. 

We  are  not  called  upon  in  the  present  case  to  consider  what,  if 
any,  authority  the  surrendering  State  has  over  the  subject  of  the 
fugitive's  rendition,  beyond  ascertaining  that  he  is  charged  with 
crime  in  the  State  from  which  he  has  fled,  nor  whether  the  States 
have  any  jurisdiction  to  legislate  upon  the  subject,  and  we  express 
no  opinion  on  these  questions.  To  apply  the  rule  of  international 
or  foreign  extradition,  as  announced  in  United  States  v.  Rauscher, 
119  U.  S.  407,  to  interstate  rendition  involves  the  confusion  of  two 
essentially  different  things,  which  rest  upon  entirely  different  princi- 
ples. In  the  former  the  extradition  depends  upon  treaty  contract  or 
stipulation,  which  rests  upon  good  faith,  and  in  respect  to  which  the 
sovereign  upon  whom  the  demand  is  made  can  exercise  discretion, 
as  well  as  investigate  the  charge  on  which  the  surrender  is  demanded, 
there  being  no  rule  of  comity  under  and  by  virtue  of  which  inde- 
pendent nations  are  required  or  expected  to  withhold  from  fugitives 
within  their  jurisdiction  the  right  of  asylum.  In  the  matter  of  inter- 
state rendition,  however,  there  is  the  binding  force  and  obligation, 
not  of  contract,  but  of  the  supreme  law  of  the  land,  which  imposes 
no  conditions  or  limitations  upon  the  jurisdiction  and  authority  of 
the  State  to  which  the  fugitive  is  returned. 

There  are  decisions  in  the  State  courts  and  in  some  of  the  lower 
Federal  courts  which  have  applied  the  rule  laid  down  in  United 
States  V.  Rauscher,  supra,  to  interstate  rendition  of  fugitives  under 
the  Constitution  and  laws  of  the  United  States,  but  in  our  opinion 


SECT.  III.]  LASCELLES    V.    GEORGIA.  877 

they  do  not  rest  upon  sound  principle,  and  are  not  supported  by  the 
wei'dit  of  judicial  authority. 

The  cases  holding  the  other  and  sounder  view,  that  a  fugitive 
from  justice  surrendered  by  one  State  upon  the  demand  of  another 
is  not  protected  from  prosecution  for  offences  other  than  that  for 
which  he  was  rendered  up,  but  may,  after  being  restored  to  the 
demanding  State,  be  lawfully  tried  and  punished  for  any  and  all 
crimes  committed  within  its  territorial  jurisdiction,  either  before  or 
utter  extradition,  are  the  following  :  In  re  Noyes,  17  Albany  L.  J. 
407;  Ham  v.  The  State  [Texas],  4  Tex.  App.  645;  State  ex  rel. 
Brown  v.  Stewart,  60  Wis.  587 ;  Post  v.  Cross,  135  N.  Y.  536 ; 
Commonwealth  v.  Wright  [Sup.  Court  of  Mass.],  33  N.  E.  Rep.  82; 
and  In  re  Miles,  52  Vt.  609. 

These  authorities  are  followed  by  the  Supreme  Court  of  Georgia 
in  the  clear  opinion  pronounced  by  Lumpkin,  Justice,  in  the  present 
case. 

The  highest  courts  of  the  two  States  immediately  or  more  directly 
interested  in  the  case  under  consideration  hold  the  same  rule  on  this 
subject.  The  plaintiff  in  error  does  not  bear  in  his  person  the 
alleged  sovereignty  of  the  State  of  New  York,  from  which  he  was 
remanded  (Dow's  Case,  18  Penn.  St.  37) ;  but  if  he  did,  that  State 
properly  recognizes  the  jurisdiction  of  the  State  of  Georgia  to  try 
and  punish  him  for  any  and  all  crimes  committed  within  its  terri- 
tory. But  aside  from  this,  it  would  be  a  useless  and  idle  procedure 
to  require  the  State  having  custody  of  the  alleged  criminal  to  return 
him  to  the  State  by  which  he  was  rendered  up  in  order  to  go  through 
the  formality  of  again  demanding  his  extradition  for  the  new  or 
additional  offences  on  which  it  desired  to  prosecute  him.  The  Con- 
stitution and  laws  of  the  United  States  impose  no  such  condition  or 
requirement  upon  the  State.  Our  conclusion  is  that,  upon  a  fugi- 
tive's surrender  to  the  State  demanding  his  return  in  pursuance  of 
national  law,  he  may  be  tried  in  the  State  to  which  he  is  returned 
for  any  other  offence  than  that  specified  in  the  requisition  for  his 
rendition,  and  that  in  so  trying  him  against  his  objection  no  right, 
privilege,  or  immunity  secured  to  him  by  the  Constitution  and  laws 
of  the  United  States  is  thereby  denied. 

It   follows,    therefore,   that  the  judgment    in    the   present  case 

should  be 

Affirmed, 


THE   AMENDMENTS   TO   THE   CONSTITUTION.        [CHAP.  XII. 


CHAPTER  XI. 

THE  GUARANTY   OF  REPUBLICAN    GOVERNMENT 
TO   THE   STATES. 


LUTHER  V.   BORDEN. 
7  Howard,  1 ;  17  Curtis,  1.     1848. 
[See  supra,  p.  595.] 


TEXAS    V.    WHITE. 

7  Wallace,  700.     1868. 
[See  supra,  p.  838.] 


CHAPTER   Xn. 
THE  AMENDMENTS   TO  THE   CONSTITUTION. 


[See  in  general  the  cases  under  Chapter  I.] 


SECT.  I.]  PPEIFFER   V.   BOARD   OF   EDUCATION   OF   DETROIT.  879 


CHAPTER   XIII. 
CIVIL  RIGHTS   AXD  THEIR  GUARANTIES. 


Section  I.  —  Religious  Liberty. 


PFEIFFER  V.   BOARD   OF   EDUCATION  OF   THE   CITY   OF 

DETROIT. 

—  Michigan, ;  77  Northwestern  Reporter,  250.     1898. 

Montgomery,  J.  The  relator  applied  to  the  Circuit  Court  of 
Wayne  County  to  compel  the  respondent  to  discontinue  the  use  of  a 
certain  book,  known  as  "Readings  from  the  Bible,"  in  the  public 
schools  of  Detroit. 

[The  application  for  a  writ  of  mandamus  having  been  granted  by 
the  lower  court,  the  respondent  brings  the  case  to  this  court  by 
certiorari.  The  answer  of  respondent  in  the  lower  court  shows  that 
the  teachers  in  the  schools  in  question  were  not  required  to  give 
instruction  from  the  Bible,  except  such  as  was  absolutely  necessary 
for  use  of  the  same  as  a  supplemental  text-book  of  reading,  and 
were  not  allowed  to  make  note  or  comment  upon  anything  contained 
in  said  book.  It  was  also  averred  that  the  board  did  not  require 
the  pupils  of  such  schools  to  listen  to  the  readings  from  the  Bible, 
but  that  such  readings  took  place  at  the  close  of  the  sessions  of  said 
schools,  and  that  pupils  were,  by  the  order  of  the  board,  excused 
therefrom  upon  the  application  of  their  parents  or  guardians.] 

The  contention  of  relator  is  that  the  action  of  the  board  is  for- 
bidden by  the  constitution  of  the  State.  The  provisions  touching 
this  question  are  as  follows  (article  4)  :  — 

"Sect.  39.  The  legislature  shall  pass  no  law  to  prevent  any 
person  from  worshipping  Almighty  God  according  to  the  dictates  of 
his  own  conscience,  or  compel  kny  person  to  attend,  erect,  or  support 
any  place  of  religious  worship,  or  to  pay  tithes,  taxes,  or  other  rates 
for  the  support  of  any  minister  of  the  gospel  or  teacher  of  religion. 

"Sect.  40.  No  money  shall  be  appropriated  or  drawn  from  the 
treasury  for  the  benefit  of  any  religious  sect  or  society,  theological 


880  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

or  religious  seminary,  nor  shall  property  belonging  to  the  State  be 
appropriated  for  any  such  purposes. 

"Sect.  41.  The  legislature  shall  not  diminish  or  enlarge  the  civil 
or  political  rights,  privileges,  and  capacities  of  any  person  on  account 
of  his  opinion  or  belief  concerning  matters  of  religion." 

The  precise  question  is  not  whether  the  pupil  can  be  compelled 
to  attend  religious  exercises,  nor,  necessarily,  whether  the  reading 
of  the  Bible,  or  an  extract  from  it,  constitutes  religious  worship, 
but  whether  such  reading  of  extracts  from  the  Bible,  at  which  read- 
ing pupils  whose  faith  or  scruples  are  shocked  by  hearing  the  pas- 
sages read  are  net  required  to  attend,  constitutes  the  teacher  a 
teacher  of  religion,  or  amounts  to  a  restriction  of  civil  or  political 
rights  or  privileges  of  such  students  as  do  not  attend  upon  the 
exercises.  Is  the  reading  of  extracts  taken  from  the  Bible  a  viola- 
tion of  the  provision  of  the  constitution  which  inhibits  the  diminish- 
ing or  enlargement  of  the  civil  or  political  rights,  privileges,  and 
capacities  of  the  individual  on  account  of  his  opinion  or  belief  con- 
cerning matters  of  religion?  We  do  not  think  it  can  be  maintained 
that  this  section  has  any  application  to  this  subject.  The  primary 
purpose  of  this  provision  was  to  exclude  religious  tests,  and  to 
place  all  citizens  on  an  equality  before  the  law  as  to  the  exercise  of 
the  franchise  of  voting  or  holding  office.  The  language  is  inapt  to 
be  applied  as  restricting  the  use  of  school  rooms  or  school  funds. 
It  might  be  said  that  many  of  the  students  in  our  schools  are  not  in 
position  to  avail  themselves  of  the  opportunity  to  study  the  dead 
languages.  Is  it,  therefore,  an  unjust  discrimination  to  provide  for 
instruction  in  Latin  and  Greek  for  such  pupils  as  are  able  to  devote 
their  time  to  those  studies?  Does  it  harm  one  who  does  not,  for 
conscientious  reasons,  care  to  listen  to  readings  from  the  Bible,  that 
others  are  given  the  opportunity  to  do  so?  Is  it  not  intolerant  for 
one  not  required  to  attend  to  object  to  such  readings?  It  may  be 
said,  of  course,  that  the  services  of  the  teacher  while  engaged  in 
these  exercises  are  paid  out  of  the  fund  in  which  all  are  entitled  to 
share;  but  the  same  is  true  of  the  time  which  the  teacher  devotes  to 
the  languages,  or  instruction  in  higher  mathematics.  Does  it  follow 
that  the  civil  rights  or  privileges  of  the  students  who  do  not  accept 
teaching  in  those  branches,  or  those  who  do,  have  been,  on  the  one 
hand,  diminished,  or,  on  the  other,  enlarged?  I  do  not  think  it 
should  be  so  held.  Nor  has  section  40  any  more  appropriate  appli- 
cation. This  section  has  a  very  plain  meaning,  which  is  that  the 
public  money  may  not  be  turned  over  to  a  religious  sect  to  maintain 
churches  or  seminaries;  and  unless  the  readings  from  the  Bible,  or 
selections  from  the  Bible,  constitute  the  public  school  a  religious  or 
theological  seminary,  this  section  has  not,  in  my  judgment,  any 
application.  As  is  stated  in  the  opinion  of  the  learned  circuit 
judge,  the  most  significant  provision  is  section  39;  and  the  meri- 
torious question   is   whether  any  student  or  any  taxpayer  has  been 


SECT.  I-]  PFEIFFER   V.    BOARD    OP   EDUCATION    OF   DETROIT.  881 

compelled  to  attend,  erect,  or  support  a  place  of  religious  worship,  or 
to  pay  tithes,  taxes,  or  other  rates  for  the  support  of  any  minister  of 
the  gospel  or  teacher  of  religion.  In  determining  this  question,  we 
should  endeavor  to  place  ourselves  in  the  position  of  the  framers  of 
the  constitution,  and  ascertain  what  was  meant  at  the  time :  for,  if 
we  are  successful  in  doing  this,  we  have  solved  the  question  of  its 
meaning  for  all  time.  It  could  not  mean  one  thing  at  the  time  of 
its  adoption,  and  another  thing  to-day,  when  public  sentiments 
have  undergone  a  change.  McPherson  v.  Secretary  of  State,  92 
Mich.  377.  It  is  therefore  essential  that  we  determine  the  intent 
of  this  provision  by  reference  to  the  state  of  the  law  or  cus- 
tom previously  existing,  and  by  the  contemporaneous  construction, 
rather  than  attempt  to  test  its  meaning  by  the  so-called  advanced  or 
liberal  views  obtaining  among  a  large  class  of  the  community  at  the 
present  day. 

A  similar  provision  was  introduced  into  the  convention  of  1835. 
The  provision  was  as  follows:  "Every  person  has  a  right  to  worship 
Almighty  God  according  to  the  dictates  of  his  own  conscience,  and 
no  person  can  of  right  be  compelled  to  attend,  erect,  or  support 
against  his  will  any  place  of  religious  worship,  or  pay  tithes,  taxes, 
or  other  rates  for  the  support  of  any  minister  of  the  gospel  or 
teacher  of  religion."  As  is  pointed  out  in  the  brief  of  the  learned 
counsel  for  the  respondent  (to  whom  we  are  much  indebted  for  a 
most  laborious  and  careful  research  into  the  historical  origin  of  this 
provision),  the  provision  was  doubtless  taken  from  the  Virginia 
constitution  of  1830.  It  is  clearly  shown  by  that  research  that  the 
inhabitants  of  that  Commonwealth  were  by  statute  compelled  to 
attend  upon  divine  service;  ministers  were,  in  public  statutes, 
referred  to  as  "teachers  of  religion."  In  1784  a  statute  making 
provision  for  the  support  of  ministers  of  the  established  church  was 
introduced,  under  the  title  of  "A  Bill  to  establish  a  provision  for 
teachers  of  the  Christian  religion."  This  statute  was  repealed  by  a 
general  statute  adopted  in  1786,  entitled  "An  Act  for  establishing 
religious  freedom,"  the  preamble  of  which  clearly  shows  that  the 
term  "teacher  of  religion"  was  used  as  synonymous  with  "minis- 
ter." The  constitution  of  1830  was  but  an  embodiment  of  this 
enactment  in  the  organic  law  of  the  State.  Can  it  be  said  that  the 
adoption  of  this  provision  into  our  constitution  of  1835  was  intended 
to  have  a  wider  scope?  I  think  not.  It  is  significant  that  tliis  con. 
stitution  was  adopted  in  pursuance  to  authority  conferred  by  article 
5  of  the  articles  of  compact  contained  in  the  ordinance  of  1787 
(Scott  V.  Society,  1  Doug.  122),  which  gave  to  the  people  of  the 
Territory  a  right  to  form  a  constitution  in  conformity  with  the  prin- 
ciples contained  in  the  articles.  The  ordinance  of  1787  declared 
that  religion,  morality,  and  knowledge  were  necessary  to  good 
government  and  the  happiness  of  mankind,  and  provided  that,  for 
these  purposes,  schools  and  the  means  of  education  shall  ever  be 

66 


882  CIVIL   RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 

encouraged.  It  is  not  to  be  inferred  that,  iu  forming  a  constitution 
under  tlie  authority  of  this  ordinance,  the  convention  intended  to 
proliibit  in  the  public  schools  all  mention  of  a  subject  which  the 
ordinance,  in  etfect,  declared  that  schools  were  to  be  established  to 
foster,  —  particularly  as  the  provision,  when  traced  to  its  historic 
origin,  is  shown  to  have  been  aimed  at  quite  another  evil.  In  my 
opinion,  this  provision,  when  incorporated  into  our  organic  law, 
meant  simply  that  the  inhabitants  ot  the  State  should  not  be 
required  to  attend  upon  those  church  services  which  the  people  of 
Virginia  had  been  by  this  same  enactment  relieved  from,  and  that 
no  one  should  be  compelled  to  pay  tithes  or  other  rates  for  the  sup- 
port of  ministers.  If  this  meaning  attached  at  that  time,  it  has  not 
been  changed  since. 

In  my  opinion,  the  reading  of  the  extracts  from  the  Bible  in  the 
manner  indicated  by  the  return,  without  comment,  is  not  in  viola- 
tion of  any  constitutional  provision.  I  am  not  able  to  see  why 
extracts  from  the  Bible  should  be  proscribed,  when  the  youth  are 
taught  no  better  authenticated  truths  of  profane  history.  The  order 
of  the  Circuit  Court  should  be  reversed.^ 

1  Moore,  J.,  delivered  a  dissenting  opinion. 

In  State  ex  rel.  Weiss  v.  District  Board,  76  Wis.  177  (1890),  the  question 
was  whether  mandamus  would  lie  to  compel  the  teachers  in  a  public  school  to  dis- 
continue the  practice  of  reading  in  the  school  selections  from  the  Bible.  The  court 
considers  that  the  adoption  of  tlie  Protestant  or  King  James's  version  of  the  Bible 
in  the  public  schools  as  a  text-book  and  the  reading  of  selections  therefrom  is  sec- 
tarian instruction,  Avithin  the  meaning  of  sect.  3,  art.  10,  of  the  State  Con.stitution, 
prohibiting  sectarian  instruction  in  the  public  schools  of  the  State.  Lyon,  J.,  uses 
the  following  language  :  — 

"  For  the  reasons  above  stated,  ive  cannot  doubt  that  the  use  of  the  Bible  as  a 
text-book  in  the  public  schools,  and  the  stated  reading  thereof  in  such  schools,  with- 
out restriction,  '  has  a  tendency  to  inculcate  sectarian  ideas,'  and  is  sectarian  instruc- 
tion, within  the  meaning  and  intention  of  the  constitution  and  the  statute. 

"  7.  The  answer  of  the  respondent  states  that  the  relators'  children  are  not  com- 
pelled to  remain  in  the  school-room  while  the  Bible  is  being  read,  but  are  at  lilierty 
to  withdraw  therefrom  during  tlie  reading  of  the  same.  For  this  reason  it  is  claimed 
that  the  relators  have  no  good  cause  for  complaint,  even  though  such  reading  be 
sectarian  instruction.  We  cannot  give  our  sanction  to  tliis  position.  When,  as  in 
this  case,  a  small  minority  of  the  pupils  in  tlie  public  school  is  excluded,  for  any 
cause,  from  a  stated  school-exercise,  particularly  when  such  cause  is  apparent  hos- 
tility to  the  Bible  which  a  majority  of  the  pupils  have  been  taught  to  revere,  from 
that  moment  the  excluded  pupil  loses  caste  with  his  fellows,  and  is  liable  to  he 
regarded  with  aversion  and  snlijected  to  reproach  and  insult.  But  it  is  a  sufficient 
refutation  of  the  argument  that  tlie  practice  iu  question  tends  to  destroy  the  equality 
of  the  pupils  which  the  constitution  seeks  to  establish  and  ])rotect,  and  puts  a  portion 
of  them  to  serious  disadvantage  in  many  ways  with  respect  to  the  others." 

On  the  question  whether  the  nets  of  the  teachers  are  infringement  of  privileges 
guaranteed  in  the  Constitution  with  reference  to  the  right  of  every  man  to  worship 
Almiffhtv  God  according  to  the  dictates  of  his  own  conscience  and  that  no  control 
of  or  interference  with  the  rights  of  conscience  shall  be  permitted  or  any  preference 
given  by  law  to  anv  religious  establishments  or  modes  of  worship,  Cassodav,  J.,  de- 
livering the  opinion  of  the  court,  uses  this  language  :  — 


SECT.  I.]  REYNOLDS   V.    UNITED    STATES.  883 

"  In  cousideriug  tlie  two  clauses  quoted  hum  our  coustitution,  we  are  to  bear  in 
miud  the  general  proposition  conceded  by  all,  that  our  state  constitution  is  not  a 
grant,  but  a  limitation,  of  powers.  State  ex  rel.  Graef  v.  Forrest  Co.,  74  Wis.  613. 
Viewed  in  this  liglit,  and  it  will  readily  be  perceived  that  these  cJauses  operate  as 
a  perpetual  bar  to  the  State,  and  each  of  the  thr^e  departments  of  the  State  govern- 
ment, and  every  agency  thereof,  from  the  infringen;ent,  control,  or  interference  with 
the  individual  rights  of  every  person,  as  indicated  tlierein,  or  the  giving  of  any 
])reference  by  law  to  any  religious  sect  or  mode  of  worship.  They  presuppose  the 
voluntary  exercise  of  such  rights  by  any  person  or  body  of  persons  who  may  desire, 
and  bv  implication  guarantee  protection  in  the  freedom  of  such  exercise.  We  neither 
have  nor  can  have  in  this  State  under  our  present  constitution  any  statutes  of  toler- 
ation, nor  of  union,  directly  or  indirectly,  between  church  and  state  —  for  the  simple 
reason  that  the  constitution  forbids  all  such  preferences  and  guarantees  all  such 
rights.  But  the  exercise  of  such  rights  by  one  person,  or  any  given  number  of 
persons,  cannot  be  so  extended  as  to  interfere  with  the  exercise  of  similar  rights  by 
other  persons,  nor  so  far  as  to  prevent  the  legitimate  exercise  of  the  police  powers 
of  the  State  in  preserving  order,  securing  good  citizensliip,  the  administration  of 
law,  and  tlie  Sabbath  as  a  day  of  rest.  Stansbury  v.  Marks,  2  Dall.  213 ;  Com.  r. 
Wolf,  3  Serg.  &  R.  48;  Com.  r.  Lesher,  17  Serg.  &  R.  155;  McGatrick  v.  Wason, 
4  Ohio  St.  566  ;  Simon's  Ex'rs  v.  Gratz,  23  Am.  Dec.  33  ;  Shover  v.  State,  10  Ark.  259  ; 
Ferriter  v.  Tyler,  48  Vt.  469  ;  State  ex  rel.  Walker  v.  Judge,  39  La.  Ann.  132.  Such 
statutes  come'  within  no  constitutional  prohibition,  and  are  founded  upon  an  impreg- 
nable basis. 

"  We  must  hold  that  the  stated  reading  of  the  Bible  in  the  public  schools  as  a 
text-book  may  be  '  worship '  within  the  meaning  of  the  clause  of  the  constitution 
under  consideration.  If,  tiien,  such  reading  of  the  Bible  is  worship,  can  there  be 
any  doubt  but  what  the  school-room  in  which  it  is  so  statedly  read  is  a  '  place  of 
worship,'  within  the  meaning  of  the  same  clause  of  the  constitution  1 

"  The  thing  that  is  prohibited  is  the  drawing  of  any  money  from  the  State  treas- 
ury for  the  benefit  of  any  religious  school.  If  the  stated  reading  of  the  Bible  in 
the  school  as  a  text-book  is  not  only,  in  a  limited  sense,  worship,  but  also  instruction, 
as  it  manifestly  is,  then  there  is  no  escape  from  the  conclusion  that  it  is  religious 
instruction  ;  and  hence  the  money  so  drawn  from  the  State  treasury  was  for  the 
benefit  of  a  religious  school,  withiu  the  meaning  of  this  clause  of  the  Constitution." 

In  Reynolds  v.  United  States,  98  U.  S.  145  (1878),  which  was  a  prosecution 
in  a  territorial  court  of  Utah  for  polygamy  in  violation  of  a  Federal  statute,  defend- 
ant interposed  the  objection  that  the  polygamous  marriage  was  contracted- in  pursu- 
ance of  a  supposed  religious  duty.  With  reference  to  this  question  Mr.  Chief 
Justice  Waite.  delivering  the  o])inion  of  the  court,  us^ed  this  language:  — 

"  Congress  cannot  pass  a  law  for  the  government  of  the  Territories  which  ;:hall 
prohibit  the  free  exercise  of  religion.  The  fir.^t  amendment  to  the  Constitution 
expressly  forbids  such  legislation.  Religious  freedom  is  guaranteed  everywhere 
througliout  the  United  States,  so  far  as  .congressional  interference  is  concerned. 
The  question  to  be  determined  is,  whether  the  law  now  under  consideration  comes 
within  this  prohibition. 

"  The  word  '  religion  '  is  not  defined  in  the  Constitution.  We  must  go  elsewhere, 
therefore,  to  ascertain  its  meaning,  and  nowhere  more  appropriately,  we  think,  than 
to  the  history  of  the  times  in  the  midst  of  which  the  provision  was  adopted.  The 
precise  point  of  the  inquiry  is,  what  is  the  religious  freedom  which  has  been 
guaranteed. 

"  Before  the  adoption  of  the  Constitution,  attempts  were  made  in  some  of  the 
colonies  and  States  to  legislate  not  only  in  respect  to  the  establishment  of  religi<m, 
but  in  res])ect  to  its  doctrines  and  ])recepts  as  well.  The  people  were  taxed,  against 
their  will,  for  the  support  of  religion,  and  sometimes  for  the  support  of  particular 
sects  to  whose  tenets  they  could  not  and  did  not  subscribe,  rnnishments  were  pre- 
scribed for  a  failure  to  attend  upon  public  worship,  and  sometimes  for  entertaining 


884  CIVIL   RIGHTS    AND    THEIR   GUARANTIES.         [CHAP.  XIII. 

heretical  opinions.  The  controversy  upon  tiiis  general  subject  -was  auimateil  in 
niauv  of  the  States,  but  seemed  at  last  to  culminate  in  \'irginia.  In  1784,  the  House 
of  Delegates  of  that  State  having  under  consideration  'a  bill  estaidishing  provision 
for  teacliers  of  the  Christian  religion,'  postponed  it  until  tlie  uext  session,  and 
directed  that  the  bill  should  be  published  and  distributed,  and  that  tlie  people  be 
requested  '  to  signifv  their  ojjinion  res])ecting  tlie  adoption  of  such  a  bill  at  the 
next  session  of  assembly.' 

"This  brouglit  out  a  determined  opposition.  Amongst  others,  Mr.  Madison 
prepared  a  '  Memorial  antl  Heinonstrance,'  which  was  widely  circulated  and  signed, 
aud  in  which  he  demonstrated  "that  religion,  or  the  duty  we  owe  tlie  Creator,'  was 
uot  within  the  cognizance  of  civil  government.  Semple's  Virginia  Baptists,  Apjien- 
dix.  At  the  next  session  tlie  proposed  bill  was  not  only  defeated,  but  another,  'for 
establishing  religious  freedom,'  drafted  by  Mr.  Jefferson,  was  passed.  1  .leff.  Works, 
45;  2  Howisou,  Hist,  of  Va.  298.  In  the  preamble  of  this  act  (12  Hening's  Stat.  84) 
reli"-ious  freedom  is  defined ;  and  after  a  recital  '  that  to  suffer  the  civil  nmgistrate 
to  intrude  his  powers  into  the  field  of  opinion,  aud  to  restrain  tlie  profession  or  pro])a- 
gatiou  of  principles  on  sujiposition  of  tlieir  ill  tendency,  is  a  dangerous  fallacy  wliich 
at  once  destrovs  all  religious  liberty,"  it  is  declared  'that  it  is  time  enough  for  the 
rightful  purposes  of  civil  government  for  its  officers  to  interfere  when  princijiles 
break  out  into  overt  acts  against  peace  and  good  order.'  In  these  two  sentences  is 
found  tlie  true  distinction  between  what  properly  belongs  to  the  church  aud  what 
to  the  state. 

"  In  a  little  more  than  a  year  after  the  passage  of  this  statute  the  convention  met 
wliicli  prepared  the  Constitution  of  the  United  States.  Of  this  convention  Mr. 
Jeffersou  was  not  a  member,  he  being  then  absent  as  minister  to  Trance.  As  soon 
as  he  saw  the  draft  of  the  Constitution  proposed  for  adoption,  he,  in  a  letter  to  a 
friend,  expressed  his  disajipointment  at  the  absence  of  an  exjjress  declaration  in- 
suring the  freedom  of  religion  (2  Jeff.  Works,  355),  but  was  willing  to  accept  it  as 
it  was,  trusting  that  the  good  sense  and  honest  intentions  of  the  people  would  bring 
about  the  necessary  alterations.  1  Jeff.  Works,  79.  Five  of  the  States,  wliile  adopt- 
ing tlie  Constitution,  proposed  amendments.  Three  — New  Hampshire,  New  York, 
aud  Virginia  —  included  in  one  form  or  another  a  declaration  of  religious  freedom 
in  the  changes  thev  desired  to  have  made,  as  did  also  North  Carolina,  where  the 
conveution  at  first  declined  to  ratify  the  Constitution  until  the  proposed  amendments 
were  acted  upon.  Accordingly,  at  the  first  session  of  the  first  Congress  the  amend- 
ment now  under  consideration  was  proposed  with  others  by  Mr.  Madison.  It  met 
the  views  of  the  advocates  of  religious  freedom,  and  was  adopted.  Mr.  Jeffersou 
afterwards,  in  replv  to  an  address  to  him  by  a  committee  of  the  Danbury  Baptist 
Association  (8  id.  "ll3).  took  occasion  to  say:  'Believing  with  you  that  religion  is 
a  matter  which  lies  solelv  between  man  and  his  God  :  that  he  owes  account  to  none 
other  for  his  faith  or  his  worship ;  that  the  legislative  powers  of  the  government 
reach  actions  onlv,  and  not  opinions.  —  I  contemplate  with  sovereign  reverence  that 
act  of  the  whole  American  people  which  declared  that  their  legislature  should  "  make 
no  law  respectins  an  establishment  of  reli-ion  or  prohibiting  the  free  exercise 
thereof."  thus  building  a  wall  of  separation  between  church  and  state.  Adhering  to 
this  expression  of  the^supreme  will  of  the  nation  in  behalf  of  the  rights  of  conscience, 
I  shall  see  with  sincere  satisfaction  the  progress  of  those  sentiments  which  tend  to 
restore  man  to  all  his  natural  rights,  convinced  he  has  no  natural  right  in  opposition 
to  his  social  duties.'  Coming  as  this  does  from  an  acknowledged  leader  of  the 
a<lvocates  of  the  measure,  it  mav  be  accepted  almost  as  an  autlioritative  declaration 
of  the  scope  and  effect  of  the  amendment  thus  secured.  Congress  was  deprived  of 
all  legislative  power  over  mere  opinion,  but  was  left  free^to  reach  actions  which 
•were  in  violation  of  social  duties  or  subversive  of  good  order." 

It  is  therefore  held  that  the  lower  court  did  not  err  in  charging  the  jury  that  if 
defendant,  under  the  influence  of  a  religious  belief  that  it  was  right,  deliberately 
married  a  second  time  having  a  first  wife  living,  the  want  of  consciousness  of  evil 
intent  did  not  excuse  him,  but  that  criminal  intent  would  be  implied. 


SECT.  II.]  BOYD    V.    UNITED    STATES.  885 


Section  II.  —  Security  of  the  Dwelling,  and  of 
Persons  and  Papers. 


BOYD  V.    UNITED   STATES. 

IIG  United  States,  616.     1886. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  information  filed  by  the  District  Attorney  of  the 
United  States  in  the  District  Court  for  the  Southern  District  of 
Xew  York,  in  July,  1884,  in  a  cause  of  seizure  and  forfeiture  of 
property,  against  thirty-five  cases  of  plate  glass,  seized  by  the  col- 
lector as  forfeited  to  the  United  States,  under  section  12  of  the 
"Act  to  amend  the  customs  revenue  laws,"  etc.,  passed  June  22, 
1874,  18  Stat.  186. 

It  is  declared  by  that  section  that  any  owner,  importer,  consignee, 
&c.,  who  shall,  with  intent  to  defraud  the  revenue,  make,  or 
attempt  to  make,  any  entry  of  imported  merchandise,  by  means  of 
any  fraudulent  or  false  invoice,  affidavit,  letter,  or  paper,  or  by 
means  of  any  false  statement,  written  or  verbal,  or  who  shall  be 
guilty  of  any  wilful  act  or  omission  by  means  whereof  the  United 
States  shall  be  deprived  of  the  lawful  duties,  or  any  portion  thereof, 
accruing  upon  the  merchandise,  or  any  portion  thereof,  embraced  or 
referred  to  in  such  invoice,  affidavit,  letter,  paper,  or  statement,  or 
affected  by  such  act  or  omission,  shall  for  each  offence  be  fined  in 
any  sura  not  exceeding  .^5,000  nor  less  than  .^50,  or  be  imprisoned 
for  any  time  not  exceeding  two  years,  or  both;  and,  in  addition  to 
such  fine,  such  merchandise  shall  be  forfeited. 

The  charge  was  that  the  goods  in  question  were  imported  into  the 
United  States  to  the  port  of  New  York,  subject  to  the  payment  of 
duties;  and  that  the  owners  or  agents  of  said  merchandise,  or  other 
person  unknown,  committed  the  alleged  fraud  which  was  described 
in  the  words  of  the  statute.  The  plaintiffs  in  error  entered  a  claim 
for  the  goods,  and  pleaded  that  they  did  not  become  forfeited  in 
manner  and  form  as  alleged.  On  the  trial  of  the  cause  it  became 
important  to  show  the  quantity  and  value  of  the  glass  contained  in 
twenty-nine  cases  previously  imported.  To  do  this  the  district  attor- 
ney offered  in  evidence  an  order  made  by  the  district  judge  under 
section  5  of  the  same  act  of  June  22,  1874,  directing  notice  under 
seal  of  the  court  to  be  given  to  the  claimants,  requiring  them  to 
produce  the  invoice  of  the  twenty-nine  cases.  The  claimants,  in 
obedience  to  the  notice,  but  objecting  to  its  validity  and  to  the 
constitutionality  of  the  law,  produced  the  invoice;  and  when  it  was 


886  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

offered  in  evidence  by  the  district  attorney  they  objected  to  its 
reception  on  the  ground  that,  in  a  suit  for  forfeiture,  no  evidence 
can  be  compelled  from  the  claimants  themselves,  and  also  that  the 
statute,  so  far  as  it  compels  production  of  evidence  to  be  used  against 
the  claimants,  is  unconstitutional  and  void. 

The  evidence  being  received,  and  the  trial  closed,  the  jury  found 
a  verdict  for  the  United  States,  condemning  the  thirty-five  cases  of 
glass  which  were  seized,  and  judgment  of  forfeiture  was  given. 
This  judgment  was  affirmed  by  the  Circuit  Court,  and  the  decision 
of  that  court  is  now  here  for  review. 

[The  section  referred  to  provides  that  "  in  all  suits  and  proceed- 
ings other  than  criminal  arising  under  any  of  the  revenue  laws  of 
the  United  States,  the  attorney  representing  the  government,  when- 
ever iu  his  belief  any  business  book,  invoice,  or  paper  belonging  to 
or  under  the  control  of  the  defendant  or  claimant  will  tend  to  prove 
any  allegation  made  by  the  United  States,  may  make  a  written 
motion  particularly  describing  such  book,  invoice,  or  paper,  and 
setting  forth  the  allegation  which  he  expects  to  prove;  and  there- 
upon the  court  in  which  suit  or  proceeding  is  pending  may  at  its 
discretion  issue  a  notice  to  the  defendant  or  claimant  to  produce 
such  book,  invoice,  or  paper  in  court  at  a  day  and  hour  to  be  speci- 
fied in  said  notice,  which,  together  with  a  copy  of  said  motion, 
shall  be  served  formally  on  the  defendant  or  claimant  by  the  United 
States  marshal;  .  .  .  and  if  the  defendant  or  claimant  shall  fail 
or  refuse  to  produce  such  book,  invoice,  or  paper  in  obedience  to 
such  notice  the  allegations  stated  in  the  said  motion  shall  be  taken 
as  confessed,  unless  his  failure  or  refusal  to  produce  the  same  shall 
be  explained  to  the  satisfaction  of  the  court.  And  if  produced  the 
said  attorney  shall  be  permitted,  under  the  direction  of  the  court, 
to  make  examination  ...  of  such  entries  in  said  book,  invoice,  or 
paper  as  relate  to  or  tend  to  prove  the  allegation  aforesaid,  and  may 
offer  the  same  in  evidence  in  behalf  of  the  United  States.   .   .   ."] 

The  clauses  of  the  Constitution,  to  which  it  is  contended  that 
these  laws  are  repugnant,  are  the  Fourth  and  Fifth  Amendments. 
The  Fourth  declares,  "The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized."  The  fifth  article,  amongst  other  things,  declares 
that  no  person  "shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself." 

But,  in  regard  to  the  Fourth  Amendment,  it  is  contended  that, 
whatever  might  have  been  alleged  against  the  constitutionality  of 
the  acts  of  1863  and  1867,  that  of  1871,  under  which  the  order  in  the 
present  case  Avas  made,  is  free  from  constitutional  objection,  because 
it  does  not  authorize  the  search  and  seizure  of  books  and  papers. 


SECT.  II.]  BOYD    V.    UNITED    STATES.  887 

but  only  requires  the  defendant  or  claimant  to  produce  them.  That 
is  so;  but  it  declares  that  if  he  does  not  produce  them,  the  allega- 
tions which  it  is  affirmed  they  will  prove  shall  be  taken  as  con- 
fessed. This  is  tantamount  to  compelling  their  production;  for  the 
prosecuting  attorney  will  always  be  sure  to  state  the  evidence 
expected  to  be  derived  from  them  as  strongly  as  the  case  will  admit 
of.  It  is  true  that  certain  aggravating  incidents  of  actual  search 
and  seizure,  such  as  forcible  entry  into  a  man's  house  and  searching 
amongst  his  papers,  are  wanting,  and  to  this  extent  the  proceeding 
under  the  act  of  187-4  is  a  mitigation  of  that  which  was  authorized 
by  the  former  acts;  but  it  accomplishes  the  substantial  object  of 
tJiose  acts  in  forcing  from  a  party  evidence  against  himself.  It  is 
our  opinion,  therefore,  that  a  compulsory  production  of  a  man's 
private  papers  to  establish  a  criminal  charge  against  him,  or  to  for- 
feit his  property,  is  within  the  sco23e  of  the  Fourth  Amendment  to 
the  Constitution,  in  all  cases  in  which  a  search  and  seizure  would 
be;  because  it  is  a  material  ingredient,  and  effects  the  sole  object 
and  purpose  of  search  and  seizure. 

The  principal  question,  however,  remains  to  be  considered.  Is  a 
search  and  seizure,  or,  what  is  equivalent  thereto,  a  compulsory 
production  of  a  man's  private  papers,  to  be  used  in  evidence  against 
him  in  a  proceeding  to  forfeit  his  property  for  alleged  fraud  against 
the  revenue  laws  —  is  such  a  proceeding  for  such  a  purpose  an 
"unreasonable  search  and  seizure  "  within  the  meaning  of  the  Fourth 
Amendment  of  the  Constitution?  or,  is  it  a  legitimate  proceeding? 

In  order  to  ascertain  the  nature  of  the  proceedings  intended  by 
the  Fourth  Amendment  to  the  Constitution  under  the  terms  "un- 
reasonable searches  and  seizures,"  it  is  only  necessary  to  recall 
the  contemporary  or  then  recent  history  of  the  controversies  on  the 
subject,  both  in  this  country  and  in  England.  The  practice  had 
obtained  in  the  colonies  of  issuing  writs  of  assistance  to  the  revenue 
officers,  empowering  them,  in  their  discretion,  to  search  suspected 
places  for  smuggled  goods,  which  James  Otis  pronounced  "the 
worst  instrument  of  arbitrary  power,  the  most  destructive  of  Eng- 
lish liberty,  and  the  fundamental  principles  of  law,  that  ever  was 
found  in  an  English  lawbook;"'  since  they  placed  "the  liberty  of 
every  man  in  the  hands  of  every  petty  officer."^  This  was  in 
February,  1761,  in  Boston,  and  the  famous  debate  in  which  it 
occurred  was  perhaps  the  most  prominent  event  which  inaugurated 
the   resistance  of   the  colonies   to   the   oppressions  of   the  mother 

1  Note  by  the  Court.  — Coolev's  Constitutional  Limitations.  .301 -.^O.*?.  A  very  full 
and  interesting  account  of  this  discussion  will  be  found  in  the  works  of  John  Adams, 
Vol.  II.,  Appendix  A,  pp.  52.3-52.5;  Vol  X..  pp.  183,  233,  244,  2.56.  &c.,  and  in 
Quiiicy's  Eepnrts,  pp.  469-482  ;  and  see  Paxton's  Case,  id.  ,51 -.57,  whicli  was  argued 
in  November  of  the  same  year  (1761).  An  elaborate  lii-^torv  of  the  writs  of  assistance 
is  given  in  the  Appendix  to  Quincv's  Reports,  above  referred  to,  written  by  Horace 
Gray,  Jr.,  Esq.,  now  a  member  of  this  court. 


CIVIL    RIGHTS   AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

country.  "Then  and  there,"  said  John  Adams,  "then  and  there 
was  the  first  scene  of  the  first  act  of  opposition  to  the  arbitrary 
claims  of  Great  Britain.  Then  and  there  the  child  Independence 
was  born." 

These  things,  and  the  events  which  took  place  in  England  imme- 
diately following  the  argument  about  writs  of  assistance  in  Boston, 
were  fresh  in  the  memories  of  those  who  acliieved  our  independence 
and  established  our  form  of  government.  In  the  period  from  1762, 
when  the  "North  Briton"  was  started  by  John  Wilkes,  to  April, 
1766,  when  the  House  of  Commons  passed  resolutions  condemnatory 
of  general  warrants,  whether  for  the  seizure  of  persons  or  papers, 
occurred  the  bitter  controversy  between  the  English  government  and 
Wilkes,  in  which  the  latter  appeared  as  the  champion  of  popular 
rights,  and  was,  indeed,  the  pioneer  in  the  contest  which  resulted 
in  the  abolition  of  some  grievous  abuses  which  had  gradually  crept 
into  the  administration  of  public  affairs.  Prominent  and  principal 
among  these  was  the  practice  of  issuing  general  warrants  by  the 
Secretary  of  State,  for  searching  private  houses  for  the  discovery 
and  seizure  of  books  and  papers  that  might  be  used  to  convict  their 
owner  of  the  charge  of  libel.  Certain  numbers  of  the  "North 
Briton,"  particularly  No.  45,  had  been  very  bold  in  denunciation  of 
the  government,  and  were  esteemed  heinously  libellous.  By  author- 
ity of  the  Secretary's  warrant  Wilkes's  house  was  searched,  and  his 
papers  were  indiscriminately  seized.  For  this  outrage  he  sued  the 
perpetrators  and  obtained  a  verdict  of  £1,000  against  Wood,  one  of 
the  party  who  made  the  search,  and  £4,000  against  Lord  Halifax, 
the  Secretary  of  State,  who  issued  the  warrant.  The  case,  how- 
ever, which  will  always  be  celebrated  as  being  the  occasion  of  Lord 
Camden's  memorable  discussion  of  the  subject,  was  that  of  Entick 
V.  Carrington  and  Three  Other  King's  Messengers,  reported  at 
length  in  19  Howell's  State  Trials,  1029.  The  action  was  trespass 
for  entering  the  plaintiff's  dwelling-house  in  November,  1762,  and 
breaking  open  his  desks,  boxes,  &c.,  and  searching  and  examining 
his  papers.  The  jury  rendered  a  special  verdict,  and  the  case  was 
twice  solemnly  argued  at  the  bar.  Lord  Camden  pronounced  the 
judgment  of  the  court  in  Michaelmas  Term,  1765,  and  the  law  as 
expounded  by  him  has  been  regarded  as  settled  from  that  time  to 
this,  and  his  great  judgment  on  that  occasion  is  considered  as 
one  of  the  landmarks  of  English  liberty.  It  was  welcomed  and 
applauded  by  the  lovers  of  liberty  in  the  colonies  as  well  as  in  the 
mother  country.  It  is  regarded  as  one  of  the  permanent  monuments 
of  the  British  Constitution,  and  is  quoted  as  such  by  the  English 
authorities  on  that  subject  down  to  the  present  time.^ 


1  Note,  hy  the  Court.  —  See  3  May's  Constitntional  History  of  England,  Chap. 
XT. ;  Broom's  Constitutional  Law,  558 ;  Cox's  Institutions  of  the  English  Govern- 
ment, 437. 


SECT.  II.]  BOYD    V.    UNITED    STATES.  889 

The  principles  laid  down  in  this  opinion  affect  the  very  essence  of 
constitutional  liberty  and  security.  They  reach  farther  than  the 
concrete  form  of  the  case  then  before  the  court,  with  its  adventitious 
circumstances;  they  apply  to  all  invasions  on  the  part  of  the  gov- 
ernment and  its  employees  of  the  sanctity  of  a  man's  home  and  the 
privacies  of  life.  It  is  not  the  breaking  of  his  doors  and  the  rum- 
maging of  his  drawers  that  constitutes  the  essence  of  the  offence; 
but  it  is  the  invasion  of  his  indefeasible  right  of  personal  security, 
personal  liberty,  and  private  property,  where  that  right  has  never 
been  forfeited  by  his  conviction  of  some  public  offence,  —  it  is  the 
invasion  of  this  sacred  right  which  underlies  and  constitutes  the 
essence  of  Lord  Camden's  judgment.  Breaking  into  a  house  and 
opening  boxes  and  drawers  are  circumstances  of  aggravation;  but 
any  forcible  and  compulsory  extortion  of  a  man's  own  testimony  or 
of  his  private  papers  to  be  used  as  evidence  to  convict  him  of  crime 
or  to  forfeit  his  goods,  is  within  the  condemnation  of  that  judgment. 
In  this  regard  the  Fourth  and  Fifth  Amendments  run  almost  into 
each  other. 

Eeverting  then  to  the  peculiar  phraseology  of  this  act,  and  to  the 
inforination  in  the  present  case,  which  is  founded  on  it,  we  have  to 
deal  with  an  act  which  expressly  excludes  criminal  proceedings 
from  its  operation  (though  embracing  civil  suits  for  penalties  and 
forfeitures),  and  with  an  information  not  technically  a  criminal 
proceeding,  and  neither,  therefore,  wnthin  the  literal  terms  of  the 
Fifth  Amendment  to  the  Constitution  any  more  than  it  is  within 
the  literal  terms  of  the  Fourth.  Does  this  relieve  the  proceedings 
or  the  law  from  being  obnoxious  to  the  prohibitions  of  either?  We 
think  not;  we  think  they  are  within  the  spirit  of  both. 

We  have  already  noticed  the  intimate  relation  between  the  two 
amendments.  They  throw  great  light  on  each  other.  For  the  "un- 
reasonable searches  and  seizures  "  condemned  in  the  Fourth  Amend- 
ment are  almost  always  made  for  the  purpose  of  compelling  a  man  to 
give  evidence  against  himself,  which  in  criminal  cases  is  condemned 
in  the  Fifth  Amendment;  and  compelling  a  man  "in  a  criminal  case 
to  be  a  witness  against  himself,"  which  is  condemned  in  the  Fifth 
Amendment,  throws  light  on  the  question  as  to  what  is  an  "un- 
reasonable search  and  seizure  "  within  the  meaning  of  the  Fourth 
Amendment  And  we  have  been  unable  to  perceive  that  the  seizure 
of  a  man's  private  books  and  papers  to  be  used  in  evidence  against 
him  is  substantially  different  from  com])elling  him  to  be  a  witness 
against  himself.  We  think  it  is  within  the  clear  intent  and  mean- 
ing of  those  terms.  We  are  also  clearly  of  opinion  that  proceedings 
instituted  for  the  purpose  of  declaring  the  forfeiture  of  a  man's 
property  by  reason  of  offences  committed  by  him,  though  they  may 
be  civil  in  form,  are  in  their  nature  criminal.  In  this  very  case, 
the  ground  of  forfeiture  as  declared  in  the  12th  section  of  the  act  of 


890  CIVIL   RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

1874,  on  which  the  information  is  based,  consists  of  certain  acts  of 
fraud  committed  against  the  public  revenue  in  rehition  to  imported 
merchandise,    which  are  made  criminal  by  the  statute;  and    it   is 
declared  that  the  offender  shall  be  fined  not  exceeding  $5,000  nor 
less  than  $50,  or  be  imprisoned  not  exceeding  two  years,  or  both; 
and,  in  addition  to  such  fine,  such  merchandise  shall  be  forfeited. 
These  are  the  penalties  affixed  to  the  criminal  acts;  the  forfeiture 
sought  by  this  suit  being  one  of  them.     If  an  indictment  had  been 
presented  against  the  claimants,  upon  conviction  the  forfeiture  of 
the  goods  could  have  been  included  in  the  judgment.    If  the  govern- 
ment prosecutor  elects  to  waive  an  indictment,  and  to  file  a  civil 
information  against  the  claimants,  — that  is,  civil  in  form,  — can  he 
by   this   device   take   from  the  proceeding  its  criminal  aspect   and 
deprive  the   claimants   of  their  immunities  as  citizens,  and  extort 
from  them  a  production  of  their  private  papers,  or,  as  an  alterna- 
tive,   a   confession   of   guilt?     This  cannot  be.     The   information, 
though  technically  a  civil  proceeding,  is  in  substance  and  effect  a 
criminal  one.     As  showing  the  close  relation  between  the  civil  and 
criminal  proceedings  on  the  same  statute  in  such  cases,  we  may  refer 
to  the  recent  case  of  Coffey  v.  The  United  States,  [116  U.  S.]  427, 
in  which  we  decided   that  an  acquittal  on  a  criminal  information 
was  a  good  plea  in  bar  to  a  civil  information  for  the  forfeiture  of 
goods,  arising  upon  the  same  acts.     As,  therefore,  suits  for  penal- 
ties and  forfeitures  incurred  by  the  commission  of  offences  against 
the  law  are  of  this  quasi-criminal  nature,  we  think  that  they  are 
within  the  reason  of  criminal  proceedings  for  all  the  purposes  of  the 
Fourth  Amendment  of  the  Constitution,  and  of  that  portion  of  the 
Fifth  Amendment  which  declares  that  no  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself;  and  we  are 
further   of   opinion    that   a   compulsory  production  of   the   private 
books  and  papers  of  the  owner  of  goods  sought  to  be  forfeited  in 
such   a  suit   is   compelling  him  to  be    a  witness    against   himself, 
within  the  meaning  of  the  Fifth  Amendment  to  the  Constitution, 
and  is  the  equivalent  of  a  search  and  seizure  —  and  an  unreasonable 
search  and  seizure  —  within  the  meaning  of  the  Fourth  Amendment. 

We  think  that  the  notice  to  produce  the  invoice  in  this  case,  the 
order  by  virtue  of  which  it  was  issued,  and  the  law  which  authorized 
the  order,  were  unconstitutional  and  void,  and  that  the  inspection 
by  the  district  attorney  of  said  invoice,  when  produced  in  obedience 
to  said  notice,  and  its  admission  in  evidence  by  the  court,  were 
erroneous  and  unconstitutional  proceedings.  We  are  of  opinion, 
therefore,  that 

The  judgment  of  the  Circuit   Court  should  he  reversed^  and  the 
cause  remanded,  with  directions  to  aivctrd  a  new  trials 

1  Mr.  Justice  Miller  delivered  a  dissenting  opinion,  in  which  Mr.  Chief  Jds- 
xiCE  Waite  coucurred.     After  quoting  the  Fourth  Amendment,  he  says  :  — 


SECT.  Iir.]  ROBERTSON    V.    BALDWIN.  891 


Section  III.  —  Prohibition  of  Slavery. 


EOBEETSON   v.    BALDWIN. 

165  United  States,  275.     1897. 

[This  is  an  appeal  from  the  judgment  of  the  District  Court  for 
the  Northern  District  of  California  dismissing  a  writ  of  habeas 
corpus  issued  upon  the  petition  of  Robertson  and  others  .for  release 
from  imprisonment  by  the  United  States  marshal  under  commit- 
ment by  a  United  States  commissioner  for  trial  upon  a  charge  for 
disobedience  of  the  lawful  orders  of  the  master  of  the  American 
barkantine  "Arago."  Robertson  and  the  other  petitioners  were 
sailors  on  board  the  "Arago,"  and  having  deserted  the  vessel  in 
violation  of  their  contract  as  seamen  they  had  been  returned  to 
said-  vessel  against  their  will  and  by  force,  under  the  provisions 
of  Rev.  Stat.  §§  459G-4599;  and  it  is  claimed  that  subdivision  1  of 
said  section  4596,  which  provides  a  punishment  of' imprisonment  for 
desertion  by  any  seaman,  is  unconstitutional  under  the  Thirteenth 
Amendment  to  the  Federal  Constitution,  as  involving  involuntary 
servitude.     Other  facts  in  the  case  and  a  portion  of  the  opinion  of 

"  The  tilings  here  forbidden  are  two,  —  search  and  seizure.  And  not  all  searches 
nor  all  seizures  are  forbidden,  but  only  those  that  are  unreasonable.  Reasonable 
searclies,  therefore,  may  be  allowed,  and  if  the  tiling  souglit  be  found,  it  may  be 
seized. 

"  But  what  search  does  this  statute  authorize  ?  If  the  mere  service  of  a  notice 
to  produce  a  paper  to  be  used  as  evidence,  which  the  party  can  obey  or  not  as  he 
chooses,  is  a  searcli,  theu  a  ciiange  has  taken  place  in  the  meaning  of  words, 'which 
has  not  come  within  my  reading,  and  wliich  T  think  was  unknown  at  the  time  the 
Constitution  was  made.  The  searches  meant  by  the  Constitution  were  such  as  led 
to  seizure  when  the  search  was  successful.  But  the  statute  in  this  case  uses  language 
carefully  framed  to  forbid  any  seizure  under  it,  as  I  have  already  pointed  out. 

"  While  the  framers  of  the  Con.stitution  had  their  attention  drawn,  no  doubt,  to 
the  abuses  of  tliis  power  of  searching  jirivate  houses  and  seizing  ])rivate  ]iapers,  as 
practised  in  Isngland,  it  is  obvious  that  they  oidy  intended  to  restrain  tlie  nbuse, 
wliile  tliey  did  not  abolish  the  power.  Hence  it  is  only  inirpnsnunUr  searches  and 
seizures  tliat  are  forbidden,  and  the  means  of  securing  tliis  protection  was  by  al)olish- 
ing  searches  under  warrants,  which  were  called  general  warrants,  because  they 
authorized  searches  in  any  place,  for  any  tiling. 

"  This  was  forbidden,  while  searches  founded  on  affidavits,  and  made  under  war- 
rants which  described  the  thing  to  be  searched  for,  the  person  and  place  to  be 
searclied.  are  still  permitted. 

"  I  cannot  conceive  how  a  statute  aptly  framed  to  require  the  production  of  evi- 
dence in  a  suit  by  mere  service  of  notice  on  the  partv,  who  has  that  evidence  in  hia 
possession,  can  be  held  to  authorize  an  unreasonable  search  or  seizure,  when  no 
seizure  is  authorized  or  permitted  b\-  the  statute." 


892  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CUAP.  XIII 

the  court  on  another  question  have  already  been  given ;  see  supra, 
p.  782.] 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

2.  The  question  whether  sections  4598  and  4599  conflict  with  the 
Thirteenth  Amendment,  forbidding  slavery  and  involuntary  servi- 
tude, depends  upon  the  construction  to  be  given  to  the  term  "  invol- 
untary servitude."  Does  the  epithet  "involuntary"  attach  to  the 
word  "  servitude  "  continuously,  and  make  illegal  any  service  which 
becomes  involuntary  at  any  time  during  its  existence;  or  does  it 
attach  only  at  the  inception  of  the  servitude,  and  characterize  it  as 
unlawful  because  unlawfully  entered  into?  If  the  former  be  the 
true  construction,  then  no  one,  not  even  a  soldier,  sailor,  or  appren- 
tice, can  surrender  his  liberty,  even  for  a  day;  and  the  soldier  may 
desert  his  regiment  upon  the  eve  of  battle,  or  the  sailor  abandon  his 
ship  at  any  intermediate  port  or  landing,  or  even  in  a  storm  at  sea, 
provided  only  he  can  find  means  of  escaping  to  another  vessel.  If 
the  Litter,  then  an  individual  may,  for  a  valuable  consideration, 
contract  for  the  surrender  of  his  personal  liberty  for  a  definite  time 
and  for  a  recognized  purpose,  and  subordii:!ate  his  going  and  coming 
to  the  will  of  another  during  the  continuance  of  the  contract;  —  not 
that  all  such  contracts  would  be  lawful,  but  that  a  servitude  which 
was  knowingly  and  Avillingly  entered  into  could  not  be  termed  "  in- 
voluntar5\"  Thus,  if  one  should  agree,  for  a  yearly  wage,  to  serve 
another  in  a  particular  capacity  during  his  life,  and  never  to  leave 
his  estate  without  his  consent,  the  contract  might  not  be  enforce- 
able for  the  want  of  a  legal  remedy,  or  might  be  void  upon  grounds 
of  public  policy,  but  the  servitude  could  not  be  properly  termed 
"involuntary."  Such  agreements  for  a  limited  personal  servitude  at 
one  time  were  very  common  in  England,  and  by  statute  of  June  17, 
1823,  4  Geo.  IV.  c.  34,  §  3,  it  was  enacted  that  if  any  servant  in 
husba,ndry,  or  any  artificer,  calico  printer,  handicraftsman,  miner, 
collier,  keelman,  pitman,  glassman,  potter,  laborer,  or  other  person, 
should  contract  to  serve  another  for  a  definite  time,  and  should 
desert  such  service  during  the  term  of  the  contract,  he  was  made 
liable  to  a  criminal  punishment.  The  breach  of  a  contract  for  per- 
sonal service  has  not,  however,  been  recognized  m  this  countrj'-  as 
involving  a  liability  to  criminal  punishment,  except  in  the  cases 
of  soldiers,  sailors,  and  possibly  some  others,  nor  would  public 
opinion  tolerate  a  statute  to  that  effect. 

But  we  are  also  of  opinion  that,  even  if  the  contract  of  a  seaman 
could  be  considered  within  the  letter  of  the  Thirteenth  Amendment, 
it  is  not,  within  its  spirit,  a  case  of  involuntary  servitude.  The 
law  is  perfectly  well  settled  that  the  first  ten  amendments  to  the 
Constitution,  commonly  known  as  the  Bill  of  Eights,  were  not 
intended  to  lay  down  any  novel  principles  of  government,  but 
simply  to  embody  certain  guaranties  and  immunities  which  we  had 


SECT.  III.]  ROBERTSON   V.    BALDWIN.  893 

inherited  from  our  English  ancestors,  and  which  had  from  time 
immemorial  been  subject  to  certain  well-recognized  exceptions  aris- 
ing from  the  necessities  of  the  case.  In  incorporating  these 
principles  into  the  fundamental  law  there  was  no  intention  of  dis- 
regarding the  exceptions,  which  continued  to  be  recognized  as  if 
they  had  been  formally  expressed.  Thus,  the  freedom  of  speech 
and  of  the  press  (art.  1)  does  not  permit  the  publication  of  libels, 
blasphemous  or  indecent  articles,  or  other  publications  injurious  to 
pul)lic  morals  or  private  reputation;  the  right  of  the  people  to  keep 
and  bear  arms  (art.  2)  is  not  infringed  by  laws  prohibiting  the 
carrying  of  concealed  weapons;  the  provision  that  no  person  shall 
be  twice  put  in  jeopardy  (art.  5)  does  not  prevent  a  second  trial, 
if  upon  the  first  trial  the  jury  failed  to  agree,  or  if  the  verdict  was 
set  aside  upon  the  defendant's  motion  (United  States  v.  Ball,  1G3 
U.  S.  662,  672) ;  nor  does  the  provision  of  the  same  article  that  no 
one  shall  be  a  witness  against  himself  impair  his  obligacion  to 
testify,  if  a  prosecution  against  him  be  barred  by  the  lapse  of  time, 
a  pardon,  or  by  statutory  enactment  (Brown  v.  Walker,  161  U.  S. 
591,  and  cases  cited) ;  nor  does  the  provision  that  an  accused  person 
shall  be  confronted  with  the  witnesses  against  him  prevent  the 
admission  of  dying  declarations,  or  the  depositions  of  witnesses 
who  have  died  since  the  former  trial. 

The  proliibition  of  slavery,  in  the  Thirteenth  Amendment,  is  well 
known  to  have  been  adopted  with  reference  to  a  state  of  affairs 
which  had  existed  in  certain  States  of  the  Union  since  the  founda- 
tion of  the  government,  while  the  addition  of  the  words  "involun- 
tary servitude  "  were  said  in  the  Slaughter-house  Cases,  16  Wall.  36, 
to  have  been  intended  to  cover  the  system  of  Mexican  peonage  and 
the  Chinese  coolie  trade,  the  practical  operation  of  which  might 
have  been  a  revival  of  the  institution  of  slavery  under  a  different 
and  less  offensive  name.  It  is  clear,  however,  that  the  amen<lment 
was  not  intended  to  introduce  any  novel  doctrine  with  respect  to 
certain  descriptions  of  service  which  have  always  been  treated  as 
exceptional,  such  as  military  and  naval  enlistments,  or  to  disturb 
the  right  of  parents  and  guardians  to  the  custody  of  tlieir  minor 
children  or  wards.  The  amendment,  however,  makes  no  distinction 
between  a  public  and  a  private  service.  To  say  that  persons  engaged 
in  a  public  service  are  not  within  the  amendment  is  to  admit  that 
there  are  exceptions  to  its  general  language,  and  the  further  ques- 
tion is  at  once  presented,  where  shall  the  line  be  drawn?  We  know 
of  no  better  answer  to  make  than  to  say  that  services  which  have 
from  time  immemorial  been  treated  as  exceptional  shall  not  be 
regarded  as  within  its  purview. 

From  the  earliest  historical  period  the  contract  of  the  sailor  has 
been  treated  as  an  exceptional  one,  and  involving,  to  a  certain 
extent,  the  surrender  of  his  personal  liberty  during  the  life  of  the 
contract.     Indeed,    the   business    of   navigation    could   scarcely    be 


894  CIVIL    lilGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

carried  on  without  some  guaranty,  beyond  the  ordinary  civil 
remedies  upon  contract,  tliat  the  sailor  will  not  desert  the  ship  at  a 
critical  moment,  or  leave  her  at  some  place  where  seamen  are  im- 
possible to  be  obtained  —  as  Molloy  forcibly  expresses  it,  "to  rot  in 
her  neglected  brine."  Such  desertion  might  involve  a  long  delay 
of  the  vessel  while  the  master  is  seeking  another  crew,  an  abandon- 
ment of  the  voyage,  and,  in  some  cases,  the  safety  of  the  ship 
itself.  Hence  the  laws  of  nearly  all  maritime  nations  have  made 
provision  for  securing  the  personal  attendance  of  the  crew  on  board, 
and  for  their  criminal  punishment  for  desertion,  or  absence  without 
leave  during  the  life  of  the  shipping  articles. 

[Provisions  of  early  maritime  codes  for  punishment  of  deserting 
seamen  are  set  out.] 

The  provision  of  Rev.  Stat.  §  459S,  under  wliicli  these  proceed- 
ings were  taken,  was  first  enacted  by  Congress  in  1790,  1  Stat. 
131,  §  7.  This  act  provided  for  the  apprehension  of  deserters  and 
their  delivery  on  board  the  vessel,  but  apparently  made  no  previ- 
sion for  imprisonment  as  a  punishment  for  desertion ;  but  by  the 
Shipping  Commissioners'  Act  of  1872,  c.  322,  §  51,  17  Stat.  273, 
now  incorporated  into  the  Revised  Statutes  as  section  4596,  the 
court  is  authorized  to  add  to  forfeiture  of  wages  for  desertion 
imprisonment  for  a  period  of  not  more  than  three  months,  and  for 
absence  without  leave  imprisonment  for  not  more  than  one  month. 
In  this  act  and  the  amendments  thereto  very  careful  provisions  are 
made  for  the  protection  of  seamen  against  the  frauds  and  cruelty  of 
masters,  the  devices  of  boarding-house  keepers,  and,  as  far  as  pos- 
sible, against  the  consequences  of  their  own  ignorance  and  improvi- 
dence. At  the  same  time  discipline  is  more  stringently  enforced  by 
additional  punishments  for  desertion,  absence  without  leave,  diso- 
bedience, insubordination,  and  barratry.  Indeed,  seamen  are  treated 
by  Congi'ess,  as  well  as  by  the  Parliament  of  Great  Britain,  as 
deficient  in  that  full  and  intelligent  responsibility  for  their  acts 
which  is  accredited  to  ordinary  adults,  and  as  needing  the  protection 
of  the  law  in  the  same  sense  in  which  miners  and  wards  are  entitled 
to  tlie  protection  of  their  parents  and  guardians:  '''' queinadmodxim 
pater  in  JjIIos,  magister  in  discipulos,  dnminus  in  serxios  vel  fami- 
liares."  The  ancient  characterization  of  seamen  as  "wards  of  admi- 
ralty "  is  even  more  accurate  now  than  it  was  formerlj'. 

In  the  face  of  this  legislation  upon  the  subject  of  desertion  and 
absence  without  leave,  which  was  in  force  in  this  country  for 
more  than  sixty  years  before  the  Thirteenth  Amendment  was 
adopted,  and  similar  legislation  abroad  from  time  immemorial,  it 
cannot  be  open  to  doubt  that  the  provision  against  involuntary  ser- 
vitude was  never  intended  to  apydy  to  their  contracts. 

The  judgment  of  the  court  below  is,  therefore, 

Affirmed.^ 

1  Mr.  Justice  Haelax  delivered  a  dissenting  opinion. 


SECT.  IV.  a.]     Murray's  lessee  v.  hoboken  land,  etc.  co.      895 


Section  IV.  —  The  Guaranties  of  Life,  Liberty,  and 

Equality. 


a.    Due  Process  of  Law. 

MUERAY'S   LESSEE   v.    THE   HOBOKEN   LAND   AND 
IMPROVEMENT    COMPANY. 

18  Howard,  272.     1855. 

Mr.   Justice  Curtis  delivered  the  opinion  of  the  court. 

This  case  cornes  before  us  on  a  certificate  of  division  of  opinion 
of  the  Judges  of  the  Circuit  Court  of  the  United  States  for  the  dis- 
trict of  New  Jerse3\  It  is  an  action  of  ejectment,  in  which  both 
parties  claim  title  under  Samuel  Swartwout,  — the  plaintiffs,  under 
the  levy  of  an  execution  on  the  lOth  day  of  April,  1839,  and  tlie 
defendants,  under  a  sale  made  by  the  marshal  of  the  United  States 
for  the  district  of  New  Jersey,  on  the  1st  day  of  June,  1839,  —  by 
virtue  of  what  is  denominated  a  distress  warrant,  issued  by  the 
solicitor  of  the  treasury  under  the  act  of  Congress  of  May  15,  1820, 
entitled  "  An  Act  providing  for  the  better  organization  of  the 
Treasury  Department."  This  act  having  provided,  by  its  first  sec- 
tion, that  a  lien  for  the  amount  due  should  exist  on  the  lands  of  the 
debtor  from  the  time  of  the  levy  and  record  thereof  in  the  office  of 
the  District  Court  of  the  United  States  for  the  proper  district,  and 
the  date  of  that  levy  in  this  case  being  prior  to  the  date  of  the  judg- 
ment under  which  the  plaintiffs'  title  was  made,  the  question  occurred 
in  the  Circuit  Court  "  whether  the  said  warrant  of  distress  in  the 
special  verdict  mentioned,  and  the  proceedings  thereon  and  anterior 
thereto,  under  which  the  defendants  claim  title,  are  sufficient, 
under  the  Constitution  of  the  United  States  and  tlie  law  of  the 
land,  to  pass  and  transfer  the  title  and  estate  of  the  said  SAvartwout 
in  and  to  the  premises  in  question,  as  against  the  lessors  of  the 
plaintiff."  Upon  this  question,  the  judges  being  of  opposite 
opinions,  it  was  certified  to  this  court,  and  has  been  argued  by 
counsel. 

No  objection  has  been  taken  to  the  warrant  on  account  of  any 
defect  or  irregularity  in  the  proceedings  which  preceded  its  issue. 
It  is  not  denied  that  they  Avere  in  conformity  with  the  require- 
ments of  the  act  of  Congress.  The  special  verdict  finds  thnt 
Swartwout  was  collector  of  the  customs  for  the  port  of  New  York 
for  eight  years  before  the  29th  of  March,  183S:  that  on  the  10th 
of  November,  1838,  his  account,  as  such  collector,  was  audited  by 


896  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

the  first  auditor,  and  certified  by  the  first  comptroller  of  the  treas- 
ury; and  for  the  balance  thus  found,  amounting  to  the  sum  of 
^1,374,119.65,  the  w.irraut  in  question  was  issued  by  the  solicitor 
of  the  treasury.  Its  validity  is  denied  by  the  plaintiffs,  upon  the 
ground  that  so  much  of  the  act  of  Congress  as  authorized  it  is  in 
conflict  with  the  Constitution  of  the  United  States. 

In  support  of  this  position,  the  plaintiff  relies  on  that  part  of  the 
first  section  of  the  third  article  of  the  Constitution  which  requires 
the  judicial  power  of  the  United  States  to  be  vested  in  one  Supreme 
Court  and  in  such  inferior  courts  as  Congress  may,  from  time  to 
time,  ordain  and  establish;  the  judges  whereof  shall  hold  their 
offices  during  good  behavior,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation,  which  shall  not  he  diminished  during 
their  continuance  in  office.  Also,  on  the  second  section  of  the  same 
article,  which  declares  that  the  judicial  power  shall  extend  to  con- 
troversies to  which  the  United  States  shall  be  a  party. 

It  must  be  admitted  that  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was 
an  exercise  of  the  judicial  power  of  the  United  States,  the  proceed- 
ing was  void;  for  the  officers  who  performed  these  acts  could  exer- 
cise no  part  of  that  judicial  power.  They  neither  constituted  a 
court  of  the  United  States,  nor  were  they,  or  either  of  them,  so 
connected  with  any  such  court  as  to  perform  even  any  of  the  minis- 
terial duties  which  arise  out  of  judicial  proceedings. 

The  question,  whether  these  acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  by  the  further  objection  of  the  plaintiff,  that  the 
effect  of  the  proceedings  authorized  by  the  act  in  question  is  to 
deprive  the  party,  against  whom  the  warrant  issues,  of  his  liberty 
and  property,  "without  due  process  of  law;"  and,  therefore,  is  in 
conflict  with  the  fifth  article  of  the  amendments  of  the  Constitution. 

Taking  these  two  objections  together,  they  raise  the  questions, 
whether,  under  the  Constitution  of  the  United  States,  a  collector  of 
the  customs,  from  whom  a  balance  of  account  has  been  found  to  be 
due  by  accounting  officers  of  the  treasury,  designated  for  that  pur- 
pose by  law,  can  be  deprived  of  his  liberty,  or  property,  in  order  to 
enforce  payment  of  that  balance,  without  the  exercise  of  the  judicial 
power  of  the  United  States,  and  yet  by  due  process  of  law,  within 
the  meaning  of  those  terms  in  the  Constitution;  and  if  so,  then, 
secondly,  whether  the  warrant  in  question  was  such  due  process  of 
law? 

The  words,  "due  process  of  law,"  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words,  "by  the  law  of  the  land," 
in  Magna  Charta.  Lord  Coke,  in  his  commentary  on  those  words 
(2  Inst  50),  says  they  mean  due  process  of  law.  The  constitutions 
which  had  been  adopted  by  the  several  States  before  the  formation 
of  the  Federal  Constitution,  following  the  language  of  the  great 


SECT.  IV.  a.]     Murray's  lessee  v.  hoboken  land,  etc.  co.      897 

chii'ter  more  closely,  generally  contained  the  words,  "but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land."  The  ordinance  of 
Congress  of  July  13,  1787,  for  the  government  of  the  territory  of 
the  United  States  northwest  of  the  river  Ohio,  used  the  same 
words. 

The  Constitution  of  the  United  States,  as  adopted,  contained  the 
provision,  that  "the  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury."  When  the  fifth  article  of  amendment  con- 
taining the  words  now  in  question  was  made,  the  trial  by  jury  in 
criminal  cases  had  thus  already  been  provided  for.  By  the  sixth 
and  seventh  articles  of  amendment,  further  special  provisions  were 
separately  made  for  that  mode  of  trial  in  civil  and  criminal  cases. 
To  have  followed,  as  in  the  State  constitutions,  and  in  the  ordinance 
of  1787,  the  words  of  Magna  Charta,  and  declared  that  no  person 
shall  be  deprived  of  his  life,  liberty,  or  property  but  by  the  judg- 
ment of  his  peers  or  the  law  of  the  land,  would  have  been  in  part 
supei'fluous  and  inappropriate.  To  have  taken  the  clause,  "law  of 
the  land,"  without  its  immediate  context,  might  possibly  have  given 
rise  to  doubts,  which  would  be  effectually  dispelled  by  using  those 
words  which  the  great  commentator  on  Magna  Charta  had  declared 
to  be  the  true  meaning  of  the  phrase,  "law  of  the  land,"  in  that 
instrument,  and  which  were  undoubtedly  then  received  as  their  true 
meaning. 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied. 
It  was  issued  in  conformity  with  an  act  of  Congress.  But  is  it 
"due  process  of  law"?  The  Constitution  contains  no  description  of 
those  processes  which  it  was  intended  to  allow  or  forbid.  It  does 
not  even  declare  what  principles  are  to  be  applied  to  ascertain 
whether  it  be  due  process.  It  is  manifest  that  it  was  not  left  to 
the  legislative  power  to  enact  any  process  which  might  be  devised. 
The  article  is  a  restraint  on  the  legislative  as  well  as  on  the  execu- 
tive and  judicial  powers  of  the  government,  and  cannot  be  so  con- 
strued as  to  leave  Congress  free  to  make  any  process  "due  process  of 
law,"  by  its  mere  will.  To  what  principles,  then,  are  we  to  resort 
to  ascertain  whether  this  process,  enacted  by  Congress,  is  due 
process  ?  To  this  the  answer  must  be  twofold.  We  must  examine 
the  Constitution  itself,  to  see  whether  this  process  be  in  conflict 
with  any  of  its  provisions.  If  not  found  to  be  so,  we  must  look  to 
those  settled  usages  and  modes  of  proceeding  existing  in  the  com- 
mon and  statute  law  of  England,  before  the  emigration  of  our 
ancestors,  and  which  are  shown  not  to  have  been  unsuited  to  their 
civil  and  political  condition  by  having  been  acted  on  by  them  after 
the  settlement  of  this  country.  We  apprehend  there  has  been  no 
period,  since  the  establishment  of  the  English  monarchy,  when 
there  has  not  been,  by  the  law  of  the  land,  a  summary  method  for 
fie  recovery  of  debts  due  to  the  crown,  and  especially  those  due 
from  receivers  of  the  revenues.     It  is  difficult,  at  this  day,  to  trace 

57 


S9S  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.   XIIT. 

with  precision  all  the  proceedings  had  for  these  purposes  in  the 
earliest  ages  in  the  common  law.  That  they  were  summary  and 
severe,  and  had  been  used  for  purposes  of  oppi-ession,  is  inferable 
from  the  fact  that  one  chapter  of  Magna  Charta  treats  of  their 
restraint.  It  declares :  "  We  or  our  bailiffs  shall  not  seize  any  land 
or  rent  for  any  debt  as  long  as  the  present  goods  and  chattels  of  the 
debtor  do  suffice  to  pay  the  debt,  and  the  debtor  himself  be  ready 
to  satisfy  therefor.  Neither  shall  the  pledges  of  the  debtor  be  dis- 
trained, as  long  as  the  principal  debtor  is  sufficient  for  the  pay- 
ment of  the  debt;  and  if  the  principal  debtor  fail  in  payment  of  the 
debt,  having  nothing  wherewith  to  pay,  or  will  not  pay  where  he  is 
able,  the  pledges  shall  answer  for  the  debt.  And  if  they  will,  they 
shall  have  the  lands  and  rents  of  the  debtor  until  they  be  satisfied 
of  the  debt  which  they  before  paid  for  him,  except  that  the  prin- 
cipal debtor  can  show  himself  to  be  acquitted  against  the  said 
sureties." 

By  the  common  law,  the  body,  lands,  and  goods  of  the  king's 
debtor  were  liable  to  be  levied  on  to  obtain  payment.  In  conform- 
ity with  the  above  provision  of  ^lagna  Charta  a  conditional  writ 
was  framed,  commanding  the  sheriff  to  inquire  of  the  goods  and 
chattels  of  the  debtor,  and,  if  they  were  insufficient,  then  to  extend 
on  the  lands.  3  Co.  12  b;  Com.  Dig.,  Debt,  G.  2;  2  Inst.  19.  But 
it  is  said  that  since  the  statute  33  Hen.  VIII.  c.  39,  the  practice  has 
been  to  issue  the  writ  in  an  absolute  form,  without  requiring  any 
previous  inquisition  as  to  the  goods.     Gilbert's  Exch.  127. 

To  authorize  a  writ  of  extent,  however,  the  debt  must  be  matter 
of  record  in  the  king's  exchequer.  The  33  Hen.  VIII.  c.  39,  §  50, 
made  all  specialty  debts  due  to  the  king  of  the  same  force  and  effect 
as  debts  by  statute  staple,  thus  giving  to  such  debts  the  effect  of 
debts  of  record.  In  regard  to  debts  due  upon  simple  contract,  other 
than  those  due  from  collectors  of  the  revenue  and  other  accountants 
of  the  crown,  the  practice,  from  very  ancient  times,  has  been  to 
issue  a  commission  to  inquire  as  to  the  existence  of  the  debt. 

This  commission  being  returned,  the  debt  found  was  thereby 
evidenced  by  a  record,  and  an  extent  could  issue  thereon.  Ko 
notice  was  required  to  be  given  to  the  alleged  debtor  of  the  execu- 
tion of  this  commission  (2  Tidd's  Pr.  1047),  though  it  seems  that, 
in  some  cases,  an  order  for  notice  might  be  obtained.  1  Ves.  269. 
Formerly,  no  witnesses  were  examined  by  the  commission  (Chitty's 
Prerog.  267;  West,  22);  the  affidavit  prepared  to  obtain  an  order 
for  an  immediate  extent  being  the  only  evidence  introduced.  But 
this  practice  has  been  recently  changed.  11  Price,  29.  By  the 
statute  13  Eliz.  c.  4,  balances  due  from  receivers  of  the  revenue 
and  all  other  accountants  of  the  crown  were  placed  on  the  same 
footing  as  debts  acknowledged  to  be  due  by  statute  staple.  These 
balances  were  found  by  auditors,  the  particular  officers  acting  there- 
on having  been  from  time  to  time  varied  by  legislation  and  usage. 


SECT.  IV.  a.]     Murray's  lessee  v.  hoboken  land,  etc.  co,      S99 

The  different  methods  of  accounting  in  ancient  and  modern  times 
are  described  in  Mr.  Price's  Treatise  on  the  Law  and  Practice  of  the 
Exchequer,  ch.  9.  Such  balances,  when  found,  were  certified  to 
what  was  called  the  pipe  office,  to  be  given  in  charge  to  the  sheriffs 
for  their  levy.     Price,  231. 

If  an  accountant  failed  to  render  his  accounts,  a  process  was 
issued,  termed  a  capias  nomine  district ionis,  against  the  bod}*,  goods, 
and  lands  of  the  accountant.     Price,  162,  233,  note  3. 

This  brief  sketch  of  the  modes  of  proceeding  to  ascertain  and 
enforce  payment  of  balances  due  from  receivers  of  the  revenue  in 
England  is  sufficient  to  show  that  the  methods  of  ascertaining  the 
existence  and  amount  of  such  debts,  and  compelling  their  payment, 
have  varied  widely  from  the  usual  course  of  the  common  law  on 
other  subjects;  and  that,  as  respects  such  debts  due  from  such 
officers,  "the  law  of  the  land"  authorized  the  employment  of  audi- 
tors, and  an  inquisition  without  notice,  and  a  species  of  execution 
bearing  a  very  close  resemblance  to  what  is  termed  a  warrant  of 
distress  in  the  act  of  1820,  now  in  question. 

It  is  certain  that  this  diversity  in  "the  law  of  the  land"  between 
public  defaulters  and  ordinary  debtors  was  understood  in  this  coun- 
try, and  entered  into  the  legislation  of  the  colonies  and  provinces, 
and  more  especially  of  the  States,  after  the  declaration  of  inde- 
pendence and  before  the  formation  of  the  Constitution  of  the  United 
States.  Not  only  was  the  process  of  distress  in  nearly  or  quite 
universal  use  for  the  collection  of  taxes,  but  what  was  generally 
termed  a  warrant  of  distress,  running  against  the  body,  goods,  and 
chattels  of  defaulting  receivers  of  public  money,  was  issued  to  some 
public  officer,  to  whom  was  committed  the  power  to  ascertain  the 
amount  of  the  default,  and  by  such  warrant  proceed  to  collect  it. 
Without  a  wearisome  repetition  of  details,  it  will  be  sufficient  to 
give  one  section  from  the  JMassachusetts  act  of  1786:  "That  if  any 
constable  or  collector,  to  whom  any  tax  or  assessment  shall  be  com- 
mitted to  collect,  shall  be  remiss  and  negligent  of  his  duty,  in  not 
levying  and  paying  unto  the  treasurer  and  receiver-general  such 
sum  or  sums  of  money  as  he  shall  from  time  to  time  have  received, 
and  as  ought  by  him  to  have  been  paid  within  the  respective  time 
set  and  limited  by  the  assessor's  warrant,  pursuant  to  law,  the 
treasurer  and  receiver-general  is  hereby  empowered,  after  the  expira- 
tion of  the  time  so  set,  by  warrant  under  his  hand  and  seal,  directed 
to  the  sheriff  or  his  deputy,  to  cause  such  sura  and  sums  of  money 
to  be  levied  by  distress  and  sale  of  such  deficient  constable  or  col- 
lector's estate,  real  and  personal,  returning  the  overphis,  if  any 
there  be;  and,  for  want  of  such  estate,  to  take  the  body  of  such  con- 
stable or  collector,  and  imprison  him  until  he  shall  pay  the  same; 
which  warrant  the  sheriff  or  his  deputy  is  hereby  empowered  and 
required  to  execute  accordingly."  Then  follows  another  provision, 
that  if  the  deficient  sum  shall  not  be  made  by  the  first  warrant, 


900  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

another  shall  issue  against  the  town;  and  if  its  proper  authorities 
shall  fail  to  take  the  prescribed  means  to  raise  and  pay  the  same,  a 
like  warrant  of  distress  shall  go  against  the  estates  and  bodies  of 
the  assessors  of  such  town.  Laws  of  Massachusetts,  Vol.  I.  p.  266. 
Provisions  not  distinguishable  from  these  in  principle  may  be  found 
in  the  acts  of  Connecticut  (Revision  of  1784,  p.  198) ;  of  Pennsyl- 
vania, 1782  (2  Lav/s  of  Penn.  13) ;  of  South  Carolina,  1788  (5  Stats, 
of  S.  C.  55) ;  Xew  York,  1788  (1  Jones  &  Varick's  Laws,  34);  see 
also  1  Henning's  Stats,  of  Virginia,  319,  343;  12  ib.  562;  Laws  of 
Vermont  (1797,  1800),  340.  Since  the  formation  of  the  Constitu- 
tion of  the  United  States,  other  States  have  passed  similar  laws. 
See  7  La.  Ann.  192.  Congress,  from  an  early  period,  and  in 
repeated  instances,  has  legislated  in  a  similar  manner.  By  the 
fifteenth  section  of  the  "  Act  to  lay  and  collect  a  direct  tax  within 
the  United  States,"  of  July  14,  1798,  the  supervisor  of  each  district 
was  authorized  and  required  to  issue  a  warrant  of  distress  against 
any  delinquent  collector  and  his  sureties,  to  be  levied  upon  the 
goods  and  chattels,  and  for  want  thereof  upon  the  body,  of  such  col- 
lector; and,  failing  of  satisfaction  thereby,  upon  the  goods  and 
chattels  of  the  sureties.  1  Stats,  at  Large,  602.  And  again,  in 
1813  (3  Stats,  at  Large,  33,  §  28)  and  1815  (3  Stats,  at  Large,  177 
§  33),  the  comptroller  of  the  treasury  was  empowered  to  issue  a 
similar  warrant  against  collectors  of  the  customs  and  their  sure- 
ties. This  legislative  construction  of  the  Constitution,  commencing 
so  early  in  the  government,  when  the  first  occasion  for  this  manner 
of  proceeding  arose,  continued  throughout  its  existence,  and  re- 
peatedly acted  on  bj^  the  judiciary  and  the  executive,  is  entitled  to 
no  inconsiderable  weight  upon  the  question  whether  the  proceeding 
adopted  by  it  was  "due  process  of  law."  Prigg  v.  Pennsylvania, 
16  Pet.  621;  United  States  v.  Nourse,  9  Pet.  8;  Randolph's  Case, 
2  Brock.  447;  Nourse's  Case,  4  Cranch  C.  C.  R.  151;  Bullock's  Case 
(cited  6  Pet.  485,  note). 

Tested  by  the  common  and  statute  law  of  England  prior  to  the 
emigration  of  our  ancestors,  and  by  the  laws  of  many  of  the  States 
at  the  time  of  the  adoption  of  this  amendment,  the  proceedings 
authorized  by  the  act  of  1820  cannot  be  denied  to  be  due  process 
of  law,  when  applied  to  the  ascertainment  and  recovery  of  balances 
due  to  the  government  from  a  collector  of  customs,  unless  there 
exists  in  the  Constitution  some  other  provision  which  restrains 
Congress  from  authorizing  such  proceedings.  For,  though  "due 
process  of  law"  generally  implies  and  includes  actor,  revs,  judex, 
regular  allegations,  opportunity  to  answer,  and  a  trial  according  to 
some  settled  course  of  judicial  proceedings  (2  Inst.  47,  50;  Hoke  v. 
Henderson,  4  Dev.  N.  C.  Rep.  15;  Taylor  v.  Porter,  4  Hill,  146; 
Van  Zandt  v.  Waddel,  2  Yerg.  260;  State  Bank  v.  Cooper,  ib. 
.599;  Jones's  Heirs  v.  Perry,  10  ib.  59;  Greene  v.  Briggs,  1  Curtis, 
311),   yet   this    is   not   universally  true.     There   may  be,    and  we 


SECT.  IV.  a.]     MURRAY'S    LESSEE   V.    HOBOKEN    LAND,   ETC.    CO.        001 

have  seen  that  there  are,  cases  under  the  law  of  England  after 
Magna  Charta,  and  as  it  was  brought  to  this  country  and  acted  on 
here,  in  which  process,  in  its  nature  final,  issues  against  the  body, 
lands,  and  goods  of  certain  public  debtors  without  any  such  trial; 
and  this  brings  us  to  the  question,  whether  those  provisions  of  the 
Constitution  which  relate  to  the  judicial  power  are  incompatible 
with  these  proceedings  ? 

That  the  auditing  of  the  accounts  of  a  receiver  of  public  moneys 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted.  So 
are  all  those  administrative  duties  the  performance  of  which  in- 
volves an  inquiry  into  the  existence  of  facts  and  the  application 
to  them  of  rules  of  law.  In  this  sense  tlie  act  of  the  President  in 
calling  out  the  militia  under  the  act  of  1795,  12  Wheat.  19,  or  of  a 
commissioner  who  makes  a  certificate  for  the  extradition  of  a  crimi- 
nal, under  a  treaty,  is  judicial.  But  it  is  not  sufficient  to  bring 
such  matters  under  the  judicial  power,  that  they  involve  the  exer- 
cise of  judgment  upon  law  and  fact.  United  States  v.  Ferreira,  13 
How.  40.  It  is  necessary  to  go  further,  and  show  not  only  that  the 
adjustment  of  the  balances  due  from  accounting  officers  may  be,  but 
from  their  nature  must  be,  controversies  to  which  the  United  States 
is  a  party,  within  the  meaning  of  the  second  section  of  the  third 
article  of  the  Constitution.  We  do  not  doubt  the  power  of  Congress 
to  provide  by  law  that  such  a  question  shall  form  the  subject- 
matter  of  a  suit  in  which  the  judicial  power  can  be  exerted.  The 
act  of  1820  makes  such  a  provision  for  reviewing  the  decision  of  the 
accounting  officers  of  the  treasury.  But,  until  reviewed,  it  is  final 
and  binding;  and  the  question  is,  whether  its  subject-matter  is 
necessarily,  and  without  regard  to  the  consent  of  Congress,  a 
judicial  controversy.     And  we  are  of  opinion  it  is  not. 

Among  the  legislative  powers  of  Congress  are  the  powers  "  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises;  to  pay  the  debts 
and  provide  for  the  common  defence  and  welfare  of  the  United 
States;  to  raise  and  support  armies;  to  provide  and  maintain  a  navy; 
and  to  make  all  laws  which  may  be  necessary  and  proper  for  carry- 
ing into  execution  those  powers."  What  officers  should  be  appointed 
to  collect  the  revenue  thus  authorized  to  be  raised,  and  to  disburse 
it  in  payment  of  the  debts  of  the  United  States;  what  duties  should 
be  required  of  them;  when  and  how,  and  to  whom  they  should 
account,  and  what  security  they  should  furnish;  and  to  what  reme- 
dies they  should  be  subjected  to  enforce  the  proper  discharge  of 
their  duties.  Congress  was  to  determine.  In  the  exercise  of  their 
powers,  they  have  required  collectors  of  customs  to  be  appointed ; 
made  it  incumbent  on  them  to  account,  from  time  to  time,  with 
certain  officers  of  the  Treasury  Department,  and  to  furnish  sureties, 
by  bond,  for  the  payment  of  all  balances  of  the  public  money  wliich 
may  become  due  from  them.  And  by  the  act  of  1820,  now  in  ques- 
tion,  they  have  undertaken  to  provide  summary  means  to  compel 


902  CIVIL    RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

these  officers  —  and  in  case  of  their  default,  their  sureties  —  to  pay 
such  balances  of  the  public  money  as  may  be  in  their  hands. 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  power  into 
effect,  includes  all  known  and  appropriate  means  of  effectually  col- 
lecting and  disbursing  that  revenue,  unless  some  such  mean,  should 
be  forbidden  in  some  other  part  of  the  Constitution.  The  power 
has  not  been  exhausted  by  the  receipt  of  the  money  by  the  collector. 
Its  purpose  is  to  raise  money  and  use  it  in  payment  of  the  debts  of 
the  government;  and,  whoever  may  have  possession  of  the  public 
money,  until  it  is  actually  disbursed,  the  power  to  use  those  known 
and  appropriate  means  to  secure  its  due  application  continues. 

As  we  have  already  shown,  the  means  provided  by  the  act  of  1820 
do  not  differ  in  principle  from  those  employed  in  England  from 
remote  antiquity  —  and  in  many  of  the  States,  so  far  as  we  know 
without  objection  —  for  this  purpose,  at  the  time  the  Constitution 
was  formed.  It  may  be  added,  that  probably  there  are  few  govern- 
ments which  do  or  can  permit  their  claims  for  public  taxes,  either 
on  the  citizen  or  the  officer  employed  for  their  collection  or  dis- 
bursement, to  become  subjects  of  judicial  controversy,  according  to 
the  course  of  the  law  of  the  land.  Imperative  necessity  has  forced 
a  distinction  between  such  claims  and  all  others,  which  has  some- 
times been  carried  out  by  summary  methods  of  proceeding,  and 
sometimes  by  systems  of  fines  and  penalties,  but  always  in  some 
way  observed  and  yielded  to. 

It  is  true  that  in  England  all  these  proceedings  were  had  in  what 
is  denominated  the  Court  of  Exchequer,  in  which  Lord  Coke  says, 
4  Inst.  115,  the  barons  are  the  sovereign  auditors  of  the  kingdom. 
But  the  barons  exercise  in  person  no  judicial  power  in  auditing 
accounts,  and  it  is  necessary  to  remember  that  the  exchequer  in- 
cludes two  distinct  organizations,  one  of  which  has  charge  of  the 
revenues  of  the  crown ,  and  the  other  has  long  been  in  fact,  and  now 
is  for  all  pvirposes,  one  of  the  judicial  courts  of  the  kingdom,  whose 
proceedings  are  and  have  been  as  distinct,  in  most  respects,  from 
those  of  the  revenue  side  of  the  exchequer,  as  the  proceedings  of 
the  Circuit  Court  of  this  district  are  from  those  of  the  treasury; 
and  it  would  be  an  unwarrantable  assumption  to  conclude  that, 
because  the  accounts  of  receivers  of  revenue  were  settled  in  what 
was  denominated  the  Court  of  Exchequer,  they  were  judicial  contro- 
versies between  the  king  and  his  subjects,  according  to  the  ordinary 
course  of  the  common  law  or  equity.  The  fact,  as  we  have  already 
seen,  was  otherwise. 

To  avoid  misconstruction  upon  so  grave  a  subject,  we  think  it 
proper  to  state  that  we  do  not  consider  Congress  can  either  with- 
draw from  judicial  cognizance  any  matter  which,  from  its  nature, 
is  the  subject  of  a  suit  at  the  common  law,  or  in  equity,  or  admi- 


SECT.  IV.  a.]  EX   PARTE   WALL.  903 

ralty;  nor,  on  the  other  hand,  can  it  bring  under  the  judicial  power 
a  matter  which,  from  its  nature,  is  not  a  subject  for  judicial  deter- 
mination. At  the  same  time  there  are  matters  involving  public 
rights,  which  may  be  presented  in  such  form  that  the  judicial  power 
is  capable  of  acting  on  them,  and  which  are  susceptible  of  judicial 
determination,  but  which  Congress  may  or  may  not  bring  within  the 
cognizance  of  the  courts  of  the  United  States,  as  it  may  deem 
proper.  Equitable  claims  to  land  by  the  inhabitants  of  ceded  ter- 
ritories form  a  striking  instance  of  such  a  class  of  cases ;  and  as  it 
depends  upon  the  will  of  Congress  whether  a  remedy  in  the  courts 
shall  be  allowed  at  all,  in  such  cases,  they  may  regulate  it  and 
prescribe  such  rules  of  determination  as  they  may  think  just  and 
needful.  yThus  it  has  been  repeatedly  decided  in  this  class  of  cases 
that  upon  their  trial  the  acts  of  executive  officers,  done  under  the 
authority  of  Congress,  were  conclusive,  either  upon  particular  facts 
involved  in  the  inquiry  or  upon  the  whole  title./  Foley  v.  Harrison, 
15  How.  433;  Burgess  v.  Gray,  16  How.  48;  — ' —  v.  The  Minnesota 
Mining  Company,  at  the  present  term.^ 

[Other  points  suggested  in  argument  are  considered.  The  ques- 
tion certified  by  the  judges  and  set  out  in  the  first  paragraph  of  the 
opinion  is  answered  in  the  affirmative.] 


Ex  PARTK  WALL. 

107  United  States,  265.     1883. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

[On  a  petition  in  this  court  for  an  alternate  writ  of  mayulamvs  to 
the  district  judge  of  the  United  States  for  the  Southern  District  of 
Florida  to  show  cause  why  a  peremptory  writ  should  not  issue  to 
compel  him  to  vacate  an  order  made  by  him  as  such  district  judge 
prohibiting  said  Wall  from  practising  at  the  bar  of  said  court  and 
restore  said  Wall  to  the  rights,  privileges,  and  immunities  of  an 
attorney  and  proctor  thereof,  it  appears  that  Wall  was  disbarred  in 
a  summary  proceeding  in  the  Circuit  Court  of  the  United  States  held 
by  said  district  judge.  This  court,  after  finding  that  the  disbar- 
ment was  on  account  of  unlawful  acts  of  the  attorney  not  in  the  dis- 
charge of  his  duties  but  in  the  presence  of  the  court,  held  that  such 
acts  constituted  a  proper  ground  for  disbarment,  although  said  Wall 
had  not  been  tried  therefor  or  convicted  thereof  in  any  criminal 
proceeding.] 

It  is  contended,  indeed,  that  a  summary  proceeding  against  an 
attorney  to  exclude  him  from  the  practice  of  his  profession  on  ac- 

1  The  case  here  referred  to  is  probably  Cooper  v.  Roberts,  18  How.  173.  See 
Minnesota  Co.  v.  National  Co.,  3  Wall.  332.  —  [Ed.] 


904  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

count  of  acts  for  which  he  may  be  indicted  and  tried  by  a  jury  is  in 
violation  of  the  Fifth  Amendment  of  the  Constitution,  which  forbids 
the  depriving  of  any  person  of  life,  liberty,  or  property  without  due 
process  of  law.  But  the  action  of  the  court  in  cases  within  its  juris- 
diction is  due  process  of  law.  It  is  a  regular  and  lawful  method  of 
proceeding,  practised  from  time  immemorial.  Conceding  that  an 
attorney's  calling  or  profession  is  his  property,  within  the  true  sense 
and  meaning  of  the  Constitution,  it  is  certain  that  in  many  cases,  at 
least,  he  may  be  excluded  from  the  pursuit  of  it  by  the  summary  ac- 
tion of  the  court  of  which  he  is  an  attorney.  The  extent  of  the  juris- 
diction is  a  subject  of  fair  judicial  consideration.  That  it  embraces 
many  cases  in  which  the  offence  is  indictable  is  established  by  an 
overwhelming  weight  of  authority.  This  being  so,  the  question 
whether  a  particular  class  of  cases  of  misconduct  is  within  its  scope, 
cannot  involve  any  constitutional  principle. 

It  is  a  mistaken  idea  that  due  process  of  law  requires  a  plenary 
suit  and  a  trial  by  jury,  in  all  cases  where  property  or  personal 
rights  are  involved.  The  important  right  of  personal  liberty  is  gen- 
erally determined  by  a  single  judge,  on  a  writ  of  habeas  corpus,  using 
aiRdavits  or  depositions  for  proofs,  where  facts  are  to  be  established. 
Assessments  for  damages  and  benefits  occasioned  by  public  improve- 
ments are  usually  made  by  commissioners  in  a  summary  way.  Con- 
flicting claims  of  creditors,  amounting  to  thousands  of  dollars,  are 
often  settled  by  the  courts  on  affidavits  or  depositions  alone.  And 
the  courts  of  chancery,  bankruptcy,  probate,  and  admiralty  adtninis- 
ter  immense  fields  of  jurisdiction  without  trial  by  jury.  In  all  cases 
that  kind  of  procedure  is  due  process  of  law  which  is  suitable  and 
proper  to  the  nature  of  the  case,  and  sanctioned  by  the  established 
customs  and  usages  of  the  courts.  "Perhaps  no  definition,"  says 
Judge  Cooley,  "is  more  often  quoted  than  that  given  by  Mr.  Web- 
ster in  the  Dartmouth  College  case  :  '  By  the  law  of  the  land  is  most 
clearly  intended  the  general  law  —  a  law  which  hears  before  it  con- 
demns; which  proceeds  upon  inquiry,  and  renders  judgment  only 
after  trial.  The  meaning  is  that  every  citizen  shall  hold  his  life, 
liberty,  property,  and  immunities,  under  the  protection  of  the  general 
rules  which  govern  society.'"     Cooley's  Const.  Lini.  353. 

The  question,  what  constitutes  due  process  of  law  within  the  mean- 
ing of  the  Constitution,  was  much  considered  by  this  court  in  David- 
son V.  New  Orleans,  96  U.  S.  97 ;  and  Mr.  Justice  Miller,  speaking 
for  the  court,  said  :  "  It  is  not  possible  to  hold  that  a  party  has, 
without  due  process  of  law,  been  deprived  of  his  property,  when,  as 
regards  the  issues  affecting  it,  he  has,  by  the  laws  of  the  State,  a  fair 
trial  in  a  court  of  justice,  according  to  the  modes  of  proceeding  appli- 
cable to  such  a  case."  And,  referring  to  Murray's  Lessee  v.  Hoboken 
Land  and  Improvement  Co.,  18  How.  272,  he  said  :  "An  exhaustive 
judicial  inquiry  into  the  meaning  of  the  words  'due  process  of  law,' 
as  found  in  the  Fifth  Amendment,  resulted  in  the  unanimous  deci- 


SECT.  IV.  a.]  HURTADO    V.    CALIFORNIA.  905 

sion  of  this  court,  that  tliey  do  not  necessarily  imply  a  regular 
proceeding  in  a  court  of  justice,  or  after  the  manner  of  such 
courts." 

We  have  seen  that,  in  the  present  case,  due  notice  was  given  to 
the  petitioner,  and  a  trial  and  hearing  was  had  before  the  court, 
in  the  manner  in  which  proceedings  against  attorneys,  when  the 
question  is  whether  they  should  be  struck  off  the  roll,  are  always 
conducted. 

We  think  that  the  court  below  did  not  exceed  its  powers  in  taking 
cognizance  of  the  case  in  a  summary  way,  and  that  no  such  irregular- 
ity occurred  in  the  proceeding  as  to  require  this  court  to  interpose 
by  the  writ  of  maiidamus.    The  writ  of  mandamus  is,  therefore, 

lie  fused? 


HURTADO   V.    PEOPLE   OF   CALIFOENIA. 
110  United  States,  516.    1884. 

[Under  the  constitution  and  laws  of  California  a  prisoner  may  be 
tried  on  a  criminal  charge  presented  by  information  ;  indictment  not 
being  required  in  any  case,  although  provision  is  made  for  summon- 
ing a  grand  jury  at  least  once  a  year  in  each  county.  An  examina- 
tion before  a  committing  magistrate  is  provided  for,  and  the  reduction 
of  the  testimony  of  the  witnesses  on  such  examination  to  writing  iu 
the  form  of  depositions.  Hurtado,  having  been  put  on  trial  in  a 
court  of  that  State  for  murder  on  an  information  without  previous 
investigation  by  a  grand  jury,  was  convicted,  and  on  appeal  to  the 
Supreme  Court  of  the  State  the  conviction  was  affirmed.  Defendant 
brought  the  case  to  this  court  by  writ  of  error.] 

Mr.  Justice  jNIattiiews  delivered  the  opinion  of  the  court. 

It  is  claimed  on  behalf  of  the  prisoner  that  the  conviction  and 
sentence  are  void,  on  the  ground  that  they  are  repugnant  to  that 
clause  of  the  Fourteenth  Article  of  Amendment  of  the  Constitution 
of  the  United  States  which  is  in  these  words:  "Nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law." 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indict- 
ment or  presentment  by  a  grand  jury,  as  known  to  the  common  law 
of  England,  is  essential  to  that  "  due  process  of  law,"  when  applied 
to  prosecutions  for  felonies,  which  is  secured  and  guaranteed  by  this 
provision  of  the  Constitution  of  the  United  States,  and  which  accord- 
ingly it  is  forbidden  to  the  States  respectively  to  dispense  with  in 
the  administration  of  criminal  law. 

I  1  Mr.  Justice  Field  delivered  a  dissenting  opinion. 


906  ■  CIVIL    RIGHTS    AND    THEIK    GUARANTIES.         [CHAP.  XIII. 

The  question  is  one  of  grave  and  serious  import,  affecting  both 
private  and  public  rights  and  interests  of  great  magnitude,  and 
involves  a  consideration  of  what  additional  restrictions  upon  the 
legislative  policy  of  the  States  has  been  imposed  by  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States. 

[Cases  in  the  State  courts  are  cited  holding  that  the  provision  as 
to  due  process  of  law  in  the  Fourteenth  Amendment  does  not  require 
an  indictment  by  a  grand  jury  in  a  criminal  case  in  the  State  courts.] 

On  the  other  hand,  it  is  maintained  on  behalf  of  the  plaintiff  in 
error  that  the  phrase  "  due  process  of  law  "  is  equivalent  to  "  law  of 
the  land,"  as  found  in  the  29th  chapter  of  Magna  Charta ;  that  by 
immemorial  usage  it  has  acquired  a  fixed,  definite,  and  technical 
meaning  ;  that  it  refers  to  and  includes,  not  only  the  general  prin- 
ciples of  public  liberty  and  private  right,  which  lie  at  the  foundation 
of  all  free  government,  but  the  very  institutions  which,  venerable  by 
time  and  custom,  have  been  tried  by  experience  and  found  fit  and 
necessary  for  the  preservation  of  those  principles,  and  which,  having 
been  the  birthright  and  inheritance  of  every  English  subject,  crossed 
the  Atlantic  with  the  colonists  and  were  transplanted  and  established 
in  the  fundamental  laws  of  the  State ;  that,  having  been  originally 
introduced  into  the  Constitution  of  the  United  States  as  a  limitation 
upon  the  powers  of  the  government,  brought  into  being  by  that 
instrument,  it  has  now  been  added  as  an  additional  security  to  the 
individual  against  oppression  by  the  States  themselves;  that  one  of 
these  institutions  is  that  of  the  grand  jury,  an  indictment  of  present- 
ment by  which  against  the  accused  in  cases  of  alleged  felonies  is  an 
essential  part  of  due  process  of  law,  in  order  that  he  may  not  be 
harassed  or  destroyed  by  prosecutions  founded  only  upon  private 
malice  or  popular  fury. 

This  view  is  certainly  supported  by  the  authority  of  the  great 
name  of  Chief  Justice  Shaw  and  of  the  court  in  which  he  presided, 
which,  in  Jones  v.  Bobbins,  8  Gray,  329,  decided  that  the  12th  article 
of  the  Bill  of  Rights  of  Massachusetts,  a  transcript  of  Magna  Charta 
in  this  respect,  made  an  indictment  or  presentment  of  a  grand  jury 
essential  to  the  validity  of  a  conviction  in  cases  of  prosecutions  for 
felonies.  In  delivering  the  opinion  of  the  court  in  that  case,  Mer- 
rick, J.,  alone  dissenting,  the  Chief  Justice  said :  — 

"The  right  of  individual  citizens  to  be  secure  from  an  open  and 
public  accusation  of  crime,  and  from  the  trouble,  expense,  and 
anxiety  of  a  public  trial  before  a  probable  cause  is  established  by 
the  presentment  and  indictment  of  a  grand  jury,  in  case  of  high 
offences,  is  justly  regarded  as  one  of  of  the  securities  to  the  innocent 
against  hasty,  malicious,  and  oppressive  public  prosecutions,  and 
as  one  of  the  ancient  immunitips  and  privileges  of  English  liberty." 
...  "It  having  been  stated,"  he  continued,  "by  Lord  Coke,  that 
by  the  '  law  of  the  land  '  was  intended  a  due  course  of  ])roceeding 
according  to  the  established  rules  and  practice  of  the  courts  of  com- 


SECT.  IV.  a.]  HUKTADO    V.    CALIFORNIA.  907 

mon  law,  it  may,  perhaps,  be  suggested  that  this  might  include  other 
modes  of  proceeding  sanctioned  by  the  common  law,  the  most  famil- 
iar of  which  are,  by  informations  of  various  kinds,  by  the  officers  of 
the  crown  in  the  name  of  the  King.  But,  in  reply  to  this,  it  may  be 
said  that  Lord  Coke  himself  explains  his  own  meaning  by  saying 
'  the  law  of  the  land,'  as  expressed  in  Magna  Charta,  was  intended 
due  process  of  law,  that  is,  by  indictment  or  presentment  of  good  and 
lawful  men.  And  further,  it  is  stated,  on  the  authority  of  Black- 
stone,  that  informations  of  every  kind  are  confined  by  the  constitu- 
tional law  to  misdemeanors  only.     4  Bl.  Com.  310." 

Referring  again  to  the  passage  from  Lord  Coke,  he  says,  p.  343 : 
''This  may  not  be  conclusive,  but,  being  a  construction  adopted 
by  a  writer  of  high  authority  before  the  emigration  of  our  ancestors, 
it  has  a  tendency  to  show  how  it  was  then  understood." 

This  passage  from  Coke  seems  to  be  the  chief  foundation  of  the 
opinion  for  which  it  is  cited  ;  but  a  critical  examination  and  compar- 
ison of  the  text  and  context  will  show  that  it  has  been  misunder- 
stood ;  that  it  was  not  intended  to  assert  that  an  indictment  or 
presentment  of  a  grand  jury  was  essential  to  the  idea  of  due  process 
of  law  in  the  prosecution  and  punishment  of  crimes,  but  was  only 
mentioned  as  an  example  and  illustration  of  due  process  of  law  as  it 
actually  existed  iu  cases  in  which  it  was  customarily  used.  lu 
beginning  his  commentary  on  this  chapter  of  Magna  Charta,  2  lust. 
46,  Coke  says  :  — 

"  This  chapter  containeth  nine  several  branches  :  — 

"1.  That  no  man  be  taken  or  imprisoned  but  per  legem  terrain  that 
is,  by  the  common  law,  statute  law,  or  custom  of  England ;  for  the 
words  pe>'  legem  terrce,  being  towards  the  end  of  this  cliapter,  doe 
referre  to  all  the  precedent  matters  in  the  chapter,  &c. 

''2.  No  man  shall  be  disseised,  &c.,  unless  it  be  by  the  lawful 
judgment,  that  is,  verdict  of  his  equals  (that  is,  of  men  of  his  own 
condition),  or  by  the  law  of  the  land  (that  is,  to  speak  it  once  fov  all), 
hj  the  due  course  and.  process  of  law.' ^ 

He  then  proceeds  to  state  that,  3,  no  man  shall  be  outlawed,  unless 
according  to  the  law  of  the  land  ;  4,  no  man  shall  be  exiled,  unless 
according  to  the  law  of  the  land  ;  5,  no  man  shall  be  in  any  sort 
destroyed,  "  unlesse  it  be  by  the  verdict  of  his  equals,  or  according 
to  the  law  of  the  land ;  "  6,  "  no  man  shall  be  condemned  at  the 
King's  suite,  either  before  the  King  in  his  bench,  where  the  pleas  are 
coram,  rege  (and  so  are  the  words  vee  super  eum,  ihimus  to  be  under- 
stood), nor  before  any  other  commissioner  or  judge  whatsoever,  and 
so  are  the  words  nee  siqjer  eum  mittemus  to  be  understood,  but  by 
the  judgment  of  his  })eers,  that  is,  equals,  or  according  to  the  law  of 
the  land." 

Recurring  to  the  first  clause  of  the  chapter,  he  continues  :  — 

"  1.  No  man  shall  be  taken  (that  is)  restrained  of  liberty  by  jie- 
tition  or  suggestion  to  the  King  or  to  his  couucill,  unless  it  be  by 


908  CIVIL    IIIGHTS    AND    THEIR    GUAKANTIES.         [CHAP.  XIII. 

indi.ctment  or  presentment  of  good  and  lawfull  men,  where  such 
deeds  be  done.  This  bi-anch  and  divers  other  parts  of  this  act  have 
been  notably  explained  by  divers  acts  of  Parliament,  &c.,  quoted  in 
the  margeut." 

The  reference  is  to  various  acts  during  the  reign  of  Edward  III. 
And  reacliing  again  the  words  "  nisiper  legem-  terrce,^^  he  continues  :  — 

"  But  by  the  law  of  the  land.  For  the  true  sense  and  exposition 
of  these  words  see  the  statute  of  ol  E.  3,  cap.  8,  where  the  words, 
'by  the  law  of  the  land,'  are  rendered,  without  due  proces  of  the  law, 
for  there  it  is  said,  though  it  be  contained  in  the  Great  Charter, 
that  no  man  be  taken,  imprisoned,  or  put  out  of  his  freehold  without 
proces  of  the  law,  that  is,  by  indictment  of  good  and  lawfull  men, 
where  such  deeds  be  done  in  due  manner,  or  by  writ  originall  of 
the  common  law.  Without  being  brought  in  to  answere  but  by  due 
proces  of  the  common  law.  No  man  be  put  to  answer  without  pre- 
sentment before  justices,  or  thing  of  record,  or  by  due  proces,  or 
by  writ  originall,  according  to  the  old  law  of  the  land.  Wherein  it 
is  to  be  observed  that  this  chapter  is  but  declaratory  of  the  old  law 
of  England." 

It  is  quite  apparent  from  these  extracts  that  the  interpretation 
usually  put  upon  Lord  Coke's  statement  is  too  large,  because  if  an 
indictment  or  presentment  by  a  grand  jury  is  essential  to  due  pro- 
cess of  law  in  all  cases  of  imprisonment  for  crime,  it  applies  not 
only  to  felonies  but  to  misdemeanors  and  petty  offences,  and  the 
conclusion  would  be  inevitable  that  informations  as  a  substitute  for 
indictments  would  be  illegal  in  all  cases.  It  was  indeed  so  argued 
by  Sir  Francis  Winninton  in  Prynu's  Case,  5  Mod,  459,  from  this 
very  language  of  Magna  Charta,  that  all  suits  of  the  King  must  be 
by  presentment  or  indictment,  and  he  cited  Lord  Coke  as  author- 
ity to  that  effect.  He  attempted  to  show  that  informations  had 
their  origin  in  the  act  of  11  Hen.  VII.  c.  3,  enacted  in  1494,  known  as 
the  infamous  Empson  and  Dudley  act,  which  was  repealed  by  that 
of  1  Hen.  VIII.  c.  6,  in  1509.  But  the  argument  was  overruled,  Lord 
Holt  saying  that  to  hold  otherwise  "  would  be  a  reflection  on  the 
whole  bar."  Sir  Bartholomew  Shower,  who  was  prevented  from 
arguing  in  support  of  the  information,  prints  his  intended  argument 
in  his  report  of  the  case  under  the  name  of  The  King  v.  Berchet, 
1  Show.  lOG,  in  which,  with  great  thoroughness,  he  arrays  all  the 
learning  of  the  time  on  the  subject.  He  undertakes  to  ''evince  that 
this  method  of  prosecution  is  noways  contrariant  to  any  funda- 
mental rule  of  law,  but  agreeable  to  it."  He  answers  the  objection 
that  it  is  inconvenient  and  vexatious  to  the  subject  by  saying 
(p.    117):- 

"  Here  is  no  inconvenience  to  the  people.  Here  is  a  trial  per  pais, 
fair  notice,  liberty  of  pleading  ffilafories  as  well  as  />ons.  Here  is 
subpcena  and  affachment,  as  much  time  for  defence,  charge,  &c..  for 
the  prosecutor  makes  up  the  record,  &c. ;  then,  in  case  of  malicious 


SECT.  IV.  a.]  HURTADO    V.    CALIFORNIA.  909 

prosecution,  the  person  who  prosecutes  is  known  by  the  note  to  the 
coroner,  according  to  the  practice  of  the  court." 

He  answers  the  argument  drawn  from  Magna  Charta,  and  says 
"  that  this  method  of  prosecution  no  way  contradicts  that  law,  for 
we  say  this  is  ^^er  legem  ternv  et  per  communeni  legem  terixe,  for 
otherwise  there  never  had  been  so  universal  a  practice  of  it  in  all 
ages." 

And  referring  to  Coke's  comment,  that  "no  man  shall  be  taken," 
L  e.,  restrained  of  liberty  by  petition  or  suggestion  to  the  King  or 
his  Council  unless  it  be  by  indictment  or  presentment,  he  says 
(p.  122) :  "  By  petition  or  suggestion  can  never  be  meant  of  the 
King's  Bench,  for  he  himself  had  preferred  several  here;  that  is 
meant  only  of  the  King  alone,  or  in  Council,  or  in  the  Star  Chamber. 
In  the  King's  Bench  the  information  is  not  a  suggestion  to  the 
King,  but  to  the  court  upon  record." 

And  he  quotes  3  Inst.  136,  where  Coke  modifies  the  statement  by 
saying,  "  The  King  cannot  put  any  to  answer,  but  his  court  must  be 
apprized  of  the  crime  by  indictment,  presentment,  or  other  matter  of 
record,^'  which.  Shower  says,  includes  an  information. 

So  it  has  been  recently  held  that  upon  a  coroner's  inquisition 
taken  concerning  the  death  of  a  man,  and  a  verdict  of  guilty  of 
murder  or  manslaughter  is  returned,  the  offender  may  be  prosecuted 
and  tried  without  the  intervention  of  a  grand  jury.  Reg.  v.  Ingham, 
5  B.  &  S.  257.  And  it  was  said  by  Buller,  J.,  in  Rex  v.  Joliffe, 
4  T.  R,  285-293,  that  if  to  an  action  for  slander  in  charging  the  plain- 
tiff with  felony  a  justification  is  pleaded  which  is  found  by  the  jury, 
that  of  itself  amounts  to  an  indictment,  as  if  it  had  been  found  by 
the  grand  jury,  and  is  sufficient  to  put  the  party  thus  accused  on  his 
trial. 

The  language  of  Lord  Coke  applies  only  to  forfeitures  of  life  and 
liberty  at  the  suit  of  the  King,  and  hence  appeals  of  murder,  which 
were  prosecutions  by  private  persons,  were  never  regarded  as  con- 
trary to  Magna  Charta.  On  the  contrary,  the  appeal  of  death  was 
by  Lord  Holt  "  esteemed  a  noble  remedy  and  a  badge  of  the  rights 
and  liberties  of  an  Englishman."  Rex  v.  Toler,  1  Ld.  Raym. 
557;  12  Mod.  375;  Holt,  483.  We  are  told  that  in  the  early  part 
of  the  last  century,  in  England,  persons  who  had  been  acquitted 
on  indictments  for  murder  were  often  tried,  convicted,  and  executed 
on  appeals.  Kendall  on  Trial  by  Battel  (3d  ed.),  44-47.  An 
appeal  of  murder  was  brought  in  England  as  lately  as  1817,  but 
defeated  by  the  ai)pellant's  declining  to  accept  the  wager  of  battel. 
Ashford  v.  Thornton,  1  B.  &  Aid.  405.  The  English  statutes  con- 
cerning appeals  of  murder  were  in  force  in  the  provinces  of  Penn- 
sylvania and  Maryland.  Report  of  Judges,  3  Binn.  599-604;  Kitty, 
Maryl.  Stat.  141,  143,  158.  It  is  said  that  no  such  appeal  was 
ever  brought  in  Pennsylvania;  but  in  Maryland,  in  1765,  a  negro 
was  convicted  and  executed  upon  such  an  appeal.     Soper  v.   Tom, 


910  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XITI. 

1  Har.  &  McHen.  227.     See  note  to  Paxton's  Case,  Quincy's  Mass. 
Kep.  53,  by  Mr.  Justice  Gray. 

Tliis  view  of  the  meaning  of  Lord  Coke  is  the  one  taken  by 
Merrick,  J.,  in  his  dissenting  opinion  in  Jones  v.  Bobbins,  8  Gray, 
329,  who  states  his  conclusions  in  these  words :  — 

"  It  is  the  forensic  trial,  under  a  broad  and  general  law,  operating 
equally  upon  every  member  of  our  community,  which  the  words, 
'  by  the  law  of  the  land,'  in  Magna  Charta,  and  in  every  subsequent 
declaration  of  rights  which  has  borrowed  its  phraseology,  make 
essential  to  the  safety  of  the  citizen,  securing  thereby  both  his  lib- 
erty and  his  property,  by  preventing  the  unlawful  arrest  of  his 
person  or  any  unlawful  interference  with  his  estate."  See  also  State 
V.  Starling,  15  Rich.  (S.  C.)  Law,  120. 

l\[r.  Reeve,  in  2  History  of  Eng.  Law,  43,  translates  the  phrase, 
nisi  jyer  legale  juclicinni  jxirium  siiorum,  v  el  per  legevi  terrce,  "But  by 
the  judgment  of  his  peers,  or  by  some  other  legal  process  or  proceed- 
ing adapted  by  law  to  the  nature  of  the  case." 

Chancellor  Kent,  2  Com.  13,  adopts  this  mode  of  construing  the 
phrase.  Quoting  the  language  of  Magna  Charta,  and  referring  to 
Lord  Coke's  comment  upon  it,  he  says  :  "  The  better  and  larger  defi- 
nition of  due  process  of  laiv  is  that  it  means  law  in  its  regular  course 
of  administration  through  courts  of  justice." 

This  accords  with  what  is  said  in  Westervelt  v.  Gregg,  12  N.  Y. 
202,  by  Denio,  J.,  p.  212 :  "  The  provision  was  designed  to  protect 
the  citizen  against  all  mere  acts  of  power,  whether  flowing  from 
the  legislative  or  executive  branches  of  the  government." 

The  principal  and  true  meaning  of  the  phrase  has  never  been 
more  tersely  or  accurately  stated  than  by  Mr.  Justice  Johnson,  in 
Bank  of  Columbian.  Okely,  4  Wheat.  235-244:  "As  to  the  words 
from  Afagna  Charta,  incorporated  into  the  constitution  of  IMaryland, 
after  volumes  spoken  and  written  with  a  view  to  their  exposition, 
the  good  sense  of  mankind  has  at  last  settled  down  to  this :  that 
they  were  intended  to  secure  the  individual  from  the  arbitrary  exer- 
cise of  the  powers  of  government,  unrestrained  by  the  established 
principles  of  private  right  and  distributive  justice." 

And  the  conclusion  rightly  deduced  is,  as  stated  by  Mr.  Cooley, 
Constitutional  Limitations,  356:  "The  principles,  then,  upon  which 
the  process  is  based,  are  to  determine  whether  it  is  'due  process' 
or  not,  and  not  any  considerations  of  mere  form.  Administrative 
and  remedial  process  may  be  changed  from  time  to  time,  but  only 
with  due  regard  to  the  landmarks  established  for  the  protection  of 
the  citizen." 

It  is  urged  upon  us,  however,  in  argument,  that  the  claim  made  in 
behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  of  this 
court  in  ^lurray's  Lessee  v.  Hoboken  Land  &  Improvement  Com- 
pany, 18  How.  272.  There  Mr.  Justice  Curtis,  delivering  the 
opinion  of  the  court,  after  showing,  p.  276,  that  due  process  of  law 


SECT    IV.  a.]  HURTADO    V.    CALIFORNIA.  911 

must  mean  something  more  than  the  actual  existing  law  of  the  land, 
for  otherwise  it  would  be  no  restraint  upon  legislative  power,  pro- 
ceeds as  follows  :  — 

•'To  what  principle,  then,  are  we  to  resort  to  ascertain  whether 
this  process,  enacted  by  Congress,  is  due  process  ?  To  this  the 
answer  must  be  twofold.  We  must  exainine  the  Constitution  itself 
to  see  whether  this  process  be  in  conflict  with  any  of  its  provisions. 
If  not  found  to  be  so,  we  must  look  to  those  settled  usages  and 
modes  of  proceeding  existing  in  the  common  and  statute  law  of 
England  before  the  emigration  of  our  ancestors,  and  which  are 
shown  not  to  have  been  unsuited  to  their  civil  and  political  condition 
by  having  been  acted  on  by  them  after  the  settlement  of  this 
country." 

This,  it  is  argued,  furnishes  an  indispensable  test  of  what  consti- 
tutes "due  process  of  law;"  that  any  proceeding  otherwise  au- 
thorized by  law,  which  is  not  thus  sanctioned  by  usage,  or  which 
supersedes  and  displaces  one  that  is,  cannot  be  regarded  as  due 
process  of  law. 

But  this  inference  is  unwarranted.  The  real  syllabus  of  the  pas- 
sage quoted  is,  that(a  process  of  law,  which  is  not  otherwise  for- 
bidden, must  be  taken  to  be  due  process  of  law,  if  it  can  show  the 
sanction  of  settled  usage  both  in  England  and  in  this  country  ;  but 
it  by  no  means  follows  that  nothing  else  can  be  due  process  of  law.\ 
The  point  in  the  case  cited  arose  in  reference  to  a  summary  proceed- 
ing, questioned  on  that  account,  as  not  due  process  of  law.  The 
answer  was :  however  exceptional  it  may  be,  as  tested  by  definitions 
and  principles  of  ordinary  procedure,  nevertheless,  this,  in  substance, 
has  been  immemorially  the  actual  law  of  the  land,  and,  therefore, 
is  due  process  of  law.  But  to  hold  that  such  a  characteristic  is 
essential  to  due  process  of  law,  would  be  to  deny  every  quality  of 
the  law  but  its  age,  and  to  render  it  incapable  of  progress  or 
improvement.  It  would  be  to  stamp  upon  our  jurisprudence  the 
unchangeableness  attributed  to  the  laws  of  the  Medes  and  Persians. 

This  would  be  all  the  more  singular  and  surprising,  in  this  quick 
and  active  age,  when  we  consider  that,  owing  to  the  progressive 
development  of  legal  ideas  and  institutions  in  England,  the  words  of 
Magna  Charta  stood  for  very  different  things  at  the  time  of  the  sep- 
aration of  the  American  colonies  from  what  they  represented  origi- 
nally. For  at  first  the  words  nisi  per  Jefjnle  judicium  poriuni  had  no 
reference  to  a  jury;  they  applied  only  to  the  ^^rn-es  regni,  who  were 
the  constitutional  judges  in  the  Court  of  Exchequer  and  coram  rege. 
Bac.  Abr.  Juries,  7th  ed.,  Lond.,  note  Reeve,  H.  L.  41.  And  as  to 
the  grand  jury  itself,  we  learn  of  its  constitution  and  functions  from 
the  Assize  of  Clarendon,  a.  d.  11G4,  and  that  of  Xorthampton,  A.  d. 
1176,  Stubbs'  Charters,  143-150.  By  the  latter  of  these,  which  was 
a  republication  of  the  former,  it  was  provided,  that  "  if  any  one  is 
accused  before  the  justices  of  our  Lord  the  King  of  murder,  or  theftj 


912  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP,  XIII. 

or  rol'bery,  or  of  harboring  persons  committing  those  crimes,  or  of 
forgery  or  arson,  by  the  oath  of  twelve  knights  of  the  hundred,  or, 
if  there  are  no  knights,  by  the  oath  of  twelve  free  and  lawful  men, 
and  by  the  oath  of  four  men  from  each  township  of  the  hundred,  let 
him  go  to  the  ordeal  of  water,  and,  if  he  fails,  let  him  lose  one  foot. 
And  at  Northampton  it  was  added,  for  greater  strictness  of  justice 
(pro  rigore  justitice) ,  that  he  shall  lose  his  right  hand  at  the  same 
time  with  his  foot,  and  abjure  the  realm  and  exile  himself  from  the 
realm  within  forty  days.  And  if  he  is  acquitted  by  the  ordeal,  let 
him  find  pledges  and  remain  in  the  kingdom,  unless  he  is  accused  of 
murder  or  other  base  felony  by  the  body  of  the  country  and  the  law- 
ful knights  of  the  country  ;  but  if  he  is  so  accused  as  aforesaid, 
although  he  is  acquitted  by  the  ordeal  of  water,  nevertheless  he  must 
leave  the  kingdom  in  forty  days  and  take  his  chattels  with  him, 
subject  to  the  rights  of  his  lords,  and  he  must  abjure  the  kingdom 
at  the  mercy  of  our  Lord  the  King." 

"  The  system  thus  established,"  says  Mr.  Justice  Stephen,  1  Hist. 
Crim.  Law  of  England,  252,  "  is  simple.  The  body  of  the  country 
are  the  accusers.  Their  accusation  is  practically  equivalent  to  a 
conviction,  subject  to  the  chance  of  a  favorable  termination  of  the 
ordeal  by  water.  If  the  ordeal  fails,  the  accused  person  loses  his 
foot  and  his  hand.  If  it  succeeds,  he  is  nevertheless  to  be  banished. 
Accusation,  therefore,  was  equivalent  to  banishment,  at  least." 

When  we  add  to  this  that  the  primitive  grand  jury  heard  no  wit- 
nesses in  support  of  the  truth  of  the  charges  to  be  preferred,  but 
presented  upon  their  own  knowledge,  or  indicted  upon  common  fame 
and  general  suspicion,  we  shall  be  ready  to  acknowledge  that  it  is 
better  not  to  go  too  far  back  into  antiquity  for  the  best  securities 
for  our  "  ancient  liberties."  It  is  more  consonant  to  the  true  phil- 
osophy of  our  historical  legal  institutions  to  say  that  the  spirit  of 
personal  liberty  and  individual  right,  which  they  embodied,  was 
preserved  and  developed  by  a  progressive  growth  and  wise  adapta- 
tion to  new  circumstances  and  situations  of  the  forms  and  processes 
found  fit  to  give,  from  time  to  time,  new  expression  and  greater 
effect  to  modern  ideas  of  self-government. 

This  flexibility  and  capacity  for  growth  and  adaptation  is  the 
peculiar  boast  and  excellence  of  the  common  law.  Sir  James  Mack- 
intosh ascribes  this  principle  of  development  to  Magna  Charta  itself. 
To  use  his  own  language :  — 

"It  was  a  peculiar  advantage  that  the  consequences  of  its  prin- 
ciples were,  if  we  may  so  speak,  only  discovered  slowly  and  gradu- 
ally. It  gave  out  on  each  occasion  only  so  much  of  the  spirit  of 
liberty  and  reformation  as  the  circumstances  of  succeeding  genera- 
tions required  and  as  their  character  would  safely  bear.  For  almost 
five  centuries  it  was  appealed  to  as  the  decisive  authority  on  behalf 
of  the  people,  though  commonly  so  far  only  as  the  necessities  of  each 
case  demanded."     1  Hist,  of  England,  221. 


SECT.  IV.  a.]  HURTADO    V.    CALIFORNIA.  913 

The  Constitution  of  the  United  States  was  ordained,  it  is  true,  by 
descendants  of  Englishmen,  who  inherited  the  traditions  of  English 
law  and  history  ;  but  it  was  made  for  an  undefined  and  expanding 
future,  and  for  a  people  gathered  and  to  be  gathered  from  many 
nations  and  of  many  tongues.  Ami  while  we  take  just  pride  in  the 
principles  and  institutions  of  the  common  law,  we  are  not  to  forget 
that  in  lauds  where  other  systems  of  jurisprudence  prevail,  the  ideas 
and  processes  of  civil  justice  are  also  not  unkuown.  Due  process  of 
law,  in  spite  of  the  absolutism  of  continental  governments,  is  not 
alien  to  that  code  which  survived  the  Roman  Empire  as  the  foun- 
dation of  modern  civilization  in  Europe,  and  which  has  given  us 
that  fundamental  maxim  of  distributive  justice, — suum  cuique  tri- 
buere.  There  is  nothing  in  Magna  Charta,  rightly  construed  as  a 
broad  charter  of  public  right  and  law,  which  ought  to  exclude  the 
best  ideas  of  all  systems  and  of  every  age  ;  and  as  it  was  the  char- 
acteristic principle  of  the  common  law  to  draw  its  inspiration  from 
every  fountain  of  justice,  we  are  not  to  assume  that  the  sources  of  its 
supply  have  been  exhausted.  On  the  contrary,  we  should  expect  that 
the  new  and  various  experiences  of  our  own  situation  and  system 
will  mould  and  shape  it  into  new  and  not  less  useful  forms. 

Tha  concessions  of  Magna  Charta  were  wrung  from  the  King  as 
guaranties  against  the  oppressions  and  usurpations  of  his  prerogative. 
It  did  not  enter  into  the  minds  of  the  barons  to  provide  security 
against  their  own  body  or  in  favor  of  the  Commons  by  limiting  the 
power  of  Parliament;  so  that  bills  of  attainder,  ex  post /acta  laws, 
laws  declaring  forfeitures  of  estates,  and  other  arbitrary  acts  of 
legislation  which  occur  so  frequently  in  English  history,  were  never 
regarded  as  inconsistent  with  the  law  of  the  land  ;  for  notwithstand- 
ing what  was  attributed  to  Lord  Coke  in  Bonham's  Case,  8  Rep.  115, 
118  a,  the  omnipotence  of  Parliament  over  the  common  law  was 
absolute,  even  against  common  right  and  reason.  The  actual  and 
practical  security  for  English  liberty  against  legislative  tyranny  was 
the  power  of  a  free  public  opinion  represented  by  the  Commons. 

In  this  country  written  constitutions  were  deemed  essential  to 
protect  the  rights  and  liberties  of  the  people  against  the  encroach- 
ments of  power  delegated  to  their  governments,  and  the  provisions 
of  Magna  Charta  were  incorporated  into  Pills  of  Rights.  They  were 
limitations  upon  all  the  powers  of  government,  legislative  as  well  as 
executive  and  judicial. 

It  necessarily  happened,  therefore,  that  as  these  broad  and  general 
xiiaxims  of  liberty  and  justice  held  in  our  system  a  different  place  and 
performed  a  different  function  from  their  position  and  office  in  Eng- 
lish constitutional  history  and  law,  they  would  receive  and  justify  a 
corresponding  and  more  comprehensive  interpretation.  Applied  in 
England  only  as  guards  against  executive  usurpation  and  tyranny, 
here  they  have  become  bulwarks  also  against  arbitrary  legislation  ; 
but,  in  that  application,  as  it  would  be  incongruous  to  measure  and 

58 


914  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

restrict  them  by  the  ancient  customary  English  law,  they  must  be 
held  to  guarantee  not  particular  forms  of  procedure,  but  the  very 
substance  of  individual  rights  to  life,  liberty,  and  property. 

Restraints  that  could  be  fastened  upon  executive  authority  with 
precision  and  detail,  might  prove  obstructive  and  injurious  when 
imposed  on  the  just  and  necessary  discretion  of  legislative  power  ; 
and,  while  in  every  instance,  laws  that  violated  express  and  specific 
injunctions  and  prohibitions,  might,  without  embarrassment,  be 
judicially  declared  to  be  void,  yet,  any  general  principle  or  maxim, 
founded  on  the  essential  nature  of  law,  as  a  just  and  reasonable 
expression  of  the  public  will  and  of  government,  as  instituted  by 
popular  consent  and  for  the  general  good,  can  only  be  applied  to 
cases  coming  clearly  within  the  scope  of  its  spirit  and  purpose,  and 
not  to  legislative  provisions  merely  establishing  forms  and  modes  of 
attainment.  Such  regulations,  to  adopt  a  sentence  of  Burke's,  "  may 
alter  the  mode  and  application  but  have  no  power  over  the  substance 
of  original  justice."  Tract  on  the  Popery  Laws,  6  Burke's  Works, 
ed.  Little  &  Brown,  323. 

Such  is  the  often-repeated  doctrine  of  this  court.  In  Munn  v. 
Illinois,  94  U.  S.  113-134,  the  Chief  Justice,  delivering  the  opinion 
of  the  court,  said  :  — 

"  A  person  has  no  property,  no  vested  interest,  in  any  rule  of  the 
common  law.  That  is  only  one  of  the  forms  of  municipal  law,  and 
is  no  more  sacred  than  any  other.  Eights  of  property  which  have 
been  created  by  the  common  law  cannot  be  taken  away  without  due 
process  ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be  changed  at 
the  will  or  even  at  the  whim  of  the  legislature,  unless  prevented  by 
constitutional  limitations.  Indeed,  the  great  office  of  statutes  is  to 
remedy  defects  in  the  common  law  as  they  are  developed,  and  to 
adapt  it  to  the  changes  of  time  and  circumstances." 

And  in  Walker  v.  Savinet,  92  U.  S.  90,  the  court  said:  — 

"  A  trial  b}'  jury  in  suits  at  common  law  pending  in  State  courts 
is  not,  therefore,  a  privilege  or  immunity  of  national  citizenship 
which  the  States  are  forbidden  by  the  Fourteenth  Amendment  to 
abridge.  A  State  cannot  deprive  a  person  of  his  property  without 
due  process  of  law ;  but  this  does  not  necessarily  imply  that  all  trials 
in  the  State  courts  affecting  the  property  of  persons  must  be  by  jury. 
This  requirement  of  the  Constitution  is  met  if  the  trial  is  had  accord- 
ing to  the  settled  course  of  judicial  proceedings.  Due  process  of  law- 
is  process  according  to  the  law  of  the  land.  This  process  in  the 
States  is  regulated  by  the  law  of  State." 

In  Kennard  v.  Louisiana  ex  rel.  Morgan,  92  U.  S.  480,  the  ques- 
tion was  whether  a  mode  of  trying  the  title  to  an  office,  in  which  was 
no  provision  for  a  jury,  was  due  process  of  law.  Its  validity  was 
affirmed.  Tlie  Chief  Justice,  after  reciting  the  various  steps  in  the 
proceeding,  said :  — 

"From  this  it  appears  that  ample  provision  has  been  made  for  the 


SECT.  IV.  a.]  HURTADO    V.   CALIFORNIA.  915 

trial  of  the  contestation  before  a  court  of  competent  jurisdiction  ;  for 
bringing  the  party  against  whom  tlie  j)rocee(Iing  is  had  before  tlie 
court  and  notifying  hiiu  of  the  case  he  is  required,  to  meet;  for  giving 
him  an  opportunity  to  be  heard  in  his  defence  ;  for  the  deliberation 
and  judgment  of  the  court ;  for  an  appeal  from  this  judgment  to  the 
liighest  court  of  the  State,  and  for  hearing  and  judgment  there.  A 
mere  statement  of  the  facts  carries  with  it  a  complete  answer  to  all 
the  constitutional  objections  urged  against  the  validity  of  the  act." 

And  j\Ir.  Justice  Miller,  in  Davidson  v.  New  Orleans,  9G  U.  S. 
97-105,  after  showing  the  difficulty,  if  not  the  impossibility  of  fram- 
ing a  deiinition  of  this  constitutional  phrase,  which  should  be  "  at 
once  perspicuous,  comprehensive,  and  satisfactory,"  and  thence  de- 
ducing the  wisdom  •'  in  tlie  ascertaining  of  the  intent  and  applica- 
tion of  such  an  important  phrase  in  the  Federal  Constitution,  by  the 
gradual  process  of  judicial  inclusion  and  exclusion,  as  the  cases  pre- 
sented for  decision  shall  require,"  says,  however,  that/ "It  is  not 
possible  to  hold  tliat  a  party  has,  without  due  process  oi  law,  been 
deprived  of  his  property,  when,  as  regards  the  issues  affecting  it,  he 
has  by  the  laws  of  the  State  a  fair  trial  in  a  court  of  justice,  accord- 
ing to  the  modes  of  proceeding  applicable  to  such  a  case."y  See 
also  Missouri  v.  Lewis,  101  U.  S.  22-31 ;  Bx  imrte  Wall,  107  U.  S. 
288-290. 

We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment  by 
the  usus  loiuend'i  of  tlie  Constitution  itself.  The  same  words  are 
contained  in  the  Fifth  Amendment.  That  article  makes  specific  and 
express  provision  for  perpetuating  the  institution  of  the  grand  jury, 
so  far  as  relates  to  prosecutions  for  the  more  aggravated  crimes 
under  the  laws  of  the  United  States.  It  declares  that  '•  No  person 
shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand,  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in 
actual  service  in  time  of  war  or  public  danger  ;  nor  shall  any  person 
be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of  life 
or  limb;  nor  shall  he  be  compelled,  in  any  criminal  case  to  be  wit- 
ness against  himself."  It  then  immediately  adds:  "Nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially 
application  to  formal  and  solemn  instruments  of  constitutional  law, 
we  are  forbidden  to  assume,  without  clear  reason  to  the  contrary, 
that  any  part  of  this  most  important  amendment  is  superfluous.  The 
natural  and  obvious  inference  is,  that  in  the  sense  of  the  Constitu- 
tion "due  process  of  law"  was  not  meant  or  intended  to  include, 
ex  vi  termini,  the  institution  and  procedure  of  a  grand  jury  in  any 
case.  The  conclusion  is  equally  irresistible,  that  when  the  same 
phrase  was  employed  in  the  Fourteenth  Amendment  to  restrain  the 
action  of  the  States,  it  was  used  in  the  same  sense  and  with  no 
greater  extent ;  and  that  if  in  the  adoption  of  that  amendment  it  had 


91G  CIVIL   RIGHTS    AND   THEIR   GUARANTIES.         [CHAP.  XIII, 

been  part  of  its  pxirpose  to  perpetuate  the  institution  of  the  grand 
jury  in  all  the  States,  it  would  have  embodied,  as  did  the  Fifth 
Amendment,  express  declarations  to  that  effect.  Due  process  of  law 
in  the  latter  refers  to  that  law  of  the  laud  which  derives  its  authority 
from  the  legislative  powers  conferred  upon  Congress  by  the  Consti- 
tution of  the  United  States,  exercised  within  the  limits  therein  pre- 
scribed, and  interpreted  according  to  the  principles  of  the  common 
law.  In  the  Fourteenth  Amendment,  by  parity  of  reason,  it  refers 
to  that  law  of  the  land  in  each  State,  which  derives  its  authority 
from  the  inherent  and  reserved  powers  of  the  State,  exerted  within 
the  limits  of  those  fundamental  principles  of  liberty  and  justice 
which  lie  at  the  base  of  all  our  civil  and  political  institutions,  and 
the  greatest  security  for  which  resides  in  the  right  of  the  people  to 
make  their  own  laws,  and  alter  them  at  their  pleasure. 

"The  Fourteenth  Amendment,"  as  was  said  by  Mv.  Justice 
Bradley  in  Missouri  v.  Lewis,  101  U.  S.  22-31,  "  does  not  profess 
to  secure  to  all  persons  in  the  United  States  the  benefit  of  the  same 
laws  and  the  same  remedies.  Great  diversities  in  these  respects 
may  exist  in  two  States  separated  only  by  an  imaginary  line.  On 
one  side  of  this  line  there  may  be  a  right  of  trial  by  jury,  and  on 
the  other  side  no  such  right.  Each  State  prescribes  its  own  modes 
of  judicial  proceeding." 

But  it  is  not  to  be  supposed  that  these  legislative  powers  are  abso- 
lute and  despotic,  and  that  the  amendment  prescribing  due  process 
of  law  is  too  vague  and  indefinite  to  operate  as  a  practical  restraint. 
It  is  not  every  act,  legislative  in  form,  that  is  law.  f  Law  is  some- 
thing more  than  mere  will  exerted  as  an  act  of  power.  It  must  be 
not  a  special  rule  for  a  particular  person  or  a  particular  case,  but,  in 
the  language  of  Mr.  Webster,  in  his  familiar  definition,  "  the  general 
law,  a  law  which  hears  before  it  condemns,  which  proceeds  upon 
inquiry,  and  renders  judgment  only  after  trial,"  so  "that  every  cit- 
izen shall  hold  his  life,  liberty,  property,  and  immunities  under  the 
protection  of  the  general  rules  which  govern  society,"!  and  thus 
excluding,  as  not  due  process  of  law,  acts  of  attainder,  bills  of  pains 
and  penalties,  acts  of  confiscation,  acts  reversing  judgments,  and 
acts  directly  transferring  one  man's  estate  to  another,  legislative 
judgments  and  decrees,  and  other  similar  special,  partial  and  arbi- 
trary exertions  of  power  under  the  forms  of  legislation.  Arbitrary 
]-)Ower,  enforcing  its  edicts  to  the  injury  of  the  persons  and  property 
of  its  subjects,  is  not  law,  whether  manifested  as  the  decree  of  a 
personal  monarch  or  of  an  impersonal  multitude.  And  the  limita- 
tions imposed  by  our  constitutional  law  upon  the  action  of  the 
governments,  both  state  and  national,  are  essential  to  the  preserva- 
tion of  public  and  private  rights,  notwithstanding  the  representative 
character  of  our  political  institutions.  The  enforcement  of  these 
limitations  b}'  judicial  process  is  the  device  of  self-governing  com- 
munities to  protect  the  rights  of  individuals  and  minorities,  as  well 


SECT.  IV.  b.]  TICK   WO    V.    HOPKINS.  917 

against  the  power  of  numbers,  as  against  the  violence  of  public 
agents  transcending  the  limits  of  lawful  authority,  even  when  acting 
in  the  name  and  wielding  the  force  of  the  government. 

For  these  reasons,  finding  no  error  therein,  the  judgment  of  the 
Supreme  Court  of  California  is  )  Affirmed} 


b.   Equal  Protection  of  the  Laws. 

YICK   WO   V.    HOPKINS. 
118  United  States,  356.     1886. 

[Plaintiff  in  error  petitioned  the  Supreme  Court  of  California 
for  a  writ  ot  habeas  corpus,  alleging  that  he  was  illegally  deprived 
of  his  personal  liberty  by  defendant  as  sheriff  of  the  city  and  county 
of  Sau  Francisco  by  reason  of  imprisonment  for  non-payment  of  a 
fine  for  violation  of  a  city  ordinance  prescribing  the  kind  of  build- 
ings in  which  laundries  might  be  conducted,  and  making  it  unlawful 
for  any  person  to  establish,  maintain,  or  carry  on  a  laundry  within 
the  corporate  limits  without  having  obtained  first  the  consent  of 
the  board  of  supervisors,  unless  the  same  shall  be  located  in  a 
building  constructed  either  of  brick  or  stone.  It  appeared  that 
petitioner  was  a  native  of  China  and  remained  a  subject  of  that 
empire;  that  he  had  been  engaged  in  the  laundry  business  for  many 
years  prior  to  the  enactment  of  the  ordinance,  and  that  his  premises 
were  unobjectionable  with  reference  to  danger  from  fire  or  danger  to 
the  health  of  the  neighborhood.  It  also  appeared  that  his  applica- 
tion for  license  to  continue  his  laundry  had  been  refused  by  the 
board  of  supervisors,  and  that  he  and  all  other  Chinese  subjects  who 
were  conducting  their  business  in  wooden  houses  were  denied  such 
license,  while  white  persons  conducting  laundries  under  similar 
conditions  were  left  unmolested  and  free  to  enjoy  the  enhanced 
trade  and  profit  arising  from  this  hurtful  and  unfair  discrimination. 
The  Supreme  Court  refused  the  writ,  and  the  case  was  brought  to 
this  court  by  writ  of  error.  Another  case  involving  the  same  ques- 
tions was  brought  by  writ  of  error  from  the  United  States  Circuit 
Court  for  the  District  of  California,  and  was  considered  at  the  same 
time.] 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court. 

We  are  consequently  constrained,  at  the  outset,  to  differ  from 
the  Supreme  Court  of  California  upon  the  real  meaning  of  the  ordi- 
nances in  question.     That  court  considered  these  ordinances  as  vest* 

1  Mr.  Justice  Harlan  delivered  a  dissenting  opinion. 


918  CIVIL   RIGHTS   AND   THEIR  GUARANTIES.        [CHAP.  XIII. 

ing  in  the  board  of  supervisors  a  not  unusual  discretion  in  granting 
or  withholding  their  assent  to  the  use  of  wooden  buildings  as  laun- 
dries, to  be  exercised  in  reference  to  the  circumstances  of  each  case, 
with  a  view  to  the  protection  of  the  public  against  the  dangers  of 
fire.  We  are  not  able  to  concur  in  that  interpretation  of  the  power 
conferred  upon  the  supervisors.  There  is  nothing  in  the  ordinances 
which  points  to  such  a  regulation  of  the  business  of  keeping  and 
conducting  laundries.  They  seem  intended  to  confer,  and  actually 
do  confer,  not  a  discretion  to  be  exercised  upon  a  consideration  of 
the  circumstances  of  each  case,  but  a  naked  and  arbitrary  power  to 
give  or  withhold  consent,  not  only  as  to  places,  but  as  to  persons. 
So  that,  if  an  applicant  for  such  consent,  being  in  every  way  a  com- 
petent and  qualified  person,  and  having  complied  with  every  reason- 
able condition  demanded  by  any  public  interest,  should,  failing  to 
obtain  the  requisite  consent  of  the  supervisors  to  the  prosecution  of 
his  business,  apply  for  redress  by  the  judicial  process  of  vnmdaviusy 
to  require  the  supervisors  to  consider  and  act  upon  his  case,  it  would 
be  a  sufficient  answer  for  them  to  say  that  the  law  had  conferred 
upon  them  authority  to  withhold  their  assent  without  reason  and 
without  responsibility.  The  power  given  to  them  is  not  confided  to 
their  discretion  in  the  legal  sense  of  that  term,  but  is  granted  to 
their  mere  will.  It  is  purely  arbitrary,  and  acknowledges  neither 
guidance  nor  restraint. 

This  erroneous  view  of  the  ordinances  in  question  led  the  Supreme 
Court  of  California  into  the  further  error  of  holding  that  they  were 
justified  by  the  decisions  of  this  court  in  the  cases  of  Barbier  v. 
Connolly,  113  U.  S.  27,  and  Soon  Hing  v.  Crowley,  113  U.  S.  703. 
In  both  of  these  cases  the  ordinance  involved  was  simply  a  prohibi- 
tion to  carry  on  the  washing  and  ironing  of  clothes  in  public  laun- 
dries and  washhouses,  within  certain  prescribed  limits  of  the  city 
and  county  of  San  Francisco,  from  ten  o'clock  at  night  until  six 
o'clock  in  the  morning  of  the  following  day.  This  provision  was 
held  to  be  purely  a  police  regulation,  within  the  competency  of  any 
municipality  possessed  of  the  ordinary  powers  belonging  to  such 
bodies  —  a  necessary  measure  of  precaution  in  a  city  composed 
largely  of  wooden  buildings  like  San  Francisco,  in  the  application 
of  which  there  was  no  invidious  discrimination  against  any  one 
within  the  prescribed  limits,  all  persons  engaged  in  the  same  busi- 
ness being  treated  alike,  and  subject  to  the  same  restrictions,  and 
entitled  to  the  same  privileges,  under  similar  conditions. 

The  ordinance  drawn  in  question  in  the  present  case  is  of  a  very 
different  character.  It  does  not  prescribe  a  rule  and  conditions  for 
the  regulation  of  the  use  of  property  for  laundry  purposes,  to  which 
all  similarly  situated  may  conform.  It  allows  without  restriction 
the  use  for  such  purposes  of  buildings  of  brick  or  stone;  but,  as  to 
wooden  buildings,  constituting  nearly  all  those  in  previous  use,  it 


SECT.  IV.  b.]  TICK    WO    V.    HOPKINS.  919 

divides  the  owners  or  occupiers  into  two  classes,  not  having  respect 
to  their  personal  cliaracter  and  qualifications  for  the  business,  nor 
the  situation  and  nature  and  adaptation  of  the  buildings  themselves, 
but  merely  by  an  arbitrary  line,  on  one  side  of  which  are  those  who 
are  permitted  to  pursue  their  industry  by  the  mere  will  and  consent 
of  the  supervisors,  and  on  the  other  those  from  whom  that  consent 
is  withheld,  at  their  mere  will  and  pleasure.  And  both  classes  are 
alike  only  in  this,  thut  they  are  tenants  at  will  under  the  super- 
visors, of  their  means  of  living.  The  ordinance,  therefore,  also 
differs  from  the  not  unusual  case,  where  discretion  is  lodged  by  law 
in  public  "officers  or  bodies  to  grant  or  withhold  licenses  to  keep 
taverns,  or  places  for  the  sale  of  spirituous  liquors,  and  the  like, 
when  one  of  the  conditions  is  that  the  applicant  shall  be  a  fit  person 
for  the  exercise  of  the  privilege,  because  in  such  cases  the  fact  of 
fitness  is  submitted  to  the  judgment  of  the  officer,  and  calls  for  the 
exercise  of  a  discretion  of  a  judicial  nature. 

The  rights  of  the  petitioners,  as  affected  by  the  proceedings  of 
which  they  complain,  are  not  less,  because  they  are  aliens  and  sub- 
jects of  the  Emperor  of  China.  By  the  third  article  of  the  treaty 
between  this  government  and  that  of  China,  concluded  ISTovember 
17,  1880,  22  Stat.  827,  it  is  stipulated:  "If  Chinese  laborers,  or 
Chinese  of  any  other  class,  now  either  permanently  or  temporarily 
residing  in  the  territory  of  the  United  States,  meet  witli  ill  treat- 
ment at  the  hands  of  any  other  persons,  the  government  of  the 
United  States  will  exert  all  its  powers  to  devise  measures  for  their 
protection,  and  to  secure  to  them  the  same  rights,  privileges,  immu- 
nities, and  exemptions  as  may  be  enjoyed  by  the  citizens  or  subjects 
of  the  most  favored  nation,  and  to  which  they  are  entitled  by 
treaty." 

The  Fourteenth  Amendment  to  the  Constitution  is  not  confined  to 
the  protection  of  citizens.  It  says:  "Nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law; 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws."  These  provisions  are  universal  in  their  application, 
to  all  persons  within  the  territorial  jurisdiction,  without  regard  to 
any  differences  of  race,  of  color,  or  of  nationality;  and  the  equal  pro- 
tection of  the  laws  is  a  pledge  of  the  protection  of  equal  laws.  It 
is  accordingly  enacted  by  section  1977  of  the  Revised  Statutes  that 
"all  persons  within  the  jurisdiction  of  the  United  States  shall  have 
the  same  right  in  every  State  and  Territory  to  make  and  enforce 
contracts,  to  sue,  be  parties,  give  evidence,  and  to  the  full  and  equal 
benefit  of  all  laws  and  proceedings  for  the  security  of  persons  and 
property  as  is  enjoyed  by  white  citizens  and  shall  be  subject  to  like 
punishment,  pains,  penalties,  taxes,  licenses,  and  exactions  of  every 
kind,  and  to  no  other."  The  questions  we  have  to  consider  and 
decide  in  these  cases,  therefore,  are  to  be  treated  as  involving  the 
rights  of  every  citizen  of  the  United  States  equally  with  those  oi 


920  CIVIL   RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII 

the  strangers  and  aliens  who  now  invoke  the  jurisdiction  of  the 
court. 

It  is  contended  on  the  part  of  the  petitioners  that  the  ordinances 
for  violations  of  which  they  are  severally  sentenced  to  imprison- 
ment are  void  on  their  face,  as  being  within  the  prohibitions  of 
the  Fourteenth  Amendment;  and,  in  the  alternative,  if  not  so,  that 
they  are  void  by  reason  of  their  administration,  operating  unequally, 
so  as  to  punish  in  the  present  petitioners  what  is  permitted  to  others 
as  lawful,  without  any  distinction  of  circumstances  —  an  unjust  and 
illegal  discrimination,  it  is  claimed,  which,  though  not  made  ex- 
pressly by  the  ordinances,  is  made  possible  by  them. 

When  we  consider  the  nature  and  the  theory  of  our  institutions 
of  government,  the  principles  upon  which  they  are  supposed  to  rest, 
and  review  the  history  of  their  development,  we  are  constrained  to 
conclude  that  they  do  not  mean  to  leave  room  for  the  play  and  action 
of  purely  personal  and  arbitrary  power.  Sovereignty  itself  is,  of 
course,  not  subject  to  law,  for  it  is  the  author  and  source  of  law; 
but  in  our  system,  while  sovereign  powers  are  delegated  to  the 
agencies  of  government,  sovereignty  itself  remains  with  the  people, 
by  whom  and  for  whom  all  government  exists  and  acts.  And  the 
law  is  the  definition  and  limitation  of  power.  It  is,  indeed,  quite 
true,  that  there  must  always  be  lodged  somewhere,  and  in  some 
person  or  body,  the  authority  of  final  decision;  and  in  many  cases  of 
mere  administration  the  responsibility  is  purely  political,  no  appeal 
lying  except  to  the  ultimate  tribunal  of  the  public  judgment,  exer- 
cised either  in  the  pressure  of  opinion  or  by  means  of  the  suffrage. 
But  the  fundamental  rights  to  life,  liberty,  and  the  pursuit  of  hap- 
piness, considered  as  individual  possessions,  are  secured  by  those 
maxims  of  constitutional  law  which  are  the  monuments  showing 
the  victorious  progress  of  the  race  in  securing  to  men  the  blessings 
of  civilization  under  the  reign  of  just  and  equal  laws,  so  that,  in  the 
famous  language  of  the  Massachusetts  Bill  of  Rights,  the  govern- 
ment of  the  Commonwealth  "may  be  a  government  of  laws  and  not 
of  men."  For  the  very  idea  that  one  man  may  be  compelled  to 
hold  his  life,  or  the  means  of  living,  or  any  material  right  essential 
to  the  enjoyment  of  life,  at  the  mere  will  of  another,  seems  to  be 
intolerable  in  any  country  where  freedom  prevails,  as  being  the 
essence  of  slavery  itself. 

In  the  present  cases  we  are  not  obliged  to  reason  from  the  prob- 
able to  the  actual,  and  pass  upon  the  validity  of  the  ordinances  com- 
plained of,  as  tried  merely  by  the  opportunities  which  their  terms 
afford,  of  unequal  and  unjust  discrimination  in  their  administra- 
tion. For  the  cases  present  the  ordinances  in  actual  operation,  and 
the  facts  shown  establish  an  administration  directed  so  exclusively 
against  a  particular  class  of  persons  as  to  warrant  and  require  the 
conclusion,  that,  whatever  may  have  been  the  intent  of  the  ordi- 


SECT.  IV.  b.]  TICK   WO    V.    HOPKINS.  921 

nances  as  adopted,  they  are  applied  by  the  public  authorities  charged 
with  their  administration,  and  thus  representing  the  State  itself, 
with  a  mind  so  unequal  and  oppressive  as  to  amount  to  a  practical 
denial  by  the  State  of  that  equal  protection  of  the  laws  which  is 
secured  to  the  petitioners,  as  to  all  other  persons,  by  the  broad  and 
benign  provisions  of  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States.  Though  the  law  itself  be  fair  on  its  face  and 
impartial  in  appearance,  yet,  if  it  is  applied  and  administered  by 
public  authority  with  an  evil  eye  and  an  unequal  hand,  so  as  prac- 
tically to  make  unjust  and  illegal  discriminations  between  persons 
in  similar  circumstances,  material  to  their  rights,  the  denial  of 
equal  justice  is  still  within  the  prohibition  of  the  Constitution. 
This  principle  of  interpretation  has  been  sanctioned  by  this  court  in 
Henderson  v.  Mayor  of  New  York,  92  U.  S.  259;  Chy  Lung  v.  Free- 
man, 92  U.  S.  275;  Ex  parte  Virginia,  100  U.  S.  339;  Neal  v. 
Delaware,  103  U.  S.  370;  and  Soon  Hing  v.  Crowley,  113  U.  S.  703. 
The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record, 
are  within  this  class.  It  appears  that  both  petitioners  have  com- 
plied with  every  requisite,  deemed  by  the  law  or  by  the  public 
officers  charged  with  its  administration,  necessary  for  the  protection 
of  neighboring  property  from  fire,  or  as  a  precaution  against  injury 
to  the  public  health.  No  reason  whatever,  except  the  will  of  the 
supervisors,  is  assigned  why  they  should  not  be  permitted  to  carry 
on,  in  the  accustomed  manner,  their  harmless  and  useful  occupation, 
on  which  they  depend  for  a  livelihood.  And  while  this  consent  of 
the  supervisors  is  withheld  from  them  and  from  two  hundred  others 
who  have  also  petitioned,  all  of  whom  happen  to  be  Chinese  subjects, 
eighty  others,  not  Chinese  subjects,  are  permitted  to  carry  on  the 
same  busines;*  under  similar  conditions.  The  fact  of  this  discrim- 
ination is  admitted.  No  reason  for  it  is  shown,  and  the  conclusion 
cannot  be  resisted,  that  no  reason  for  it  exists  except  hostility  to 
the  race  and  nationality  to  which  the  petitioners  belong,  and  which 
in  the  eye  of  the  law  is  not  justified.  The  discrimination  is,  there- 
fore, illegal,  and  the  public  administration  which  enforces  it  is  a 
denial,  of  the  equal  protection  of  the  laws  and  a  violation  of  the 
Fourteenth  Amendment  of  the  Constitution.  The  imprisonment  of 
the  petitioners  is,  therefore,  illegal,  and  they  must  be  discharged. 
To  this  end, 

The  judgment  of  the  Supreme  Court  of  California  in  the  case  of 
Yick  Wo,  and  that  of  the  Circnit  Court  of  the  United  States 
for  the  District  of  California  in  the  case  of  Wo  Lee,  are  sever- 
ally reversed,  and  the  cases  remanded,  each  to  the  proper  court, 
with  directions  to  discharge  the  petitioners  from  custody  and 
imprisonment.^ 

1  As  to  the  validity  of  regulations  of  the  laundry  business,  see  Barbier  i;.  Connolly, 
113  U.  S.  27,  infra,  p.  925. 

In  Soon  IIing  v.  Crowley,  113  U.  S.  703  (1885),  the  validity  of  certain  laundry 


922  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

ordinances  of  San  Francisco  was  also  involved,  and  Mr.  Justice  Field,  delivering 
the  opinion  of  the  court,  used  the  following  language :  — 

"  1  liere  is  no  force  in  the  objection  that  an  unwarrantable  discrimination  is  made 
against  persons  engaged  in  tlie  laundry  business,  because  persons  in  otiier  kintls  of 
business  are  not  required  to  cease  from  their  labors  during  the  same  hours  at  night. 
There  may  be  no  risks  attending  the  iiusiness  of  others,  certainly  not  as  great  as 
where  fires  are  constantly  required  to  carry  them  on.  The  specific  regulations  for 
one  kind  of  business,  which  may  be  necessary  for  the  protection  of  the  pulilic,  can 
never  be  the  just  ground  of  complaint  because  like  restrictions  are  not  imposed  upon 
otlier  business  of  a  different  kind.  The  discriminations  which  are  open  to  objection 
are  those  where  persons  engaged  in  tlie  same  business  are  subjected  to  different  re- 
strictions, or  are  held  entitled  to  different  privileges  under  the  same  conditions.  It  is 
only  then  that  the  discrimination  can  be  said  to  impair  that  equal  right  wliich  all  can 
claim  in  the  enforcement  of  the  laws. 

"  But  counsel  in  the  court  below  not  only  objected  to  the  fourth  section  of  the  ordi- 
nance as  discriminating  between  those  engaged  in  tlie  laundry  business,  and  those  en- 
gaged in  other  business,  but  also  as  discriminating  between  different  classes  engaged 
in  the  laundry  business  itself.  This  latter  ground  of  objection  becomes  intelligible 
only  by  reference  to  his  brief,  in  which  we  are  informed  that  the  laundry  business, 
besides  the  washing  and  ironing  of  clothes,  involves  the  fluting,  polishing,  blueing, 
and  wringing  of  them ;  and  that  these  are  all  different  branches,  requiring  sepa- 
rate and  skilled  workmen,  who  are  not  prohibited  from  working  during  the  hour.s 
of  night.  This  fluting,  polishing,  blueing,  and  wringing  of  clothes,  it  seems  to 
us,  are  incidents  of  the  general  business,  and  are  embraced  within  its  prohibition. 
But  if  not  incidents,  and  they  are  outside  of  the  jjrohibition,  it  is  because  there  is  not 
the  danger  from  them  that  would  arise  from  the  continuous  fires  required  in  washing; 
and  it  is  not  dicritninating  legislation  in  any  invidious  sense  that  branches  of  the  same 
business  from  which  danger  is  apprehended  are  prohibited  during  certain  hours  of  the 
night,  whilst  otlier  branches  involving  no  such  danger  are  permitted." 

In  Gulf,  Colorado,  &  Santa  Fe  Railway  Company  v.  Ellis,  16,5  U.  S.  150 
(1897),  the  constitutionality  of  a  statute  of  Texas  authorizing  the  recovery  of  attor- 
neys' fees  in  addition  to  damages  in  actions  against  railway  companies  for  the  killing 
of  stock  was  questioned,  on  the  ground  that  it  operated  to  deprive  tlie  railway  com- 
panies of  property  without  due  process  of  law,  and  denied  to  them  the  equal  protec- 
tion of  the  law  in  that  it  singled  them  out  of  all  citizens  and  corporations,  and  re(iuired 
them  to  pay  in  certain  cases  attorneys'  fees  to  the  parties  successfully  suing  them, 
while  it  gave  to  them  no  like  or  corresponding  benefit.  The  constitutionality  of  the 
statute  being  sustained  in  the  State  courts,  the  case  was  brought  to  this  court  on  writ 
of  error.  Mr.  Justice  Brewkr,  delivering  the  opinion  of  the  court  (Mr.  Justice 
Gray,  Mr.  Chief  Justice  Fuller,  and  Mr.  Justice  White  dissenting),  held  that 
the  provision  was  not  a  legitimate  police  regulation  for  the  purpose  of  inducing  the 
railway  companies  to  fence  their  tracks,  and  thus  prevent  injuries  to  stock,  for  there 
was  no  requirement  in  the  State  that  tracks  of  railways  should  be  fenced.  Continu- 
ing, he  used  this  language  :  — 

"  But  a  mere  statute  to  compel  the  payment  of  indebtedness  does  not  come  within 
the  scope  of  police  regulations  The  hazardous  business  of  railroading  carries  with  it 
no  special  necessity  for  the  prompt  payment  of  debts.  That  is  a  duty  resting  upon 
all  debtors,  and  while  in  certain  cases  there  may  be  a  peculiar  obligation  which  may 
be  enforced  by  penalties,  yet  nothing  of  that  kind  springs  from  the  mere  work  of  rail- 
road transportation.  Statutes  have  been  sustained  giving  special  protection  to  the 
claims  of  laborers  and  mechanics,  but  no  such  idea  underlies  this  legislation.  It  does 
not  aim  to  protect  the  laborer  or  the  mechanic  alone,  for  its  benefits  are  conferred 
upon  every  individual  in  the  State,  rich  or  poor,  high  or  low,  who  has  a  claim  of  the 
character  described.  It  is  not  a  statute  for  the  protection  of  particular  classes  of  indi- 
viduals supposed  to  need  protection,  but  for  the  punishment  of  certain  corporations  on 
account  of  their  delinquency. 

"  Neither  can  it  be  sustained  as  a  proper  means  of  enforcing  tlie  p.ayment  of  small 
debts  and  preventing  any  unnecessary  litigation  in  respect  to  them,  because  it  does 


SECT.  IV.  b.]       PEMBINA   MINING   CO.    V.    PENNSYLVANIA.  923 

not  impose  the  penalty  iu  all  cases  where  the  amount  in  controversy  is  within  the  limit 
named  in  the  statute.  Indeed,  the  statute  arhitrarily  singles  out  one  class  of  debtors 
and  punishes  it  for  a  failure  to  perform  certain  duties  —  duties  which  are  eijually  ob- 
ligatory upon  all  debtors ;  a  punishment  not  visited  by  reason  of  the  failure  to  conii)ly 
with  any  proper  police  regulations,  or  for  tlie  protection  of  the  laboring  classes  or  to 
prevent  litigation  about  trilling  matters,  or  in  conse([uence  of  any  special  corporate 
privileges  bestowed  by  the  State.  Unless  the  legishiture  may  arbitrarily  select  one 
corporation  or  one  class  of  corporations,  one  individual  or  one  class  of  individuals,  and 
visit  a  penalty  upon  them  which  is  not  imposed  upon  others  guilty  of  like  deliuqueucy, 
this  statute  cannot  be  sustained. 

"  But  arbitrary  selection  can  never  be  justified  by  calling  it  classification.  The 
equal  protection  demanded  by  the  Fourteenth  Amendment  forbids  tiiis." 

The  decision  of  the  Supreme  Court  of  Texas  is  therefore  reversed. 

In  Hayes  v.  Missouri,  120  U.  S.  68  (18S7),  the  validity  of  a  State  statute  was 
called  in  question,  which  provided  that  in  ca|)ital  cases  in  cities  having  a  population 
of  over  one  hundred  thousand  inhabitants,  the  State  shall  be  allowed  fifteen  peremp- 
tory challenges  to  jurors,  while  elsewhere  in  the  same  State  the  prosecution  is  allowed 
in  such  cases  only  eight  peremptory  challenges,  the  claim  being  that  by  virtue  of 
such  statute,  the  accused,  who  w.as  being  prosecuted  for  murder  in  a  city  of  over  one 
hundred  thousand  inhabitunrs,  was  denied  the  equal  protection  of  the  laws.  Mr.  Jus- 
tice Field,  delivering  the  ojjinion  of  the'court,  used  this  language:  — 

"The  Fourteenth  Amendment  to  the  Constitution  of  the  United  States  does  not 
prohibit  legislation  which  is  limited  either  in  the  objects  to  which  it  is  directed,  or  by 
the  territory  within  which  it  is  to  operate.  It  merely  rerjuires  that  all  persons  sub- 
jected to  such  legislation  shall  be  treated  alike,  under  like  circumstances  and  condi- 
tions, both  in  the  privileges  conferred  and  iu  the  liabilities  imposed.  As  we  saiti  in 
Barbier  v.  Connolly,  speaking  of  the  Fourteenth  Amendment:  '  Class  legislation,  dis- 
criminating against  some  and  favoring  others,  is  prohibited ;  but  legislation  which,  in 
carrying  out  a  public  purpose,  is  limited  in  its  application,  if  within  the  sphere  of  its 
operation  it  affects  alike  all  persons  similarly  situated,  is  not  within  the  amendment.' 
113U.S   27,32. 

"In  Missouri  v.  Lewis,  101  U.  S.  22,  it  w.as  held,  that  the  last  cl.ause  of  the  amend- 
ment as  to  the  equal  protection  of  the  laws,  was  not  violated  l)y  any  diversity  in  the 
jurisdiction  of  the  several  courts  which  the  State  might  establish,  as  to  subject- 
matter,  amount,  or  finality  of  their  decisions,  if  all  persons  within  tlie  territorial  limits 
of  their  respective  jurisdictions  have  an  equal  right  in  like  cases,  and  under  like  cir- 
cumstances, to  resort  to  them  for  redress ;  that  the  State  has  the  right  to  make 
political  subdivisions  of  its  territory  for  municipal  purposes,  and  to  regulate  their  local 
government;  and  that,  as  res]iects  the  administration  of  justice,  it  may  establish  one 
system  of  courts  for  cities  and  another  for  rural  districts.  And  we  may  add,  that  the 
systems  of  procedure  in  them  may  be  different  without  violating  any  provision  of  the 
Fourteenth  Amendment. 

"  Allowing  the  State  fifteen  peremptory  challenges  in  capital  cases,  tried  in  cities 
containing  a  population  of  over  one  hundred  thousand  inhabitants,  is  simply  providing 
agninst  the  difficulty  of  securing,  in  such  cases,  an  impartial  jury  in  cities  of  that  size 
which  does  not  exist  in  otlier  portions  of  the  State.  So  far  from  defeating,  it  may 
furnish  the  nece.s.sary  means  of  giving  that  e<iual  protection  of  its  laws  to  all  per.sous, 
which  that  amendment  declares  shall  not  be  denied  to  any  one  within  its  jurisdiction. 

"  We  see  nothing  in  the  legislation  of  Missouri  which  is  repugnant  to  that 
amendment." 

In  PEMniNA  Mining  Company  v.  Pennsylvania,  125  V.  S.  181  (1888),  a  State 
statute  imposing  a  licensee  fee  on  corporations  organized  under  the  laws  of  another 
State,  which  should  have  an  office  within  the  limits  of  the  State,  was  held  not  to  be 
invalid  as  denying  to  such  foreign  corporations  the  equal  ])roteciion  of  the  laws.  Mr, 
JfiSTiCE  Field,  delivering  the  opinion  of  the  court,  used  this  language:  — 

"The  application  of  the  Fourteenth  Amendment  of  the  Constitution  to  the  statute 
imposing  the  license  tax  in  question  is  not  more  apparent  than  tlie  application  of  the 
clause  of  the  Constitution  to  the  rights  of  citizens  of  one  State  to  the  privileges  and 


924  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.         [CHAP.  XIII. 

immunities  of  citizens  in  other  States.  The  inhibition  of  the  amendment  that  no 
State  shall  deprive  anv  person  within  its  jurisdiction  of  the  e(]ual  protection  of  the 
laws  was  designed  to  prevent  any  person  or  class  of  persons  from  being  singled  out  as 
a  special  subject  for  discriminating  and  hostile  legislation.  Under  the  designation  of 
'person'  there  is  no  doubt  that  a  private  corporation  is  included.  Such  corporations 
are  merely  associations  of  individuals  united  for  a  special  purpose,  and  permitted  to 
do  business  under  a  particular  name,  and  have  a  succession  of  members  without  disso- 
lution. As  said  by  Chief  Justice  Marshall,  '  The  great  object  of  a  corporation  is  to 
bestow  the  character  and  properties  of  individuality  on  a  collective  and  changing  body 
of  men.'  Providence  Bank  v.  Billings,  4  Pet.  514,  562.  The  equal  protection  of  the 
laws  which  these  bodies  may  claim  is  only  such  as  is  accorded  to  similar  associations 
within  the  jurisdiction  of  the  State.  The  plaintiff  in  error  is  not  a  corporation  within 
the  jurisdiction  of  Pennsylvania.  The  office  it  hires  is  within  such  jurisdiction,  and 
on  condition  that  it  pays  the  required  license  ta.x,  it  can  claim  the  same  protection  in 
the  use  of  the  office  that  any  other  corporation  having  a  similar  office  may  claim.  It 
would  then  have  the  equal  protection  of  the  law  so  far  as  it  had  anything  within  the 
jurisdiction  of  the  State,  and  the  constitutional  amendment  requires  nothing  more. 
The  State  is  not  prohibited  from  discriminating  in  the  privileges  it  may  grant  to  for- 
eign corporations  as  a  condition  of  their  doing  business  or  hiring  offices  within  its 
limits,  provided  always  such  discrimination  does  not  interfere  with  any  transaction  by 
such  corporations  of  interstate  or  foreign  conmierce.  It  is  not  every  corporation,  law- 
ful in  the  State  of  its  creation,  that  other  States  may  be  willing  to  admit  within  tlieir 
jurisdiction  or  consent  that  it  have  offices  in  them ;  such,  for  example,  as  a  corpora- 
tion for  lotteries.  And  even  where  the  business  of  a  foreign  corporation  is  not  unlaw- 
ful in  otlier  States  the  latter  may  wish  to  limit  the  number  of  such  corporations,  or  to 
subject  their  business  to  such  control  as  would  be  in  accordance  with  the  policy  gov- 
erning domestic  corporations  of  a  similar  character.  The  States  may,  therefore, 
require  for  the  admission  within  their  limits  of  the  corporations  of  other  States,  or  of 
any  number  of  them,  such  conditions  as  they  may  choose,  without  acting  in  conflict 
•with  the  concluding  provision  of  the  first  section  of  the  Fourteenth  Amendment.  As 
to  the  meaning  and  extent  of  that  section  of  the  amendment,  see  Barbier  v.  Connolly, 
113  U.  S.  27;  Soon  Hing  i;.  Crowley,  113  U.  S.  703;  Missouri  v.  Lewis,  101  U.  S.  22, 
30;  Missouri  Pacific  Railway  Co.  v.  Kumes,  115  U.  S.  512;  Yick  Wo  v.  Hopkins,  118 
U.S.  356 ;  Hayes  i--.  Missouri,  120  U.  S.  68. 

"  The  onlv  limitation  upon  this  power  of  the  State  to  exclude  a  foreign  corporation 
from  doing  "business  within  its  limits,  or  hiring  offices  for  that  purpose,  or  to  exact 
conditions  for  allowing  the  corporation  to  do  business  or  hire  offices  there,  arises  where 
the  corporation  is  in  the  employ  of  the  Federal  government,  or  where  its  business  is 
strictlv  commerce,  interstate  or  foreign.  The  control  of  such  commerce,  being  in  the 
Federal  government,  is  not  to  be  restricted  by  State  authority." 

In  PIoME  Insitranck  Company  v.  New  York.  134  U.  S.  194  (1890),  it  was  held 
that  a  State  tax  upon  the  corporate  franchise  or  business,  alike  of  domestic  corpora- 
tions and  foreign  corporations  doing  business  in  the  State,  was  not  invalid  as  denying 
to  such  corporations  the  equal  protection  of  the  laws  because  applicable  only  to  cor- 
porations. Mr.  Justice  Field,  in  delivering  the  opinion  of  the  court  (Mr.  Justice 
MiLUER  and  Mr.  Justice  Harlax  dissenting),  used  this  language  :  — 

"Nor  is  the  objection  tenable  that  the  statute,  in  imposing  such  tax,  conflicts  with 
the  last  clause  of  the  first  section  of  the  Fourteenth  Amendment  of  the  Constitution 
of  the  United  States,  declaring  that  no  State  shall  deprive  any  person  within  its  juris- 
diction of  the  equal  protection  of  the  laws.  It  is  conceded  that  corporations  are  '  per- 
sons'  within  the  meaning  of  this  amendment.  It  has  been  so  decided  by  this  court. 
Pembina  Cons.  Silver,  &c.  Co.  r.  Pennsylvania,  125  U.  S.  181.  But  the  amendment  does 
not  prevent  the  classification  of  property  for  taxation  — subjecting  one  kind  of  prop- 
erty to  one  rate  of  taxation,  and  another  kind  of  property  to  a  different  rate  —  distin- 
guishing between  franchises,  licenses  and  privileges,  and  visilde  and  tangilde  property, 
and  between  real  and  personal  property.  Nor  does  the  amendment  prohibit  special 
legislation.  Indeed,  the  greater  part  of  all  legislation  is  special,  either  in  the  extent 
to  which  it  operates,  or  the  objects  sought  to  be  obtained  by  it.     And  when  such  legis- 


SECT.  IV.  U.]  BARBIER    V.    CONNOLLY.  925 


c.    The  Police  Power. 

BARBIER   V.    CONNOLLY. 

113  United  States,  27.     1885. 

On  the  8th  of  April,  1884,  the  board  of  supervisors  of  the  city 
and  county  of  San  Francisco,  the  legislative  authority  of  that 
municipality,  passed  an  ordinance  reciting  that  the  indiscrinunate 
establishment  of  public  laundries  and  wash-houses,  where  clothes 
and  other  articles  were  cleansed  for  hire,  endangered  the  public 
health  and  the  public  safety,  prejudiced  the  well-being  and  comfort 
of  the  community,  and  depreciated  the  value  of  property  in  their 
neighborhood;  and  then  ordaining,  pursuant  to  authority  alleged 
to  be  vested  in  the  board  under  provisions  of  the  State  constitution, 
and  of  the  act  of  April  19,  1856,  consolidating  the  government  of 
the  city  and  county,  that  after  its  passage  it  should  be  unlawful  for 
any  person  to  establish,  maintain,  or  carry  on  the  business  of  a 
public  laundry  or  of  a  public  wash-house  within  certain  designated 
limits  of  the  city  and  county,  without  first  having  obtained  a  cer- 
tificate, signed  by  the  health  officer  of  the  municipality,  that  the 
premises  were  properly  and  sufficiently  drained,  and  that  all  proper 
arrangements  were  made  to  carry  on  the  business  without  injury  to 
the  sanitary  condition  of  the  neighborhood;  also  a  certificate  signed 
by  the  board  of  fire  wardens  of  the  municipality,  that  the  stoves, 
washing  and  drying  apparatus,  and  the  appliances  for  heating 
smoothing-irons,  were  in  good  condition,  and  that  their  use  was  not 
dangerous  to  the  surrounding  property  from  fire,  and  that  all  proper 
precautions  were  taken  to  comply  with  the  provisions  of  the  ordi- 
nance defining  the  fire  limits  of  the  city  and  county,  and  making 
regulations  concerning  the  erection  and  use  of  buildings  therein. 

The  ordinance  requires  the  health  officer  and  board  of  fire 
wardens,  upon  application  of  any  one  to  open  or  conduct  the  busi- 
ness of  a  public  laundry,  to  inspect  the  premises  in  which  it  was 
proposed  to  carry  on  the  business,  in  order  to  ascertain  whether 
they  are  provided  with  proper  drainage  and  sanitary  appliances, 
and  whether  the  provisions  of  the  fire  ordinance  have  been  complied 
with;  and,  if   found   satisfactory  in  all  respects,  to    issue   to   the 

lation  applies  to  artificial  bodies,  it  is  not  open  to  objection  if  all  such  bodies  are  treated 
alike  under  similar  circnmstances  and  conditions,  in  respect  to  the  privileges  conferred 
upon  them  and  the  liabilities  to  which  tliey  are  subjected.  Under  the  statute  of  New- 
York,  all  corporations,  joint-stock  companies,  and  associations  of  the  same  kind  are 
subjected  to  the  same  tax.  There  is  tlie  same  rule  applicable  to  all  under  the  same 
conditions  in  determining  the  rate  of  taxation.  There  is  no  discrimination  in  favor  of 
one  against  another  of  the  same  class.  See  Barbier  v.  Connolly,  113  U.  S.  29,  32; 
Soon  Hing  v.  Crowley,  113  U.  S.  703,  709;  Missouri  Pacific  Railway  v.  Humes,  H5 
U.  S.  512,  523;  Missouri  Pacific  Railway  ;'.  Mackey,  127  U.  S.  205,  209;  Miuneapolia 
Railway  Co.  v.  Beckwith,  129  U.  S.  26,  32." 


92G  CIVIL   RIGHTS    AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

applicant  the  required  certificates  without  charge  for  the  services 
rendered.  Its  fourth  section  declares  that  no  person  owning  or 
employed  in  a  public  laundry  or  a  public  wash-house  within  the 
prescribed  limits  shall  wash  or  iron  clothes  between  the  hours  of  ten 
in  the  evening  and  six  in  the  morning  or  upon  any  portion  of  Sun- 
day; and  its  fifth  section,  that  no  person  engaged  in  the  laundry 
business  within  those  limits  shall  permit  any  one  suffering  from 
an  infectious  or  contagious  disease  to  lodge,  sleep,  or  remain  upon 
the  premises.  The  violation  of  any  of  these  several  provisions  is 
declared  to  be  a  misdemeanor,  and  penalties  are  prescribed  differ- 
ing in  degree  according  to  the  nature  of  the  oifence.  The  estab- 
lishing, maintaining,  or  carrying  on  the  business,  without  obtaining 
the  certificates,  is  punishable  by  fine  of  not  more  than  $1,000,  or 
by  imprisonment  of  not  more  than  six  months,  or  by  both.  Carry- 
ing on  the  business  outside  of  the  hours  prescribed,  or  permitting 
persons  with  contagious  diseases  on  the  premises,  is  punishable 
by  fine  of  not  less  than  $5  or  more  than  $50,  or  by  imprisonment  of 
not  more  than  one  month,  or  by  both  such  fine  and  imprisonment. 

The  petitioner  in  the  court  below,  the  plaintiff  in  error  here,  was 
convicted  in  the  Police  Judge's  Court  of  tlie  City  and  County  of 
San  Francisco,  under  the  fourth  section  of  the  ordinance,  of  washing 
and  ironing  clothes  in  a  public  laundry,  within  the  prescribed  limits, 
between  the  hours  of  ten  o'clock  in  the  evening  of  May  1,  1884,  and 
six  o'clock  in  the  morning  of  the  following  day,  and  was  sentenced 
to  imprisonment  in  the  county  jail  for  five  days,  and  was  accord- 
ingly committed,  in  execution  of  the  sentence,  to  the  custody  of  the 
sheriff  of  the  city  and  county,  who  was  keeper  of  the  county  jail. 
That  court  had  jurisdiction  to  try  him  for  the  alleged  offence,  if  the 
ordinance  was  valid  and  binding.  But,  alleging  that  his  arrest  and 
imprisonment  were  illegal,  he  obtained  from  the  Superior  Court  of 
the  city  and  county  a  writ  of  habeas  corpus,  in  obedience  to  which 
his  body  was  brought  before  the  court  by  the  sheriff,  who  returned 
that  he  was  held  under  the  commitment  of  the  police  judge  upon  a 
conviction  of  a  misdemeanor,  the  commitment  and  sentence  being 
produced. 

The  petitioner  thereupon  moved  for  his  discharge  on  the  ground 
that  the  fourth  section  of  the  ordinance  violates  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  and  certain 
sections  of  the  constitution  of  the  State.  The  particulars  stated  in 
which  such  alleged  violations  consist  were  substantially  these,  — 
omitting  the  repetition  of  the  same  position,  — that  the  section  dis- 
criminates between  the  class  of  laborers  engaged  in  the  laundry 
business  and  those  engaged  in  other  kinds  of  business;  that  it  dis- 
criminates between  laborers  beyond  the  designated  limits  and  those 
within  them;  that  it  deprives  the  petitioner  of  the  right  to  labor, 
and,  as  a  necessary  consequence,  of  the  right  to  acquire  property; 
that  it  is  not  within  the  power  of  the  board  of  supervisors  of  the 


SECT.  IV.  C]  BARBIER   V.    CONNOLLY.  927 

city  and  county  of  San  Francisco;  and  that  it  is  unreasonable  in 
its  requirements.  The  Superior  Court  overruled  the  positions  aud 
dismissed  the  writ,  and  the  petitioner  brought  this  writ  of  error. 

]\Ir.  Justice  Field  delivered  the  opinion  of  the  court.  After 
reciting  the  facts  as  above  stated,  he  continued :  — 

In  this  case  we  can  only  consider  whether  the  fourth  section  of 
the  ordinance  of  the  city  and  county  of  San  Francisco  is  in  contlict 
with  the  Constitution  or  laws  of  the  United  States.  We  cannot 
pass  upon  the  conformity  of  that  section  with  the  requirements  of 
the  constitution  of  the  State.  Our  jurisdiction  is  confined  to  a  con- 
sideration of  the  Federal  question  involved,  which  arises  upon  an 
alleged  conflict  of  the  fourth  section  in  question  with  tlie  first 
section  of  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States.  No  other  part  of  the  amendment  has  any  possible 
application. 

That  fourth  section,  so  far  as  it  is  involved  in  the  case  before  the 
police  judge,  was  simply  a  prohibition  to  carry  on  the  washing  and 
ironing  of  clothes  in  public  laundries  and  wash-houses,  witliin  cer- 
tain prescribed  limits  of  the  city  and  county,  from  ten  o'clock  at 
night  until  six  o'clock  on  the  morning  of  the  following  day.  The 
prohibition  against  labor  on  Sunday  is  not  involved.  The  provision 
is  purely  a  police  regulation  within  the  competency  of  any  munici- 
pality possessed  of  the  ordinary  powers  belonging  to  such  bodies. 
And  it  would  be  an  extraordinary  usurpation  of  the  authority  of  a 
municipality,  if  a  Federal  tribunal  should  undertake  to  supervise 
such  regulations.  It  may  be  a  necessary  measure  of  precaution  in  a 
city  composed  largely  of  wooden  buildings  like  San  Francisco,  that 
occupations  in  which  fires  are  constantly  required  should  cease  after 
certain  hours  at  night  until  the  following  morning;  and  of  the 
necessity  of  such  regulations  the  municipal  bodies  are  the  exclusive 
judges ;  at  least  any  correction  of  their  action  in  such  matters  can 
come  only  from  State  legislation  or  State  tribunals.  The  same 
municipal  authority  which  directs  the  cessation  of  labor  must  neces- 
sarily prescribe  the  limits  within  which  it  shall  be  enforced,  as  it 
does  the  limits  in  a  city  within  which  wooden  buildings  cannot  be 
constructed.  There  is  no  invidious  discrimination  against  any  one 
within  the  prescribed  limits  by  such  regulations.  There  is  none  in 
the  regulation  under  consideration.  The  specification  of  the  limits 
within  which  the  business  cannot  be  carried  on  without  the  certifi- 
cates of  the  health  officer  and  board  of  fire  wardens  is  merely  a 
designation  of  the  portion  of  the  city  in  which  the  precautionary 
measures  against  fire  and  to  secure  proper  drainage  must  he  taken 
for  the  public  health  and  safety.  It  is  not  legislation  discrimi- 
nating against  any  one.  All  persons  engaged  in  the  same  business 
within  it  are  treated  alike;  are  subject  to  the  same  restrictions  and 
are  entiMed  to  the  same  privileges  under  similar  conditions. 

The  Fuurteenth  Amendment,   m   declaring  that  no  State  "shall 


928  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws,"  undoubtedly  intended  not  only  that  there 
should  be  no  arbitrary  deprivation  of  life  or  liberty,  or  arbitrary 
spoliation  of  property,  but  that  equal  protection  and  security  should 
be  given  to  all  under  like  circumstances  in  the  enjoyment  of  their 
personal  and  civil  rights;  that  all  persons  should  be  equally  entitled 
to  pursue  their  happiness  and  acquire  and  enjoy  property;  that  they 
should  have  like  access  to  the  courts  of  the  country  for  the  protec- 
tion of  their  persons  and  property,  the  prevention  and  redress  of 
wrongs,  and  the  enforcement  of  contracts;  that  no  impediment 
should  be  interposed  to  the  pursuits  of  any  one  except  as  applied 
to  the  same  pursuits  by  others  under  like  circumstances;  that  no 
greater  burdens  should  be  laid  upon  one  than  are  laid  upon  others 
in  the  same  calling  and  condition,  and  that  in  the  administration  of 
criminal  justice  no  different  or  higher  punishment  should  be  imposed 
upon  one  than  such  as  is  prescribed  to  all  for  like  offences.  But 
neither  the  amendment  —  broad  and  comprehensive  as  it  is  —  nor 
any  other  amendment  was  designed  to  interfere  with  the  power  of 
the  State,  sometimes  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education,  and  good  order  of 
the  people,  and  to  legislate  so  as  to  increase  the  industries  of  the 
State,  develop  its  resources,  and  add  to  its  wealth  and  prosperity. 
From  the  very  necessities  of  society,  legislation  of  a  special  char- 
acter, having  these  objects  in  view,  must  often  be  had  in  certain 
districts,  such  as  for  draining  marshes  and  irrigating  arid  plains. 
Special  burdens  are  often  necessary  for  general  benefits,  —  for 
supplying  water,  preventing  fires,  lighting  districts,  cleaning  streets, 
opening  parks,  and  many  other  objects.  Regulations  for  these 
purposes  may  press  with  more  or  less  weight  upon  one  than  upon 
another,  but  they  are  designed,  not  to  impose  unequal  or  unneces- 
sary restrictions  upon  any  one,  but  to  promote,  with  as  little  indi- 
vidual inconvenience  as  possible,  the  general  good.  Though,  in 
many  respects,  necessarily  special  in  their  character,  they  do  not 
furnish  just  ground  of  complaint  if  they  operate  alike  upon  all 
persons  and  property  under  the  same  circumstances  and  conditions. 
Class  legislation,  discriminating  against  some  and  favoring  others, 
is  prohibited;  but  legislation  which,  in  carrying  out  a  public  pur- 
pose, is  limited  in  its  application,  if  within  the  sphere  of  its  opera- 
tion it  affects  alike  all  persons  similarly  situated,  is  not  within  the 
amendment. 

In  the  execution  of  admitted  powers  unnecessary  proceedings  are 
often  required  which  are  cumbersome,  dilatory,  and  expensive,  yet, 
if  no  discrimination  against  any  one  be  made  and  no  substantial  right 
be  impaired  by  them,  they  are  not  obnoxious  to  any  constitutional 
objection.  The  inconveniences  arising  in  the  administration  of  the 
laws  from  this  cause  are  matters  entirely  for  the  consideration  of 


SECT.  IV.  c]  HOLDEN   V.    HARDY.  929 

the  State;  they  can  be  remedied  only  by  the  State.  In  the  case 
before  us  the  provisions  requiring  certificates  from  the  health  officer 
and  the  board  of  fire  wardens  may,  in  some  instances,  be  unneces- 
sary, and  the  changes  to  be  made  to  meet  the  conditions  prescribed 
may  be  burdensome ;  but,  as  we  have  said,  this  is  a  matter  for  the 
determination  of  the  municipality  in  the  execution  of  its  police 
powers,  and  not  a  violation  of  any  substantial  right  of  the 
individual.  Judgment  affirmed. 


HOLDEN  V.  HARDY. 
169  United  States,  366.     1898. 

[Plaintiff  in  error  applied  to  the  Supreme  Court  of  the  State  of 
Utah  to  be  discharged  by  habeas  corpus  from  the  custody  of  defend- 
ant as  sheriff  under  conviction  for  violating  a  State  statute,  making 
it  a  misdemeanor  for  any  employer  to  employ  working  men  in  under- 
ground mines  or  in  smelters,  or  other  institutions  for  the  reduction 
or  refining  of  ores  or  metals,  for  more  than  eight  hours  per  day  except 
in  cases  of  emergency  where  life  or  property  is  in  imminent  danger. 
The  validity  of  the  statute  was  challenged  upon  the  ground  of  alleged 
violation  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  in  that  it  abridges  the  privileges  or  immunities  of  citi- 
zens of  the  United  States,  deprives  both  the  employer  and  the  laborer 
of  propert}'  without  due  process  of  law,  and  denies  to  them  the  equal 
protection  of  the  laws.  The  application  of  the  petitioner  was  denied 
and  he  was  remanded  to  the  custody  of  the  sheriff,  whereupon  he 
sued  out  this  writ  of  error  assigning  the  unconstitutionality  of  the 
law.  The  opinion  discusses  the  general  interpretation  of  the  Four- 
teenth Amendment  in  the  light  of  the  cases  of  Barbier  v.  Connolly, 
Soon  Hing  v.  Crowley,  Yick  Wo  v.  Hopkins,  Ex  j)arte  Wall,  Hurtado 
V.  California,  Hayes  v.  Missouri,  which  have  already  been  given,  and 
other  cases  of  the  same  character,  and  then  continues.] 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

The  latest  utterance  of  this  court  upon  this  subject  is  contained  in 
the  case  of  Allgeyer  v.  Louisiana,  165  U.  S.  578,  591,  in  which  it  was 
held  that  an  act  of  Louisiana  which  prohibited  individuals  within  the 
State  from  making  contracts  of  insurance  with  corporations  doing 
business  in  New  York,  was  a  violation  of  the  Fourteenth  Amend- 
ment. In  delivering  the  opinion  of  the  court,  Mr.  Justice  Peckham 
remarked :  <*  In  the  privilege  of  pursuing  an  ordinary  calling  or  trade, 
and  of  acquiring,  holding,  and  selling  property,  must  be  embraced  the 
right  to  make  all  proper  contracts  in  relation  thereto,  and,  although 
it  may  be  conceded  that  this  right  to  contract  in  relation  to  persons 

59 


930  CIVIL  RIGHTS   AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

or  property,  or  to  do  business  within  the  jurisdiction  of  the  State, 
may  be  regulated  and  sometimes  prohibited,  when  the  contracts  or 
business  conilict  with  the  policy  of  the  State  as  contained  in  its 
statutes,  yet  the  power  does  not  and  cannot  extend  to  prohibiting  a 
citizen  from  making  contracts  of  the  nature  involved  in  this  case  out- 
side of  the  limits  and  jurisdiction  of  the  State,  and  which  are  also  to 
be  performed  outside  of  such  jurisdiction." 

This  right  of  contract,  however,  is  itself  subject  to  certain  limita- 
tions which  the  State  may  lawfully  impose  in  the  exercise  of  its  police 
powers.  While  this  power  is  inherent  in  all  governments,  it  has 
doubtless  been  greatly  expanded  in  its  application  during  the  past 
century,  owing  to  an  enormous  increase  in  the  number  of  occupations 
which  are  dangerous,  or  so  far  detrimental  to  the  health  of  employees 
as  to  demand  special  precautions  for  their  well-being  and  protection, 
or  the  safety  of  adjacent  property.  While  this  court  has  held,  nota- 
bly in  the  cases  Davidson  v.  New  Orleans,  96  U.  S.  97,  and  Yick  Wo 
V.  Hopkins,  118  U.  S.  356,  that  the  police  power  cannot  be  put  for- 
ward as  an  excuse  for  oppressive  and  unjust  legislation,  it  may  be 
lawfully  resorted  to  for  the  purpose  of  preserving  the  public  health, 
safety,  or  morals,  or  the  abatement  of  public  nuisances,  and  a  large 
discretion  "  is  necessarily  vested  in  the  legislature  to  determine  not 
only  what  the  interests  of  the  public  require,  but  what  measures  are 
necessary  for  the  protection  of  such  interests,"  Lawton  v.  Steele,  152 
U.  S.  133,  136. 

The  extent  and  limitations  upon  this  power  are  admirably  stated 
by  Chief  Justice  Shaw  in  the  following  extract  from  his  opinion  in 
Commonwealth  v.  Alger,  7  Cush.  53,  84 :  — 

"  We  think  it  is  a  settled  principle,  growing  out  of  the  nature  of  well- 
ordered  civil  society,  that  every  holder  of  property,  however  absolute 
and  unqualified  may  be  his  title,  holds  it  under  the  implied  liability 
that  its  use  may  be  so  regulated  that  it  shall  not  be  injurious  to  the 
equal  enjoyment  of  others  having  an  equal  right  to  the  enjoyment  of 
their  property,  nor  injurious  to  the  rights  of  the  community.  All 
property  in  this  Commonwealth,  as  well  that  in  the  interior  as  that 
bordering  on  tide  waters,  is  derived  directly  or  indirectly  from  the 
government,  and  held  subject  to  those  general  regulations  which  are 
necessary  to  the  common  good  and  general  welfare.  Rights  of  prop- 
ert}-,  like  all  other  social  and  conventional  rights,  are  subject  to  such 
reasonable  limitations  in  their  enjoyment  as  shall  prevent^them  from 
being  injurious,  and  to  such  reasonable  restraints  and  regulations 
established  by  law  as  the  legislature,  under  the  governing  and 
controlling  power  vested  in  them  by  the  Constitution,  may  think 
necessary  and  expedient." 

This  power  legitimately  exercised,  can  neither  be  limited  by  con- 
tract nor  bartered  away  by  legislation. 

"While  this  power  is  necessarily  inherent  in  every  form  of  govern- 
ment, it  was,  prior  to  the  adoption  of  the  Constitution,  but  sparingly 


SECT.  IV.  c]  HOLDEN   V.    HARDY.  931 

used  in  this  country.  As  we  were  then  almost  purely  an  agricultural 
people,  the  occasion  for  any  special  protection  of  a  particular  class 
did  not  exist.  Certain  profitable  employments,  such  as  lotteries  and 
the  sale  of  intoxicating  liquors,  which  were  then  considered  to  be 
legitimate,  have  since  fallen  under  the  ban  of  public  opinion,  and  are 
now  either  altogether  prohibited,  or  made  subject  to  stringent  police 
regulations.  The  power  to  do  this  has  been  repeatedly  affirmed  by 
this  court.  Stone  v.  Mississippi,  101  U.  S.  814;  Douglas  v.  Kentucky, 
168  U.  S.  488  ;  Giozza  v.  Tiernan,  148  U.  S.  657 ;  Kidd  v.  Pearson, 
128  U.  S.  1;-  Crowley  v.  Christensen,  137  U.  S.  86. 

[Various  State  statutes  relating  to  the  regulation  of  the  business 
of  mining,  and  decisions  thereunder,  are  referred  to.] 

But  if  it  be  within  the  power  of  a  legislature  to  adopt  such  means 
for  the  protection  of  the  lives  of  its  citizens,  it  is  difficult  to  see  why 
precautions  may  not  also  be  adopted  for  the  protection  of  their  health 
and  morals.  It  is  as  much  for  the  interest  of  the  State  that  the  pub- 
lic health  should  be  preserved  as  that  life  should  be  made  secure. 
With  this  end  in  view  quarantine  laws  have  been  enacted  in  most  if 
not  all  of  the  States ;  insane  asylums,  public  hospitals,  and  institu- 
tions for  the  care  and  education  of  the  blind  established,  and  special 
raeasilres  taken  for  the  exclusion  of  infected  cattle,  rags,  and  decayed 
fruit.  In  other  States  laws  have  been  enacted  limiting  the  hours 
during  which  women  and  children  shall  be  employed  in  factories  ; 
and  while  their  constitutionality,  at  least  as  applied  to  women,  has 
been  doubted  in  some  of  the  States,  they  have  been  generally  upheld. 
Thus,  in  the  case  of  Commonwealth  v.  Hamilton  Manufacturing  Co., 
120  Mass.  383,  it  was  held  that  a  statute  prohibiting  the  employment 
of  all  persons  under  the  age  of  eighteen,  and  of  all  women  laboring 
in  any  manufacturing  establishment  more  than  sixty  hours  per  week, 
violates  no  contract  of  the  Commonwealth  implied  in  the  granting  of 
a  charter  to  a  manufacturing  company  nor  any  right  reserved  under 
the  Constitution  to  any  individual  citizen,  and  may  be  maintained  as 
a  health  or  police  regulation. 

Upon  the  principles  above  stated,  we  think  the  act  in  question  may 
be  sustained  as  a  valid  exercise  of  the  police  power  of  the  State.  The 
enactment  does  not  profess  to  limit  the  hours  of  all  workmen,  but 
merely  those  who  are  employed  in  underground  mines,  or  in  the 
smelting,  reduction,  or  refining  of  ores  or  metals.  These  employ- 
ments, when  too  long  pursued,  the  legislature  has  judged  to  be  detri- 
mental to  the  health  of  the  employees,  and,  so  long  as  there  are 
reasonable  grounds  for  believing  that  this  is  so,  its  decision  upon  this 
subject  cannot  be  reviewed  by  the  Federal  courts. 

While  the  general  experience  of  mankind  may  justify  us  in  believ- 
ing that  men  may  engage  in  ordinary  employments  more  than  eight 
hours  per  day  without  injury  to  their  health,  it  does  not  follow  that 
labor  for  the  same  length  of  time  is  innocuous  when  carried  on  be- 
neath the  surface  of  the  earth,  where  the  operative  is  deprived  of 


932  CIVIL   RIGHTS    AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

fresh  air  and  sunlight,  and  is  frequently  subjected  to  foul  atmosphere 
and  a  very  high  temperature,  or  to  the  influence  of  noxious  gases, 
generated  by  the  processes  of  refining  or  smelting. 

We  are  of  opinion  that  the  act  in  question  was  a  valid  exercise  of 
the  police  power  of  the  State,  and  the  judgments  of  the  Supreme 
Court  of  Utah  are,  therefore,  Affirmed} 

1  Mr.  Justice  Brewer  and  Mr.  Justice  Peckham  dissented. 

In  People  v.  Havnor,  149  N.  Y.  195  (1896),  the  validity  of  a  statute  regulating 
barbering  on  Sunday,  and  providing  that  any  person  who  engages  in  that  business  on 
that  day  shall  be  guilty  of  a  misdemeanor,  with  the  exception  that  in  the  city  of  New 
York  and  the  village  of  Saratoga  Springs  barber  shops  may  be  kept  open,  and  the 
work  of  a  barber  may  be  performed  therein,  until  one  o'clock  of  the  afternoon  of  San- 
day,  was  questioned  on  the  ground  that  it  was  in  violation  of  tlie  provisions  of  the 
State  constitution  of  New  York,  tliat  "No  person  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law,"  and  also  the  provisions  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States  and  the  court  held  the  statute 
to  be  constitutional.  Vann,  J.,  delivering  the  opinion  of  the  court  (Gray,  Bartlett, 
and  Haight,  JJ.,  dissenting),  used  this  language:  — 

"  It  is  to  the  interest  of  the  State  to  have  strong,  robust,  healthy  citizens,  capable 
of  self-support,  of  bearing  arms,  and  of  adding  to  the  resources  of  the  country.  Laws 
to  effect  this  purpose,  by  protecting  the  citizen  from  overwork  and  requiring  a  general 
day  of  rest  to  restore  his  strength  and  preserve  his  health,  have  an  obvious  connection 
with  the  public  welfare.  Independent  of  any  question  relating  to  morals  or  religion, 
the  piiysical  welfare  of  tiie  citizen  is  a  subject  of  such  primary  importance  to  the 
State,  and  has  sucli  a  direct  relation  to  the  general  good,  as  to  make  laws  tending  to 
promote  tiiat  object  proper  under  the  police  ])ower,  and  hence  valid  under  the  Consti- 
tution, which  '  presupjwses  its  existence,  and  is  to  be  construed  with  reference  to  that 
fact.'     Village  of  Carthage  v.  Frederick,  122  N.  Y.  2G8,  273. 

"  The  statute  under  discussion  tends  to  effect  this  result,  because  it  requires  persons 
engaged  in  a  kind  of  business  that  takes  many  hours  each  day,  to  refrain  from  carry- 
ing it  on  during  one  day  in  seven.  This  affords  an  opportunity,  recurring  at  regular  in- 
tervals, for  rest,  needed  both  by  the  employer  anil  the  employed,  and  tlie  latter,  at  least, 
mav  not  have  the  power  to  observe  a  day  of  rest  without  the  aid  of  legislation.  As 
Mr".  Tiedeman  savs  in  his  work  on  Police  Powers :  '  If  the  law  did  not  interfere,  the 
feverish,  intense  desire  to  acquire  wealth.  .  .  .  inciting  a  relentless  rivalry  and  com- 
petition, would  ultimately  prevent  not  only  the  wage-earners,  but  likewise  the  capital- 
ists and  employers  themselves,  from  yielding  to  the  warnings  of  Nature  and  obeying 
the  instinct  of  self-preservation  by  resting  periodically  from  labor.'  Tiedeman's  Lira. 
Police  Powers,  181.  As  barbers  generally  work  more  hours  each  day  than  most  men, 
the  legislature  may  well  have  concluded  that  legislation  was  necessary  for  the  pro- 
tection of  their  health. 

"  We  think  that  this  statute  was  intended  and  is  adapted  to  promote  the  public 
health,  and  therel)y  to  serve  a  public  purpose  of  the  utmost  importance  by  promoting  the 
observance  of  Sunday  as  a  day  of  rest.  It  follows,  therefore,  tliat  it  does  not  go  be- 
yond the  limits  of  legislative  power  by  depriving  any  one  of  liberty  or  property  within 
the  meaning  of  the  Constitution. 

"  The  learned  counsel  for  the  defendant,  however,  criticises  the  act  in  question  as 
class  legi.slation,  and  claims  that  it  is  invalid  under  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States,  becau.se  it  denies  to  barbers  who  do  not  reside 
in  New  York  or  Saratoga  the  equal  protection  of  the  laws.  That  amendment  does 
not  relate  to  territorial  arrangements  made  for  different  portions  of  a  State,  nor  to 
legislation  which,  in  carrying  out  a  public  purpose,  is  limited  in  its  operation,  but 
witliin  the  sphere  of  its  operation  affects  alike  all  persons  similarly  situated.  Mis- 
souri V.  Lewis,  101   U.  S.  22,  30;  Barbier  v.  Connolly,  113  U.  S.  27,  31.     It  was  not 


SECT.  IV.  C]  RITCHIE    V.    STATE.  933 

desimed  to  iuterfere  with  the  exercise  of  the  police  ])Ower  by  the  State  for  the  protec- 
tion of  health,  or  the  preservation  of  morals.  Powell  v.  Peunsylvania,  127  U.  S.  678, 
683.  The  statute  treats  all  l)arbers  alike  withiu  tlie  same  localities,  fur  noue  can  worlc 
on  Sunday  outside  of  Mew  York  and  Saratoga,  but  all  may  work  in  tiiose  places  uutil 
a  certain  hour.  All  are,  therefore,  treated  alike  under  like  circumstances  and  condi- 
tions, both  iu  the  privileges  conferred  and  in  the  liabilities  imposed.  Hayes  v.  Mis- 
souri, 120  U.  S.  68.  As  was  said  by  the  learned  Appellate  Division  in  deciding  this 
case:  'If  the  legislature  has  power  to  regulate  the  observance  and  prevent  the  dese- 
cration of  the  Sabbatli,  it  has  the  power  to  say  what  acts  in  tlie  different  localities  of 
the  State  it  is  necessary  to  prohibit  to  accomplisii  this  purpose,  it  is  quite  conceiva- 
ble that  an  act  in  one  locality,  thickly  settled,  should  be  prohibited,  wliich  in  sparsely 
settled  districts  of  the  State  could  be  allowed,  and  for  this  reason  an  act  might  be  ob- 
jectioual)le  in  one  di.strict,  but  not  in  another.  All  of  these  regulations  have  in  view 
the  proper  observance  of  the  day,  and  are  within  the  discretion  of  the  legislature.' 

"  We  think  that  the  statute  violates  no  provision  of  either  the  Federal  or  State 
constitution,  and  that  the  judgment  appealed  from  should,  tlierefore,  be  aihrnied." 

In  Ex  PARTE  Jextzsch,  112  Cal.  468  (1896),  a  statute  containing  special  regula- 
tious  as  to  the  business  of  barbering,  was  held  unconstitutional  under  the.  State  con- 
stitution of  California,  which  contains  provisions  against  granting  special  privileges 
and  immunities,  and  passing  local  or  special  laws.  Henshaw,  J.,  delivering  the  opin- 
ion of  the  court,  used  tiiis  language  :  — 

"  A  man's  constitutional  liberty  means  more  than  his  personal  freedom.  It  means, 
■with  many  other  riglits,  his  rigiit  freely  to  labor,  and  to  own  the  fruits  of  his  toil.  It 
is  a  curious  law  for  the  protection  of  labor  wliich  punishes  the  laborer  for  working. 
Yet  that  is  precisely  what  tiiis  law  does.  The  laboring  barber,  engaged  in  a  most 
respectable,  useful,  aud  cleanly  pursuit,  is  .singled  out  from  the  thousands  of  his  fellows 
^u  other  employments,  aud  told  that,  willy  uilly,  he  shall  not  work  upon  holidays  ami 
Sundays  after  twelve  o'clock,  noon.  His  wishes,  tastes,-  or  necessities  are  uot  con- 
sulted. If  he  labors,  he  is  a  criminal.  Such  protection  to  labor  carried  a  little  further 
would  send  him  from  tlie  jail  to  the  poorhouse. 

"  How  comes  it  that  the  legislative  eye  was  so  keen  to  discern  the  needs  of  the 
oppressed  barber,  and  yet  was  blind  to  his  toiling  brethren  in  other  vocations  ]  Steam- 
car  and  street-car  operatives  labor  through  long  and  weary  Sunday  iiours;  so  do  mill 
and  factory  hands.  There  is  no  Sunday  period  of  rest  and  no  protection  for  the  over- 
worked employees  of  our  daily  papers.  Do  these  not  need  rest  and  protection  ■?  The 
bare  suggestion  of  these  considerations  shows  the  injustice  and  inequality  of  this  law. 

"  In  brief,  whether  or  not  a  general  law  to  promote  rest  from  labor  iu  all  business 
vocations  may  be  upheld  as  within  the  due  exercise  of  the  police  power,  as  imposing 
for  its  welfare  a  needed  period  of  repose  upon  the  wliole  community,  a  law  such  as 
this  certainly  cannot.  A  law  is  not  always  general  hecau.se  it  operates  upon  all  within 
a  class.  There  must  be  back  of  that  a  substantial  reason  why  it  is  made  to  operate 
only  upon  a  class,  and  not  generally  upon  all." 

In  [iiTCHiB  0.  State,  155  111.  98  (1895),  a  State  statute  was  considered  which  regu- 
lated the  manufacture  of  clothing,  and  made  it  a  crime  to  employ  a  female  in  any  fac- 
tory or  worksliop  in  that  business  more  than  eight  hours  in  any  one  day,  or  forty-eight 
hours  in  any  one  week.  It  was  contended  that  the  statute  was  a  violation  of  the  pro- 
visions in  the  State  constitution  and  in  the  Fourteenth  Amendment  to  the  Federal 
Constitution,  that  no  person  shall  be  deprived  of  life,  liberty,  or  pro])erty  without  due 
process  of  law,  in  that  it  infringed  the  right  to  contract.  Mr.  Justice  Magrcder, 
delivering  the  opinion  of  the  court,  used  this  language  :  — 

"A  number  of  cases  have  arisen  within  recent  years  in  which  the  courts  have  had 
occasion  to  consider  this  provision,  or  one  similar  to  it,  and  its  meaning  has  been  quite 
clearly  defined.  The  privilege  of  contracting  is  both  a  lilierty  and  ])ro])(!rty  right. 
Frorer  v.  The  People,  141  111.  171.  liberty  includes  the  right  to  acquire  property, 
and  that  means  and  includes  the  right  to  make  and  enforce  contracts.  The  State  v. 
Loomis,  115  Mo.  ."507.  The  right  to  use,  buy,  and  sell  property,  and  contract  in 
respect  tliereto.  is  protected  by  tlie  Constitution.  Labor  is  propertv.  and  the  laborer 
has  the  same  right  to  sell  his  labor,  aud  to  contract  with  reference  thereto,  as  has  any 


934  CIVIL    RIGHTS    AND    THEIR   GUARANTIES.         [CHAP.  XIII. 

DENT    V.    WEST    VIRGINIA. 

129  United  States,  114.     1889. 

[Plaintiff  in  error  was  convicted  in  a  West  Virginia  court  for 
violation  of  a  statute  requiring  every  practitioner  of  medicine  in  the 
State  to  obtain  a  certificate  frona  the  State  board  of  health  that  he 
is  a  graduate  of  a  reputable  medical  college  in  the  school  of  medi- 
cine to  which  he  belongs,  or  that  he  has  practised  medicine  in  the 

otlier  property  owner.  In  this  country  the  legislature  has  no  power  to  prevent  per- 
sons who  are  sui  juris  from  making  their  own  contracts,  nor  can  it  interfere  with  the 
freedom  of  contract  between  the  workman  and  the  employer.  The  right  to  labor  or 
employ  labor,  and  make  contracts  in  respect  thereto,  upon  such  terms  as  may  be  agreed 
between  the  parties,  is  included  in  the  constitutional  guaranty  above  quoted.  State 
V.  Goodwill,  33  W.  Va.  179;  Godcharles  v.  VVigeman,  113  Pa.  St.  431  ;  Braceville 
Coal  Co.  V.  The  People,  147  111.  66.  The  protection  of  property  is  one  of  the  objects 
for  wliich  free  governments  are  instituted  among  men.  Const,  of  111.  art.  2,  sec.  1. 
The  right  to  acquire,  possess,  aud  protect  property  includes  the  right  to  make  reason- 
able contracts.  Commonwealth  v.  Perry,  155  Mass.  117.  And  when  an  owner  is 
deprived  of  one  of  the  attributes  of  property,  like  the  right  to  make  contracts,  lie  is 
deprived  of  his  property  within  the  meaning  of  the  Constitution.  Matter  of  Applica- 
tion of  Jacobs,  98  N.  Y.  98.  The  fundamental  rights  of  Englishmen,  brought  to  this 
country  by  its  original  settlers,  and  wrested  from  time  to  time  in  the  progress  of  his- 
tory from  the  sovereigns  of  the  English  nation,  have  been  reduced  by  Blaclcstone  to 
three  principal  or  primary  articles :  '  the  right  of  personal  security,  the  right  of  per- 
sonal liberty,  and  the  right  of  private  property.'  1  Black.  Com.,  marg.  page  129.  The 
right  to  contract  is  the  only  way  by  which  a  person  can  rightfully  acquire  property 
hy  his  own  labor.  '  Of  all  the  rights  of  persons,  it  is  the  most  essential  to  human  hap- 
piness.'    Leep  V.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  58  Ark.  407. 

"  This  right  to  contract,  which  is  thus  included  in  the  fundamental  rights  of  liberty 
and  property,  cannot  be  taken  away  '  without  due  process  of  law.'  The  words,  '  due 
process  of  law,'  have  been  held  to  be  synonymous  with  the  words,  '  law  of  the  land.' 
The  State  v.  Loomis,  supra;  Frorer  v.  The  People,  supra.  Blackstone  says:  'The 
third  absolute  right,  inherent  in  every  Englishman,  is  that  of  property,  which  consists 
in  tlie  free  use,  enjoyment,  and  disposal  of  all  his  acquisitions,  without  any  control 
or  diminution,  save  only  by  the  laws  of  the  land.'  1  Black.  Com.,  p.  138;  Ex  parte 
Jacobs,  98  N.  Y.  98.  The  'law  of  the  land  '  is  ' general  public  law  binding  upon  all 
the  members  of  the  community,  under  all  circumstances,  and  not  partial  or  private 
laws,  affecting  the  rights  of  private  individuals  or  classes  of  individuals.'  Millett  v. 
The  People,  117  111.  294.  The  '  law  of  the  land '  is  the  opposite  of  '  arbitrary,  unequal, 
and  partial  legislation.'  The  State  v.  Loomis,  supra.  The  legislature  has  no  right 
to  deprive  one  class  of  persons  of  privileges  allowed  to  other  persons  under  like  con- 
ditions. The  man  who  is  forbidden  to  acquire  and  enjoy  property  in  the  same  manner 
in  which  the  rest  of  the  community  is  permitted  to  acquire  and  enjoy  it,  is  deprived  of 
liberty  in  particulars  of  primary  importance  to  his  pursuit  of  happiness.  If  OTie  man 
is  denied  the  right  to  contract  as  he  has  bitherto  done  under  the  law,  and  as  others 
are  still  allowed  to  do  by  the  law,  he  is  deprived  of  both  liberty  and  property  to  the 
extent  to  which  he  is  thus  deprived  of  such  right.  In  line  with  these  principles,  it 
has  been  held  that  it  is  not  competent,  under  the  Constitution,  for  the  legislature  to 
single  out  owners  and  employers  of  a  particular  class,  and  provide  that  they  shall  bear 
burdens  not  imposed  on  other  owners  of  property  or  employers  of  labor,  and  prohibit 
them  from  making  contracts  which  other  owners  or  employers  are  permitted  to  make. 
Mi'lett  r.  The  People,  supra;  Frorer  v.  The  People,  supra;  Ramsey  v.  The  People, 
142  111.  380." 


SECT.  IV.  c]  DENT   V.   WEST   VIRGINIA.  935 

State  continuously  for  a  period  of  ten  years  prior  to  the  8th  day  of 
March,  1881,  or  that  he  has  been  found  upon  examination  by  the 
board  to  be  qualified  to  practise  medicine  in  all  its  departments. 
It  appeared  that  defendant  had  been  practising  medicine  prior  to 
the  passage  of  the  statute,  but  not  for  the  period  of  ten  years,  which 
under  the  statute  would  have  entitled  him  to  a  license  to  practise, 
and  he  claimed  that  the  statute  was  as  to  him  unconstitutional  and 
void  as  interfering  with  his  vested  right  to  practise  medicine.  On 
appeal  to  the  Supreme  Court  of  Appeals  of  the  State  the  judgment 
was  affirmed,  and  the  case  is  brought  here  by  writ  of  error.] 

Mr.  Justice  Field,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

It  is  undoubtedly  the  right  of  every  citizen  of  the  United  States 
to  follow  any  lawful  calling,  business,  or  profession  he  may  choose, 
subject  only  to  such  restrictions  as  are  imposed  upon  all  persons  of 
like  age,  sex,  and  condition.  This  right  may  in  many  respects  be 
considered  as  a  distinguishing  feature  of  our  republican  institutions. 
Here  all  vocations  are  open  to  every  one  on  like  conditions.  All 
may  be  pursued  as  sources  of  livelihood,  some  requiring  years  of 
study  and  great  learning  for  their  successful  prosecution.  The  inter- 
est, or,  as  it  is  sometimes  termed,  the  "estate"  acquired  in  them, — 
that  is,  the  right  to  continue  their  prosecution,  —  is  often  of  great 
value  to  the  possessors,  and  cannot  be  arbitrarily  taken  from  them, 
any  more  than  their  real  or  personal  property  can  be  thus  taken. 
But  there  is  no  arbitrary  deprivation  of  such  right  where  its  exercise 
is  not  permitted  because  of  a  failure  to  comply  with  conditions 
imposed  by  the  State  for  the  .protection  of  society.  The  power  of 
the  State  to  provide  for  the  general  welfare  of  its  people  authorizes 
it  to  prescribe  all  such  regulations  as,  in  its  judgment,  will  secure  or 
tend  to  secure  them  against  the  consequences  of  ignorance  and  inca- 
pacity as  well  as  of  deception  and  fraud.  As  one  means  to  this 
end  it  has  been  the  practice  of  different  States,  from  time  imme- 
morial, to  exact  in  many  pursuits  a  certain  degree  of  skill  and  learn- 
ing upon  which  the  community  may  confidently  rely,  their  possession 
being  generally  ascertained  upon  an  examination  of  parties  by  com- 
petent persons,  or  inferred  from  a  certificate  to  them  in  the  form  of 
a  diploma  or  license  from  an  instituticm  established  for  instruction 
on  the  subjects,  scientific  and  otherwise,  with  which  such  pursuits 
have  to  deal.  The  nature  and  extent  of  the  qualifications  required 
must  depend  primarily  upon  the  judgment  of  the  State  as  to  their 
necessity.  If  they  are  appropriate  to  the  calling  or  profession,  and 
attainable  by  reasonable  study  or  application,  no  objection  to  their 
validity  can  be  raised  because  of  their  stringency  or  difficulty.  It 
is  only  when  they  have  no  relation  to  such  calling  or  profession,  or 
are  unattainable  by  such  reasonable  study  and  applicatioti,  that  they 
can  operate  to  deprive  one  of  his  right  to  pursue  a  lawful  vocation. 


936  CIVIL   RIGHTS    AND   THEIR   GUARANTIES.         [CHAP.  XIII. 

Few  professions  require  more  careful  preparation  by  one  who 
seeks  to  enter  it  than  that  of  medicine.  It  has  to  deal  with  all 
those  subtle  and  mysterious  influences  upon  which  health  and  life 
depend,  and  requires  not  only  a  knowledge  of  the  properties  of 
vegetable  and  mineral  sustances,  but  of  the  human  body  in  all  its 
complicated  parts,  and  their  relation  to  each  other,  as  well  as  their 
influence  upon  the  mind.  The  physician  must  be  able  to  detect 
readily  the  presence  of  disease,  and  prescribe  appropriate  remedies 
for  its  removal.  Every  one  may  have  occasion  to  consult  him,  but 
comparatively  few  can  judge  of  the  qualifications  of  learning  and 
skill  which  he  possesses.  Reliance  must  be  placed  upon  the  assur- 
ance given  by  his  license,  issued  by  an  authority  competent  to  judge 
in  that  respect,  that  he  possesses  the  requisite  qualifications.  Due 
consideration,  therefore,  for  the  protection  of  society  may  well  in- 
duce the  State  to  exclude  from  practice  those  who  have  not  such 
a  license,  or  who  are  found  upon  examination  not  to  be  fully  quali- 
fied. The  same  reasons  which  control  in  imposing  conditions,  upon 
compliance  with  which  the  physician  is  allowed  to  practise  in  the 
first  instance,  may  call  for  further  conditions  as  new  modes  of 
treating  disease  are  discovered,  or  a  more  thorough  acquaintance  is 
obtained  of  the  remedial  properties  of  vegetable  and  mineral  sub- 
stances, or  a  more  accurate  knowledge  is  acquired  of  the  human 
system  and  of  the  agencies  by  which  it  is  affected.  It  would  not 
be  deemed  a  matter  for  serious  discussion  that  a  knowledge  of  the 
new  acquisitions  of  the  profession,  as  it  from  time  to  time  advances 
in  its  attainments  for  the  relief  of  the  sick  and  suffering,  should 
be  required  for  continuance  in  its  practice,  but  for  the  earnestness 
with  which  the  plaintiff  in  error  insists  that,  by  being  compelled  to 
obtain  the  certificate  required,  and  prevented  from  continuing  in 
his  practice  without  it,  he  is  deprived  of  his  right  and  estate  in  his 
profession  without  due  process  of  law.  We  perceive  nothing  in  the 
statute  which  indicates  an  intention  of  the  legislature  to  deprive 
one  of  any  of  his  rights.  No  one  has  a  right  to  practise  medicine 
without  having  the  necessary  qualifications  of  learning  and  skill; 
and  the  statute  only  requires  that  whoever  assumes,  by  offering  to 
tlie  community  his  services  as  a  physician,  that  he  possesses  such 
learning  and  skill,  shall  present  evidence  of  it  by  a  certificate  or 
license  from  a  body  designated  by  the  State  as  competent  to  judge 
of  his  qualifications. 

As  we  have  said  on  more  than  one  occasion,  it  may  be  difficult,  if 
not  impossible,  to  give  to  the  terms  "due  process  of  law  "  a  defini- 
tion which  will  embrace  every  permissible  exertion  of  power  affect- 
ing private  rights  and  exclude  such  as  are  forbidden.  They  com'  to 
us  from  the  law  of  England,  from  which  country  our  jurisprudence 
is  to  a  great  extent  derived,  and  their  requirement  was  there  de- 
signed to  secure  the  subject  against  the  arbitrary  action  of  the  crown 
and  place  him  under  the  protection  of  the  law.     They  were  deemed 


SECT.  IV.  C]  DENT    V.    WEST    VIRGINIA.  937 

to  be  equivalent  to  "the  law  of  the  land."  In  this  country,  the 
requirement  is  intended  to  have  a  similar  effect  against  legislative 
power,  that  is,  to  secure  the  citizen  against  any  arbitrary  depriva- 
tion of  his  rights,  whether  relating  to  his  life,  his  liberty,  or  his 
property.  Legislation  must  necessarily  vary  with  the  different 
objects  upon  which  it  is  designed  to  operate.  It  is  sufficient,  for 
the  purposes  of  this  case,  to  say  that  legislation  is  not  open  to  the 
charge  of  depriving  one  of  his  rights  without  due  process  of  law,  if 
it  be  general  in  its  operation  upon  the  subjects  to  which  it  relates, 
and  is  enforceable  in  the  usual  modes  established  in  the  administra- 
tion of  government  with  respect  to  kindred  matters:  that  is  by 
process  or  proceedings  adapted  to  the  nature  of  the  case.  The  great 
purpose  of  the  requirement  is  to  exclude  everything  that  is  arbitrary 
and  capricious  in  legislation  affecting  the  rights  of  the  citizen.  As 
said  by  this  court  in  Yick  Wo  r.  Hopkins,  speaking  by  Mr.  Justice 
Matthews:  "When  we  consider  the  nature  and  the  theory  of  our 
institutions  of  government,  the  principles  upon  which  they  are  sup- 
posed to  rest,  and  review  the  history  of  their  development,  we  are 
constrained  to  conclude  that  they  do  not  mean  to  leave  room  for 
the  play  and  action  of  purely  personal  and  arbitrary  power."  118 
U.  S.  ^56,  3G9.  See,  also,  Pennoyer  v.  Keff',  95  U.  S.  714,  733; 
Davidson  v.  New  Orleans,  96  U.  S.  97,  104,  107;  Hurtado  v.  Cali- 
fornia, 110  U.  S.  516;  Missouri  Pacific  Railway  Co.  i\  Humes,  115 
U.  S.  512,  519. 

There  is  nothing  of  an  arbitrary  character  in  the  provisions  of  the 
statute  in  question;  it  applies  to  all  physicians,  except  those  who 
may  be  called  for  a  special  case  from  another  State;  it  imposes  no 
conditions  which  cannot  be  readily  met;  and  it  is  made  enforceable 
in  the  mode  usual  in  kindred  matters,  that  is,  by  regular  proceed- 
ings adapted  to  the  case.  It  authorizes  an  examination  of  the  appli- 
cant by  the  board  of  health  as  to  his  qualifications  when  he  has  no 
evidence  of  them  in  the  diploma  of  a  reputable  medical  college  in 
the  school  of  medicine  to  which  he  belongs,  or  has  not  practised  in 
the  State  a  designated  period  before  March,  1881.  If,  in  the  pro- 
ceedings under  the  statute,  there  should  be  any  unfair  or  unjust 
action  on  the  part  of  the  board  in  refusing  him  a  certificate,  we 
doubt  not  that  a  remedy  would  be  found  in  the  courts  of  the  State. 
But  no  such  imputation  can  be  made,  for  the  plaintiff  in  error  did 
not  submit  himself  to  the  examination  of  the  board  after  it  had 
decided  that  the  diploma  he  presented  was  insufficient. 

[The  court  discusses  at  length  the  case  of  Ux  parte  Garland, 
supra,  p.  576,  for  the  purpose  of  distinguishing  this  case.  The  judg- 
ment is  affirmed.] 


938  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [CHAP.  XIII. 

MUGLER   V.   KANSAS. 
123  United  States,  623.     1887. 

[Plaintiff  in  error  was  prosecuted  under  a  statute  of  Kansas 
passed  in  1881  to  carry  into  effect  the  section  of  the  constitution  of 
the  State  adopted  in  1880  prohibiting  the  manufacture  and  sale  of 
intoxicating  liquors  except  for  medicinal,  scieutilic,  and  mechan- 
ical purposes.  By  the  statute  the  manufacture  or  sale,  except  for 
the  specified  purposes,  was  made  a  misdemeanor,  and  it  was  further 
provided  that  no  one  should  sell  for  either  of  the  excepted  purposes 
without  having  procured  a  druggist's  permit  therefor,  the  condi- 
tions upon  which  such  permit  might  be  granted  being  prescribed. 
Mugler  was  charged  with  manufacturing  and  also  selling  without 
such  permit,  and  being  convicted,  he  appealed  to  the  Supreme  Court 
of  Kansas,  where  the  conviction  was  affirmed,  and  thereupon  sued 
out  this  writ  of  error.] 

Mk.  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  facts  necessary  to  a  clear  understanding  of  the  questions, 
common  to  these  cases,  are  the  following :  Mugler  and  Ziebold  & 
Hagelin  were  engaged  in  manufacturing  beer  at  their  respective 
establishments  (constructed  specially  for  that  purpose)  for  several 
years  prior  to  the  adoption  of  the  constitutional  amendment  of 
1880.  They  continued  in  such  business  in  defiance  of  the  statute 
of  1881,  and  without  having  the  required  permit.  Kor  did  Mugler 
have  a  license  or  permit  to  sell  beer.  The  single  sale  of  which  he 
was  found  guilty  occurred  in  the  State,  and  after  May  1,  1881,  that 
is,  after  the  act  of  February  19,  1881,  took  effect,  and  was  of  beer 
manufactured  before  its  passage. 

The  buildings  and  machinery  constituting  these  breweries  are  of 
little  value  if  not  used  for  the  purpose  of  manufacturing  beer;  that 
is  to  say,  if  the  statutes  are  enforced  against  the  defendants  the 
value  of  their  property  will  be  very  materially  diminished. 

The  general  question  in  each  case  is,  whether  the  foregoing  stat- 
utes of  Kansas  are  in  conflict  with  that  clause  of  the  Fourteenth 
Amendment  which  provides  that  "no  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process  of  law." 

That  legislation  by  a  State  prohibiting  the  manufacture  within 
her  limits  of  intoxicating  liquors,  to  be  there  sold  or  bartered  for 
general  use  as  a  beverage,  does  not  necessarily  infringe  any  right, 
privilege,  or  immunity  secured  by  the  Constitution  of  the  United 
States,  is  made  clear  by  the  decisions  of  this  court,  rendered  before 
and  since  the  adoption  of  the  Fourteenth  Amendment;  to  some  of 


SECT.  IV.  C]  MUGLER    V.    KANSAS.  939 

wliich,  in  view  of  questions  to  be  presently  considered,  it  will  be 
well  to  refer. 

In  the  License  Cases,  5  How.  504,  the  question  was,  whether 
certain  statutes  of  Massachusetts,  Rhode  Island,  and  New  Hamp- 
shire, relating  to  the  sale  of  spirituous  liquors,  were  repugnant  to 
the  Constitution  of  the  United  States.  In  determining  that  ques- 
tion, it  became  necessary  to  inquire  whether  there  was  any  conflict 
between  the  exercise  by  Congress  of  its  power  to  regulate  commerce 
with  foreign  countries,  or  among  the  several  States,  and  the  exercise 
by  a  State  of  what  are  called  police  powers.  Although  the  members 
of  the  court  did  not  fully  agree  as  to  the  grounds  upon  which  the 
decision  should  be  placed,  they  were  unanimous  in  holding  that 
the  statutes  then  under  examination  were  not  inconsistent  with  the 
Constitution  of  the  United  States,  or  with  any  act  of  Congress. 
Chief  Justice  Taney  said:  "If  any  State  deems  the  retail  and  inter- 
nal traffic  in  ardent  spirits  injurious  to  its  citizens,  and  calculated 
to  produce  idleness,  vice,  or  debauchery,  I  see  nothing  in  the  Con- 
stitution of  the  United  States  to  prevent  it  from  regulating  and 
restraining  the  traffic,  or  from  prohibiting  it  altogether,  if  it  thinks 
proper."  (p.  577.)  Mr.  Justice  McLean,  among  other  things, 
said:  "A  State  regulates  its  domestic  commerce,  contracts,  the 
transmission  of  estates,  real  and  personal,  and  acts  upon  all  inter- 
nal matters  which  relate  to  its  moral  and  political  welfare.  Over 
these  subjects  the  Federal  government  has  no  power.  .  .  .  The 
acknowledged  police  power  of  a  State  extends  often  to  the  destruc- 
tion of  property.  A  nuisance  may  be  abated.  Everything  prejudi- 
cial to  the  health  or  morals  of  a  city  may  be  removed."  (pp.  588, 
589.)  Mr.  Justice  Woodbury  observed:  "How  can  they  [the  States] 
be  sovereign  within  their  respective  spheres,  without  power  to  regu- 
late all  their  internal  commerce,  as  well  as  police,  and  direct  how, 
when,  and  where  it  shall  be  conducted  in  articles  intimately  con- 
nected either  with  public  morals,  or  public  safety,  or  the  public 
prosperity?"  (p.  628.)  Mr.  Justice  Grier,  in  still  more  emphatic 
language,  said:  "The  true  question  presented  by  these  cases,  and 
one  which  I  am  not  disposed  to  evade,  is  whether  the  States  have  a 
right  to  prohibit  the  sale  and  consumption  of  an  article  of  commerce 
which  they  believe  to  be  pernicious  in  its  effects,  and  the  cause  of 
disease,  pauperism,  and  crime.  .  .  .  Without  attempting  to  define 
what  are  the  peculiar  subjects  or  limits  of  this  power,  it  may  safely 
be  affirmed  that  every  law  for  the  restraint  and  punishment  of 
crime,  for  the  preservation  of  the  public  peace,  health,  and  morals, 
must  come  within  this  category.  ...  It  is  not  necessary,  for  the 
sake  of  justifying  the  State  legislation  now  under  consideration,  to 
array  the  appalling  statistics  of  misery,  pauperism,  and  crime, 
which  have  their  origin  in  the  use  or  abuse  of  ardent  spirits.  The 
police  power,  which  is  exclusively  in  the  States,  is  alone  competent 
to  the  correction  of  these  great  evils,  and  all  measures  of  restraint 


940  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 

or  prohibition  necessary  to  effect  the  purpose  are  within  the  scope 
of  that  authority."    (pp.  G31,  632.) 

In  Bartemeyer  v.  Iowa,  18  Wall.  129,  it  was  said  that  prior  to 
the  adoption  of  the  Fourteenth  Amendment  State  enactments  regu- 
lating or  prohibiting  the  traffic  in  intoxicating  liquors  raised  no 
question  under  the  Constitution  of  the  United  States;  and  that 
such  legislation  was  left  to  the  discretion  of  the  respective  States, 
subject  to  no  other  limitations  than  those  imposed  by  their  own 
constitutions,  or  by  the  general  principles  supposed  to  limit  all 
legislative  power.  Referring  to  the  contention  that  the  right  to  sell 
intoxicating  liquors  was  secured  by  the  Fourteenth  Amendment, 
the  court  said  that  "  so  far  as  such  a  right  exists,  it  is  not  one  of 
the  rights  growing  out  of  citizenship  of  the  United  States."  In 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  33,  it  was  said  that,  "as  a 
measure  of  police  regulation,  looking  to  the  preservation  of  public 
morals,  a  State  law  prohibiting  the  manufacture  and  sale  of  intoxi- 
cating liquors  is  not  repugnant  to  any  clause  of  the  Constitution  of 
the  United  States."  Finally,  in  Foster  v.  Kansas,  112  U.  S.  201, 
206,  the  court  said  that  the  question  as  to  the  constitutional  power 
of  a  State  to  prohibit  the  manufacture  and  sale  of  intoxicating 
liquors  was  no  longer  an  open  one  in  this  court.  These  cases  rest 
upon  the  acknowledged  right  of  the  States  of  the  Union  to  control 
their  purely  internal  affairs,  and,  in  so  doing,  to  protect  the 
health,  morals,  and  safety  of  their  people  by  regulations  that  do 
not  interfere  with  the  execution  of  the  powers  of  the  general  gov- 
ernment, or  violate  rights  secured  by  the  Constitution  of  the  United 
States.  The  power  to  establish  such  regulations,  as  was  said  in 
Gibbons  v.  Ogden,  9  Wheat.  1,  203,  reaches  everything  within  the 
territory  of  a  State  not  surrendered  to  the  national  government. 

It  is,  however,  contended,  that  although  the  State  may  prohibit 
the  manufacture  of  intoxicating  liquors  for  sale  or  barter  within 
her  limits,  for  general  use  as  a  beverage,  "no  convention  or  legisla- 
ture has  the  right,  under  our  form  of  government,  to  prohibit  any 
citizen  from  manufacturing  for  his  own  use,  or  for  export,  or  storage, 
any  article  of  food  or  drink  not  endangering  or  affecting  the  rights 
of  others."  The  argument  made  in  support  of  the  first  branch  of  this 
proposition,  briefly  stated,  is,  that  in  the  implied  compact  between 
the  State  and  the  citizen  certain  rights  are  reserved  by  the  latter, 
which  are  guaranteed  by  the  constitutional  provision  protecting  per- 
sons against  being  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law,  and  with  which  the  State  cannot  interfere;  that 
among  those  rights  is  that  of  manufacturing  for  one's  use  either 
food  or  drink;  and  that  while,  according  to  the  doctrines  of  the 
Commune,  the  State  may  control  the  tastes,  appetites,  habits,  dress, 
food,  and  drink  of  the  people,  our  system  of  government,  based 
upon  the  individuality  and  intelligence  of  the  citizen,  does  not 
claim  to  control  him,  except  as  to  his  conduct  to  others,  leaving  him 
the  sole  judge  as  to  all  that  only  affects  himself. 


SECT.  IV.  c]  MDGLER    V.    KANSAS.  941 

It  will  be  observed  that  the  proposition,  and  the  argument  made 
in  support  of  it,  equally  concede  that  the  right  to  manufacture 
drink  for  one's  personal  use  is  subject  to  the  condition  that  such 
manufacture  does  not  endanger  or  affect  the  rights  of  others.  If 
such  manufacture  does  prejudicially  affect  the  rights  and  interests 
of  the  community,  it  follows,  from  the  very  premises  stated,  that 
society  has  the  power  to  protect  itself,  by  legislation,  against  the 
injurious  consequences  of  that  business.  As  was  said  in  Munn  v. 
Illinois,  94  U.  S.  11.3,  124,  while  power  does  not  exist  with  the 
whole  people  to  control  rights  that  are  purely  and  exclusively 
private,  government  may  require  "each  citizen  to  so  conduct  him- 
self, and  so  use  his  own  property,  as  not  unnecessarily  to  injure 
another." 

But  by  whom,  or  by  what  authority,  is  it  to  be  determined  whether 
the  manufacture  of  particular  articles  of  drink,  either  for  general 
use  or  for  the  personal  use  of  the  maker,  will  injuriously  affect  the 
public?  Power  to  determine  such  questions,  so  as  to  bind  all,  must 
exist  somewhere;  else  society  will  be  at  the  mercy  of  the  few,  who, 
regarding  only  their  own  appetites  or  passions,  may  be  willing  to 
imperil  the  peace  and  security  of  the  many,  provided  only  they  are 
permitted  to  do  as  they  please.  Under  our  system  that  power  is 
lodged  with  the  legislative  branch  of  the  government.  It  belongs 
to  that  department  to  exert  what  are  known  as  the  police  powers  of 
the  State,  and  to  determine,  primarily,  what  measures  are  appro- 
priate or  needful  for  the  protection  of  the  public  morals,  the  public 
health,  or  the  public  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly  for 
the  promotion  of  these  ends  is  to  be  accepted  as  a  legitimate  exer- 
tion of  the  police  powers  of  the  State.  There  are,  of  necessity, 
limits  beyond  which  legislation  cannot  rightfully  go.  "\A'hile  every 
possible  presumption  is  to  be  indulged  in  favor  of  the  validity  of  a 
statute  (Sinking  Fund  Cases,  99  U.  S.  700,  718),  the  courts  must 
obey  the  Constitution  rather  than  the  law-making  department  of 
government,  and  must,  upon  their  own  responsibility,  determine 
whether,  in  any  particular  case,  these  limits  have  been  passed. 
"To  what  purpose,"  it  was  said  in  Marbury  r.  Madison,  1  Cranch, 
137,  176,  "are  powers  limited,  and  to  what  purpose  is  tliat  limita- 
tion committed  to  writing,  if  these  limits  may,  at  any  time,  be 
passed  by  those  intended  to  be  restrained  ?  The  distinction  be- 
tween a  government  with  limited  and  unlimited  powers  is  abolished, 
if  those  limits  do  not  confine  the  persons  on  whom  they  are  imposed, 
and  if  acts  prohibited  and  acts  allowed  are  of  equal  obligation." 
The  courts  are  not  bound  by  mere  forms,  nor  are  they  to  be  misled 
by  mere  pretences.  They  are  at  liberty  —  indeed,  are  under  a  solemn 
duty  —  to  look  at  the  substance  of  things,  whenever  they  enter  upon 
the  inquiry  whether  the  legislature  has  transcended  the  limits  of 
its   authority.     If,    therefore,  a  statute   purporting   to   have    been 


942  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 

enacted  to  protect  the  public  health,  the  public  morals,  or  the  public 
safety,  has  no  real  or  substantial  relation  to  those  objects,  or  is  a 
palpable  invasion  of  rights  secured  by  the  fundamental  law,  it  is 
the  duty  of  the  courts  to  so  adjudge,  and  thereby  give  effect  to  the 
Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations,  of 
the  judicial  and  legislative  departments  of  government  with  each 
other,  it  is  difficult  to  perceive  any  ground  for  the  judiciary  to 
declare  that  the  prohibition  by  Kansas  of  the  manufacture  or  sale, 
within  her  limits,  of  intoxicating  liquors  for  general  use  there  as  a 
beverage,  is  not  fairly  adapted  to  the  end  of  protecting  the  com- 
munity against  the  evils  which  confessedly  result  from  the  excessive 
use  of  ardent  spirits.  There  is  no  justification  for  holding  that  the 
State,  under  the  guise  merely  of  police  regulations,  is  here  aiming 
to  deprive  the  citizen  of  his  constitutional  rights;  for  we  cannot 
shut  out  of  view  the  fact,  within  the  knowledge  of  all,  that  the  public 
health,  the  public  morals,  and  the  public  safety  may  be  endangered 
by  the  general  use  of  intoxicating  drinks;  nor  the  fact,  established 
by  statistics  accessible  to  every  one,  that  the  idleness,  disorder, 
pauperism,  and  crime  existing  in  the  country  are,  in  some  degree  at 
least,  traceable  to  this  evil.  If,  therefore,  a  State  deems  the  abso- 
lute prohibition  of  the  manufacture  and  sale,  within  her  limits,  of 
intoxicating  liquors  for  other  than  medical,  scientific,  and  manufactur- 
ing purposes,  to  be  necessary  to  the  peace  and  security  of  society, 
the  courts  cannot,  without  usurping  legislative  functions,  override 
the  will  of  the  people  as  thus  expressed  by  their  chosen  represent- 
atives. They  have  nothing  to  do  with  the  mere  policy  of  legisla- 
tion. Indeed,  it  is  a  fundamental  principle  in  our  institutions, 
indispensable  to  the  preservation  of  public  liberty,  that  one  of  the 
separate  departments  of  government  shall  not  usurp  powers  com- 
mitted by  the  Constitution  to  another  department.  And  so,  if,  in 
the  judgment  of  the  legislature,  the  manufacture  of  intoxicating 
liquors  for  the  maker's  own  use,  as  a  beverage,  would  tend  to 
cripple,  if  it  did  not  defeat,  the  efforts  to  guard  the  community 
against  the  evils  attending  the  excessive  use  of  such  liquors,  it  is 
not  for  the  courts,  upon  their  views  as  to  what  is  best  and  safest 
for  the  community,  to  disregard  the  legislative  determination  of 
that  question.  So  far  from  such  a  regulation  having  no  relation 
to  the  general  end  sought  to  be  accomplished,  the  entire  scheme  of 
prohibition,  as  embodied  in  the  constitution  and  laws  of  Kansas, 
might  fail,  if  the  right  of  each  citizen  to  manufacture  intoxicating 
liquors  for  his  own  use  as  a  beverage  were  recognized.  Such  a  right 
does  not  inhere  in  citizenship.  Nor  can  it  be  said  that  government 
interferes  with  or  impairs  any  one's  constitutional  rights  of  liberty 
or  of  property,  when  it  determines  that  the  manufacture  and  sale 
of  intoxicating  drinks,  for  general  or  individual  use,  as  a  beverage, 
are,  or  may  become,  hurtful  to  society,  and  constitute,  therefore, 


SECT.  IV.  C]  MUGLER    V.    KANSAS.  943 

a  business  in  which  no  one  may  lawfully  engage.  Those  rights  are 
best  secured,  in  our  government,  by  tlie  observance,  upon  the  part 
of  all,  of  such  regulations  as  are  established  by  competent  authority 
to  promote  the  common  good.  No  one  may  rightfully  do  that  which 
the  law-making  power,  upon  reasonable  grounds,  declares  to  be 
prejudicial  to  the  general  welfare. 

This  conclusion  is  unavoidable,  unless  the  Fourteenth  Amend- 
ment of  the  Constitution  takes  from  the  States  of  the  Union  those 
powers  of  police  that  were  reserved  at  the  time  the  original  Consti- 
tution was  adopted.  But  this  court  has  declared,  upon  full  consid- 
eration, in  Barbieri?.  Connolly,  113  U.  S.  27,  31,  that  the  Fourteenth 
Amendment  had  no  such  effect.  After  observing,  among  other 
things,  that  that  amendment  forbade  the  arbitrary  deprivation  of 
life  or  liberty,  and  the  arbitrary  spoliation  of  property,  and  secured 
equal  protection  to  all  under  like  circumstances,  in  respect  as  well 
to  their  personal  and  civil  rights  as  to  their  acquisition  and  enjoj?- 
ment  of  property,  the  court  said:  ''But  neither  the  amendment,  — 
broad  and  comprehensive  as  it  is,  — nor  any  other  amendment,  was 
designed  to  interfere  with  the  power  of  the  State,  sometimes  termed 
its  'police  power,'  to  prescribe  regulations  to  promote  the  health, 
peace,  -  morals,  education,  and  good  order  of  the  people,  and  to 
legislate  so  as  to  increase  the  industries  of  the  State,  develop  its 
resources,  and  add  to  its  wealth  and  prosperity." 

Undoubtedly  the  State,  when  providing,  by  legislation,  for  the 
protection  of  the  public  health,  the  public  morals,  or  the  public 
safety,  is  subject  to  the  paramount  authority  of  the  Constitution  of 
the  United  States,  and  may  not  violate  rights  secured  or  guaranteed 
by  that  instrument,  or  interfere  with  the  execution  of  the  powers 
confided  to  the  general  government.  Henderson  tK  Mayor  of  New 
York,  92  U.  S.  259;  Railroad  Co.  v.  Husen,  95  U.  S.  465;  New 
Orleans  Gas  Co.  v,  Louisiana  Light  Co.,  115  U.  S.  650;  Walling  ^\ 
Michigan,  116  U.  S.  446;  Yick  Wo  v,  Hopkins,  118  U.  S.  356; 
Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Health,  118  U.  S. 
455. 

Upon  this  ground  —  if  we  do  not  misapprehend  the  position  of 
defendants  —  it  is  contended  that,  as  the  primary  and  principal  use 
of  beer  is  as  a  beverage ;  as  their  respective  breweries  were  erected 
when  it  was  lawful  to  engage  in  the  manufacture  of  beer  for  every 
purpose ;  as  such  establishments  will  become  of  no  value  as  property, 
or,  at  least,  will  be  materially  diminished  in  value,  if  not  employed 
in  the  manufacture  of  beer  for  every  purpose;  the  prohibition  upon 
their  being  so  employed  is,  in  effect,  a  taking  of  property  for  public 
use  without  compensation,  and  depriving  the  citizen  of  his  property 
without  due  process  of  law.  In  other  words,  although  the  State,  in 
the  exercise  of  her  police  powers,  may  lawfully  prohibit  the  manu- 
facture and  sale,  within  her  limits,  of  intoxicating  liquors  to  be 
used  as  a  beverage,  legislation  having  that  object  in  view  cannot  be 


944  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 

enforced  against  those  who,  at  the  time,  happen  to  own  propertj^, 
the  cliief  value  of  which  consists  in  its  fitness  for  such  manufactur- 
ing purposes,  unless  compensation  is  first  made  for  the  diminution 
in  the  value  of  their  property,  resulting  from  such  prohibitory 
enactments. 

This  interpretation  of  the  Fourteenth  Amendment  is  inadmis- 
sible. It  cannot  be  supposed  that  the  States  intended,  by  adopting 
that  amendment,  to  impose  restraints  upon  the  exercise  of  their 
powers  for  the  protection  of  the  safety,  health,  or  morals  of  the 
community.  In  respect  to  contracts,  the  obligations  of  which  are 
protected  against  hostile  State  legislation,  this  court  in  Butchers' 
Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  751,  said  that  the 
State  could  not,  by  any  contract,  limit  the  exercise  of  her  power  to 
the  prejudice  of  the  public  health  and  the  public  morals.  So,  in 
Stone  V.  Mississippi,  101  U.  S.  814,  81G,  where  the  Constitution  was 
invoked  against  the  repeal  by  the  State  of  a  charter,  granted  to  a 
private  corporation,  to  conduct  a  lottery,  and  for  which  that  corpo- 
ration paid  to  the  State  a  valuable  consideration  in  money,  the  court 
said:  "No  legislature  can  bargain  away  the  public  health  or  the 
public  morals.  The  people  themselves  cannot  do  it,  much  less 
their  servants.  .  .  .  Government  is  organized  with  a  view  to  their 
preservation,  and  cannot  divest  itselE  of  the  power  to  provide  for 
them."  Again,  in  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115 
U.  S.  650,  672:  "The  constitutional  prohibition  upon  State  laws 
impairing  the  obligation  of  contracts  does  not  restrict  the  power  of 
the  State  to  protect  the  public  health,  the  public  morals,  or  the 
public  safety,  as  the  one  or  the  other  may  be  involved  in  the  exe- 
cution of  such  contracts.  Rights  and  privileges  arising  from  con- 
tracts with  a  State  are  subject  to  regulations  for  the  protection  of 
the  public  health,  the  public  morals,  and  the  public  safety,  in  the 
same  sense,  and  to  the  same  extent,  as  are  all  contracts  and  all 
property,  whether  owned  by  natural  persons  or  corporations." 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,  was  embodied,  in  sub- 
stance, in  the  constitutions  of  nearly  all,  if  not  all,  of  the  States 
at  the  time  of  the  adoption  of  the  Fourteenth  Amendment;  and  it 
has  never  been  regarded  as  incompatible  with  the  principle,  equally 
vital,  because  essential  to  the  peace  and  safety  of  society,  that  all 
property  in  this  country  is  held  under  the  implied  obligation  that 
the  owner's  use  of  it  shall  not  be  injurious  to  the  community.  Beer 
Co.  V.  Massachusetts,  97  U.  S.  25,  32;  Commonwealth  v.  Alger, 
7  Cush.  53. 

[The  court  refers  to  Patterson  v.  Kentucky,  97  U.  S.  501,  sifpra, 
p.  489,  and  other  cases.] 

As  already  stated,  the  present  case  must  be  governed  by  princi- 
ples that  do  not  involve  the  power  of  eminent  domain,  in  the  exer- 
cise of   which  property  may  not  be  taken  for  public  use  without 


SECT.  IV.  C]  MUGLER   V.    KANSAS.  945 

compensation.  A  prohibition  simply  upon  the  use  of  property  for 
purposes  that  are  dechired,  by  valid  legislation,  to  be  injurious  to 
the  health,  morals,  or  safety  of  the  coniniunity,  cannot,  in  any  just 
sense,  be  deemed  a  taking  or  an  appropriation  of  property  for  the 
public  benefit.  Such  legislation  does  not  disturb  the  owner  in  the 
control  or  use  of  his  property  for  lawful  purposes,  nor  restrict  his 
right  to  dispose  of  it,  but  is  only  a  declaration  by  the  State  that 
its  use  by  any  one,  for  certain  forbidden  purposes,  is  prejudicial  to 
the  public  interests.  Nor  can  legislation  of  that  character  come 
within  the  Fourteenth  Amendment,  in  any  case,  unless  it  is  apparent 
that  its  real  object  is  not  to  protect  the  community,  or  to  promote 
the  general  well-being,  but,  under  the  guise  of  police  regulation,  to 
deprive  the  owner  of  his  liberty  and  property,  without  due  process 
of  law.  The  power  which  the  States  have  of  prohibiting  such  use 
by  individuals  of  their  property  as  will  be  prejudicial  to  the  health, 
the  morals,  or  the  safety  of  the  public,  is  not  —  and,  consistently 
with  the  existence  and  safety  of  organized  society,  cannot  be  — 
burdened  with  the  condition  that  the  State  must  compensate  such 
individual  owners  for  pecuniary  losses  they  may  sustain,  by  reason 
of  their  not  being  permitted,  by  a  noxious  use  of  their  property, 
to  ijiiftict  injury  upon  the  community.  The  exercise  of  the  police 
power  by  the  destruction  of  property  which  is  itself  a  public  nui- 
sance, or  the  prohibition  of  its  use  in  a  particular  way,  whereby 
its  value  becomes  depreciated,  is  very  different  from  taking  property 
for  public  use,  or  from  depriving  a  person  of  his  property  without 
due  process  of  law.  In  the  one  case,  a  nuisance  only  is  abated;  in 
the  other,  unoffending  property  is  taken  away  from  an  innoeent 
owner. 

It  is  true,  that,  when  the  defendants  in  these  cases  purchased  or 
erected  their  breweries,  the  laws  of  the  State  did  not  forbid  the 
manufacture  of  intoxicating  liquors.  But  the  State  did  not  thereby 
give  any  assurance,  or  come  under  an  obligation,  that  its  legislation 
upon  that  subject  would  remain  unchanged.  Indeed,  as  was  said 
in  Stone  v.  Mississippi,  101  U.  S.  814,  the  supervision  of  the  public 
health  and  the  public  morals  is  a  governmental  power,  "continuing 
in  its  nature,"  and  "to  be  dealt  with  as  the  special  exigencies  of 
the  moment  may  require;  "  and  that,  "for  this  ])urpose,  the  largest 
legislative  discretion  is  allowed,  and  the  discretion  cannot  be  parted 
with  any  more  than  the  power  itself."  So  in  Beer  Co.  v.  Massa- 
chusetts, 97  U.  S.  32:  "If  the  public  safety  or  the  public  morals 
require  the  discontinuance  of  any  manufacture  or  traffic,  the  hand 
of  the  legislature  cannot  be  stayed  from  providing  for  its  discontin- 
uance by  any  incidental  inconvenience  which  individuals  or  corpo- 
rations may  suffer," 

[Another  question  arising  under  a  distinct  provision  of  the 
Kansas  statute  is  considered,  but  the  judgment  of  the  court  is 
affirmed.] 

60 


946  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [CHAP.  XIII. 

MUNN  V.   ILLINOIS. 
94  United  States,  113.     1876. 

[This  was  a  prosecution  iu  the  Criminal  Court  of  Cook  County, 
Illinois,  against  plaintiff  in  error  for  operating  a  grain  warehouse 
and  elevator  within  the  city  of  Chicago  without  obtaining  a  permit, 
as  required  by  a  State  statute  passed  in  conformity  with  article  13 
of  the  Constitution  of  Illinois,  adopted  in  1870,  which  declares  that 
all  elevators  or  warehouses  wherein  grain  or  other  property  is  stored 
for  a  compensation  are  public  warehouses.  The  statute  requires  that 
any  person  operating  such  warehouses  and  elevators  within  any  city 
of  more  than  one  hundred  thousand  population  shall  procure  a  license 
from  the  Circuit  Court  of  the  county  permitting  him  to  transact 
business  as  a  public  warehouseman,  and  provides  a  maximum  charge 
for  the  storage  and  handling  of  grain  received  into  such  warehouse 
or  elevator.  Defendant,  being  found  guilty  and  fined  under  the 
provisions  of  the  statute,  appealed  to  the  Supreme  Court  of  the 
StatCj  where  the  judgment  of  the  lower  court  was  affirmed,  and 
thereupon  sued  out  this  writ  of  error.] 

Mk.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  general 
assembly  of  Illinois  can,  under  the  limitations  upon  the  legislative 
power  of  the  States  imposed  by  the  Constitution  of  the  United 
States,  fix  by  law  the  maximum  of  charges  for  the  storage  of  grain 
in  warehouses  at  Chicago  and  other  places  in  the  State  having  not 
less  than  one  hundred  thousand  inhabitants,  "in  which  grain  is 
stored  in  bulk,  and  in  which  the  grain  of  different  owners  is  mixed 
together,  or  in  which  grain  is  stored  in  such  a  manner  that  the  iden- 
tity of  different  lots  or  parcels  cannot  be  accurately  preserved." 

[The  objection  to  the  statute  which  the  court  considers  is  based 
upon  that  portion  of  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States  which  provides  that  no  State  shall  "  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws."] 

The  Constitution  contains  no  definition  of  the  word  "deprive,"  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
therefore,  it  is.  necessary  to  ascertain  the  effect  which  usage  has 
given  it,  when  employed  in  the  same  or  a  like  connection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution 
of  the  United  States,  as  a  limitation  upon  the  powers  of  the  States, 
it  is  old  as  a  principle  of  civilized  government.  It  is  found  in 
Magna  Charta  and,  in  substance  if  not  in  form,  in  nearly  or  quite 
all  the  constitutions  that  have  been  from  time  to  time  adopted  by 
the  several  States  of  the  Union.     By  the  Fifth  Amendment  it  was 


SECT.  IV.  c]  MUNN   V.    ILLINOIS.  947 

introduced  into  the  Constitution  of  the  United  States  as  a  limi- 
tation upon  the  powers  of  the  national  government,  and  by  the 
Fourteenth,  as  a  guaranty  against  any  encroachment  upon  an  ac- 
knowledged right  of  citizenship  by  the  legislatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all  the 
powers  of  the  British  Parliament,  and  through  their  State  constitu- 
tions, or  other  forms  of  social  compact,  undertook  to  give  practical 
effect  to  such  as  they  deemed  necessary  for  the  common  good  and 
the  security  of  life  and  property.  All  the  powers  which  they  re- 
tained they  committed  to  their  respective  States,  unless  in  express 
terras  or  by  implication  reserved  to  themselves.  Subsequently, 
when  it  was  found  necessary  to  establish  a  national  government 
for  national  purposes,  a  part  of  the  powers  of  the  States  and  of 
the  people  of  the  States  was  granted  to  the  United  States  and  the 
people  of  the  United  States.  This  grant  operated  as  a  further 
limitation  upon  the  powers  of  the  States,  so  that  now  the  govern- 
ments of  the  States  possess  all  the  powers  of  the  Parliament  of 
England,  except  such  as  have  been  delegated  to  the  United  States 
or  reserved  by  the  people.  The  reservations  by  the  people  are 
shown  in  the  prohibitions  of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts  wnth 
some  rights  or  privileges  which,  as  an  individual  not  affected  by 
his  relations  to  others,  he  might  retain.  "A  body  politic,"  as  aptly 
defined  in  the  preamble  of  the  constitution  of  Massachusetts,  "  is  a 
social  compact  by  which  the  whole  people  covenants  with  each 
citizen,  and  each  citizen  with  the  whole  people,  that  all  shall  be 
governed  by  certain  laws  for  the  common  good."  This  does  not 
confer  power  upon  the  whole  people  to  control  rights  which  are 
purely  and  exclusively  private  (Thorpe  v.  R.  &  B.  Railroad  Co., 
27  Vt.  143)  ;  but  it  does  authorize  the  establishment  of  laws  requiring 
each  citizen  to  so  conduct  himself,  and  so  use  his  own  property,  as 
not  unnecessarily  to  injure  another.  This  is  the  very  essence  of 
government,  and  has  found  expression  in  the  maxim  .<j/c  xitere  tuo 
ut  alienum  non  Icedas.  From  this  source  come  the  police  powers, 
which,  as  was  said  by  Mr.  Chief  Justice  Taney  in  the  License 
Cases,  5  How.  583,  "are  nothing  more  or  less  than  the  powers  of 
government  inherent  in  every  sovereignty,  .  .  .  that  is  to  say, 
.  .  .  the  power  to  govern  men  and  things."  Under  these  powers 
the  government  regulates  the  conduct  of  its  citizens  one  tow^ards 
another,  and  the  manner  in  which  each  shall  use  his  own  property, 
when  such  regulation  becomes  necessary  for  the  public  good.  In 
their  exercise  it  has  been  customary  in  England  from  time  imme- 
morial, and  in  this  country  from  its  first  colonization,  to  regulate 
ferries,  common  carriers,  hackmen,  bakers,  millers,  wharfingers, 
innkeepers,  &c.,  and  in  so  doing  to  fix  a  maximum  of  charge  to  be 


948  CIVIL    RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 

made  for  services  rendered,  accommodations  furnished,  and  articles 
sold.  To  this  day,  statutes  are  to  be  found  in  many  of  the  States 
upon  some  or  all  these  subjects ;  and  we  think  it  has  never  yet  been 
successfully  contended  that  such  legislation  came  within  any  of  the 
constitutional  prohibitions  against  interference  witn  private  prop- 
erty. With  the  Fifth  Amendment  in  force,  Congress,  in  1820,  con- 
ferred power  upon  the  city  of  Washington  "to. regulate  .  .  .  the 
rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping  of  chim- 
neys, and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the  weight  and 
quality  of  bread  "  (3  Stat.  587,  sect.  7) ;  and,  in  1848,  "  to  make  all 
ne3essary  regulations  respecting  hackney  carriages  and  the  rates 
of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagoners, 
carmen,  and  draymen,  and  the  rates  of  commission  of  auctioneers  " 
(9  Stat.  224,  sect.  2). 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes  regu- 
lating the  use,  or  even  the  price  of  the  use,  of  private  property 
necessarily  deprived  an  owner  of  his  property  without  due  process 
of  law.  Under  some  circumstances  they  may,  but  not  under  all. 
The  amendment  does  not  change  the  law  in  this  particular;  it 
simply  prevents  the  States  from  doing  that  which  wull  operate  as 
such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what  is 
within  and  what  without  its  operative  effect.  Looking,  then,  to  the 
common  law,  from  whence  came  the  right  which  the  Constitution 
protects,  we  find  that  when  private  property  is  "affected  with  a 
public  interest,  it  ceases  to  he  juris  privati  only."  This  was  said  by 
Lord  Chief  Justice  Hale  more  than  two  hundred  years  ago,  in  his 
treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts,  78,  and  has  been 
accepted  without  objection  as  an  essential  element  in  the  law  of 
property  ever  since.  Property  does  become  clothed  with  a  public 
interest  when  used  in  a  manner  to  make  it  of  public  consequence, 
and  aifect  the  community  at  large.  When,  therefore,  one  devotes 
his  property  to  a  use  in  which  the  public  has  an  icterest,  he,  in 
effect,  grants  to  the  public  an  interest  in  that  use,  and  must  submit 
to  be  controlled  by  the  public  for  the  common  good,  to  the  extent  of 
the  interest  he  has  thus  created.  He  may  withdraw  his  grant  by 
discontinuing  the  use;  but,  so  long  as  he  maintains  the  use,  he  must 
submit  to  the  control. 

[The  writings  of  Lord  Hale  are  referred  to,  and  also  some  English 
cases,  tending  to  show  that  property  used  for  ferries,  wharves, 
warehouses,  and  the  like,  though  belonging  to  private  individuals, 
was  clothed  with  a  public  right,  and  was  therefore  subject  to  legis- 
lative regulation.] 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  England  as  long  ago  as  the 


SECT.  IV.  c]  MUNN   V.    ILLINOIS.  949 

third  year  of  the  reiga  of  William  and  Mary,  and  continued  until 
within  a  comparatively  recent  period.  And  in  the  first  statute  we 
find  the  following  suggestive  preamble,  to  Avit:  — 

"And  whereas  divers  wagoners  and  other  carriers,  by  combina- 
tion amongst  themselves,  have  raised  the  prices  of  carriage  of  goods 
in  many  places  to  excessive  rates,  to  the  great  injury  of  the  trade : 
Be  it,  therefore,  enacted,"  &c.  3  W.  &  M.  c.  12,  §  24;  3  Stat,  at 
Large  (Great  Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  New  Jersey  [N'av.  Co. 
V.  Merchants'  Bank,  6  How.  382.  Their  business  is,  therefore, 
"affected  with  a  public  interest,"  within  the  meaning  of  the  doc- 
trine which  Lord  Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 
subject  to  public  regulation.  It  remains  only  to  ascertain  whether 
the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which  is 
carried  on  there,  come  within  the  operation  of  this  principle. 

[The  nature  of  the  legislation  of  Illinois  with  reference  to  grain 
elevators  is  discussed.] 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regula- 
tions complained  of  were  adopted.  What  they  did  was  from  the 
beginning  subject  to  the  power  of  the  body  politic  to  require  them 
to  conform  to  such  regulations  as  might  be  established  by  the  proper 
authorities  for  the  common  good.  They  entered  upon  their  busi- 
ness and  provided  themselves  with  the  means  to  carry  it  on  subject 
to  this  condition.  If  they  did  not  wish  to  submit  themselves  to 
such  interference,  they  should  not  have  clothed  the  public  with  an 
interest  in  their  concerns.  The  same  principle  applies  to  them  that 
does  to  the  proprietor  of  a  hackney-carriage,  and  as  to  him  it  has 
never  been  supposed  that  he  was  exempt  from  regulating  statutes 
or  ordinances  because  he  had  purchased  his  horses  and  carriage  and 
established  his  business  before  the  statute  or  the  ordinance  was 
adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to 
a  reasonable  compensation  for  its  use,  even  though  it  be  clothed 
with  a  public  interest,  and  that  what  is  reasonable  is  a  judicial  and 
not  a  legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise.  In 
countries  where  the  common  law  prevails,  it  has  been  customary 
from  time  immemorial  for  the  legislature  to  declare  what  shall  be 
a  reasonable  com])ensation  under  such  circumstances,  or,  perhaps 
more  properly  speaking,  to  fix  a  maximum  beyond  which  any 
charge  made  would  be  unreasonable.  Undoubtedly,  in  mere  private 
contracts,  relating  to  matters  in  which  the  public  has  no  interest, 
what  is  reasonable  must  be  ascertained  judicially.     But  this  is  be- 


950  CIVIL   RIGHTS   AND    THEIR   GUARANTIES.        [CHAP,  -XIII. 

cause  the  legislature  has  no  control  over  such  a  contract.  So,  too, 
in  matters  which  do  affect  the  public  interest,  and  as  to  which  legis- 
lative control  may  be  exercised,  if  there  are  no  statutory  regulations 
upon  the  subject,  the  courts  must  determine  what  is  reasonable. 
The  controlling  fact  is  the  power  to  regulate  at  all.  If  that  exists, 
the  right  to  establish  the  maximum  of  charge,  as  one  of  the  means 
of  regulation,  is  implied.  In  fact,  the  common-law  rule,  which  re- 
quires the  charge  to  be  reasonable,  is  itself  a  regulation  as  to  price. 
Without  it  the  owner  could  make  his  rates  at  will,  and  compel  the 
public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest, 
in  any  rule  of  the  common  law.  That  is  only  one  of  the  forms  of 
municipal  law,  and  is  no  more  sacred  than  any  other.  Rights  of 
property  which  have  been  created  by  the  common  law  cannot  be 
taken  away  without  due  process;  but  the  law  itself,  as  a  rule  of 
conduct,  may  be  changed  at  the  will,  or  even  at  the  whim,  of  the 
legislature,  unless  prevented  by  constitutional  limitations.  Indeed, 
the  great  office  of  statutes  is  to  remedy  defects  in  the  common  law 
as  they  are  developed,  and  to  adapt  it  to  the  changes  of  time  and 
circumstances.  To  limit  the  rate  of  charge  for  services  rendered  in 
a  public  employment,  or  for  the  use  of  property  in  which  the  public 
has  an  interest,  is  only  changing  a  regulation  which  existed  before. 
It  establishes  no  new  principle  in  the  law,  but  only  gives  a  new 
effect  to  an  old  one. 

We  know  that  this  is  a  power  which  may  be  abused;  but  that  is 
no  argument  against  its  existence.  For  protection  against  abuses 
by  legislatures  the  people  must  resort  to  the  polls,  not  to  the  courts. 

After  what  has  already  been  said,  it  is  unnecessary  to  refer  at 
length  to  the  effect  of  the  other  provision  of  the  Fourteenth  Amend- 
ment which  is  relied  upon,  viz.,  that  no  State  shall  "deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws." 
Certainly,  it  cannot  be  claimed  that  this  prevents  the  State  from 
regulating  the  fares  of  hackmen  or  the  charges  of  draymen  in 
Chicago,  unless  it  does  the  same  thing  in  every  other  place  within 
its  jurisdiction.  But,  as  has  been  seen,  the  power  to  regulate  the 
business  of  warehouses  depends  upon  the  same  principle  as  the 
power  to  regulate  hackmen  and  draymen,  and  what  cannot  be  done 
in  the  one  case  in  this  particular  cannot  be  done  in  the  other. 

[The  validity  of  the  Illinois  legislation  as  affecting  interstate 
commerce  and  as  tending  to  give  a  preference  to  the  ports  of  one 
State  over  those  of  another  is  briefly  considered,  but  the  judgment 
of  the  Supreme  Court  of  Illinois  is  affirmed.^] 

1  Mr.  Justice  Field  delivered  a  dissenting  opinion,  in  which  Mr.  Justice  Strong 
concurred.     In  the  course  of  this  opinion  the  following  language  is  used  :  — 

"  The  power  of  the  State  over  the  property  of  the  citizen  under  the  constitutional 
guaranty  is  well  defined.    The  State  may  take  his  property  for  public  uses,  upon  just 


SECT.  IV.  C]  BDDD    V.   NEW    YORK.  951 

compensation  being  made  therefor.  It  may  take  a  portion  of  his  property  by  way  of 
taxation  for  the  support  of  the  government.  It  may  control  the  use  and  pusset^sioa 
of  his  property,  so  far  as  may  be  necessary  for  the  protection  of  the  riyhts  of  others, 
and  to  secure  to  them  the  equal  use  and  enjoyment  of  their  property.  The-  doctrine 
that  each  one  must  so  use  his  own  as  not  to  injure  his  neighbor  —  sic  utere  luo  ut  ulit- 
num  non  Uedas  —  is  the  rule  by  which  every  member  of  society  must  possess  and  enjoy 
his  property;  and  all  legislation  essential  to  secure  this  common  and  equal  enjoyment 
is  a  legitimate  exercise  of  State  authority.  Except  in  cases  where  property  may  be 
destroyed  to  arrest  a  conflagration  or  the  ravages  of  pestilence,  or  be  taken  under  the 
pressure  of  an  immediate  and  overwhel.iiing  necessity  to  prevent  a  public  calamity, 
the  power  of  the  State  over  the  property  of  the  citizen  does  not  extend  beyond  such 
limits. 

"  It  is  true  that  the  legislation  which  secures  to  all  protection  in  tlieir  rights,  and 
the  equal  use  and  enjoyment  of  their  property,  embraces  an  almost  infinite  variety  of 
subjects.  Whatever  affects  the  peace,  good  order,  morals,  and  health  of  the  commu- 
nity, comes  within  its  scope ;  and  every  one  must  use  and  enjoy  his  property  subject 
to  the  restrictions  which  such  legislation  imposes.  What  is  termed  the  police  power 
of  the  State,  which,  from  the  language  often  used  respecting  it,  one  would  suppose  to 
be  an  undefined  and  irresponsible  element  in  government,  can  only  interfere  with  the 
conduct  of  individuals  in  their  intercourse  with  each  other,  and  in  tlie  use  of  their 
property,  so  far  as  may  be  required  to  secure  these  objects.  The  compensation  which 
the  owners  of  property,  not  having  any  special  rights  or  prvileges  from  the  govern- 
ment in  connection  with  it,  may  demand  for  its  use,  or  for  their  own  services  in  union 
with  it,  forms  no  element  of  consideration  in  prescribing  regulations  for  that  purpose. 
If  on&  construct  a  building  in  a  city,  the  State,  or  the  municipality  exercising  a  dele- 
gated power  from  the  State,  may  require  its  walls  to  be  of  sufficient  thickness  for  the 
uses  intended  ;  it  may  forbid  the  employment  of  inflammable  materials  in  its  construc- 
tion, so  as  not  to  endanger  the  safety  of  his  neighbors ;  if  designed  as  a  theatre,  church, 
or  public  hall,  it  may  prescribe  ample  means  of  egress,  so  as  to  afford  facility  for  escape 
in  case  of  accident ;  it  may  forbid  the  storage  in  it  of  powder,  nitro-glycerine,  or  other 
explosive  material ;  it  may  require  its  occupants  daily  to  remove  decaved  vegetable 
and  animal  matter,  which  would  otherwise  accumulate  and  engender  disease ;  it  may 
exclude  from  it  all  occupations  and  business  calculated  to  disturb  the  neighborhood  or 
infect  the  air.  Indeed,  there  is  no  end  of  regulations  with  respect  to  the  use  of  prop- 
erty which  may  not  be  legitimately  prescribed,  liaving  for  their  object  the  peace,  good 
order,  safety,  and  health  of  the  community,  thus  securing  to  all  the  equal  enjoyment 
of  their  property ;  but  in  establishing  these  regulations  it  is  evident  that  compensation 
to  the  owner  for  the  use  of  his  property,  or  for  his  services  in  union  with  it.  is  not  a 
matter  of  any  importance :  whether  it  be  one  sum  or  another  does  not  affect  the  regu- 
lation, either  in  respect  to  its  utility  or  mode  of  enforcement  One  mav  go,  in  like 
manner,  through  the  whole  round  of  regulations  authorized  by  legislation,  State  or 
municipal,  under  what  is  termed  the  police  power,  and  in  no  instance  will  he  find  that 
tlie  compensation  of  the  owner  for  the  use  of  his  property  has  any  influence  in  estab- 
lishing them.  It  is  only  wiiere  some  riglit  or  privilege  is  conferred  by  the  government 
or  municipality  upon  the  owner,  which  he  can  use  in  connection  with  his  property,  or 
by  means  of  which  the  use  of  his  property  is  rendered  more  valuable  to  him,  or  he 
thereby  enjoys  an  advantage  over  others,  that  the  compen.sation  to  be  received  by  him 
becomes  a  legitimate  matter  of  regulation.  Submission  to  the  regulation  of  compen- 
sation in  such  cases  is  an  implied  condition  of  the  grant,  and  the  State,  in  exercising 
its  power  of  prescribing  the  compensation,  only  determines  the  conditions  upon  which 
its  concession  shall  be  enjoyed.  When  the  privilege  ends,  the  power  of  regulation 
ceases." 

In  BuDD  u.  New  York,  143  U.  S.  517  (1892),  the  court  again  considered  the  same 
question,  and  adhered  to  the  decision  in  Munn  v.  Illinoi.s.  Mr.  Justice  Brewer 
(with  whom  concurred  Mr.  Justice  Field  and  Mr.  .Justice  Brown)  delivered  a 
dissenting  opinion,  in  which  the  following  language  is  used  :  — 

"I  dissent  from  the  opinion  and  judgment  in  these  cases.  The  main  proposition 
upon  which  they  rest  is,  in  my  judgment,  radically  unsound.     It  is  the  doctrine  of 


952 


CIVIL    RIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  XIII. 


Munn  V.  Illinois,  94  U.  S.  113,  reafiBrmed.  That  is,  as  declared  in  the  syllabus  and 
stated  in  the  opinion  in  that  case  :  '  When,  therefore,  one  devotes  his  property  to  a  use 
in  which  the  public  has  an  interest,  he,  in  effect,  grants  to  the  puldic  an  interest  in 
that  use,  and  must  submit  to  he  controlled  by  the  public  for  the  comuiou  good,  to  the 
extent  of  the  interest  he  has  thus  created.'  The  elaborate  discussions  of  tiie  question 
in  the  dissentiu'''  opinions  in  that  case,  and  the  present  cases  when  under  considera- 
tion in  tlie  Court  of  Appeals  of  the  State  of  New  York,  seem  to  forbid  anything  more 
than  a  general  declaration  of  dissent.  The  vice  of  the  doctrine  is,  that  it  places  a  pub- 
lic interest  in  the  use  of  property  upon  the  same  basis  as  a  public  use  of  property. 
Property  is  devoted  to  a  public  use  when,  and  only  when,  tlie  use  is  one  which  the 
public  in  its  organized  capacity,  to  wit,  the  State,  has  a  right  to  create  and  maintain, 
and,  therefore,  one  which  all  the  public  have  a  right  to  demand  and  share  in.  The 
use  is  public,  because  the  public  may  create  it,  and  the  individual  creating  it  is  doing 
thereby  and  pro  tanto  the  work  of  the  State.  The  creation  of  all  highways  is  a  public 
duty.  Railroads  are  highways.  The  State  may  build  them.  If  an  individual  does 
that  work,  he  is  pro  lauto  doing  the  work  of  tlie  State.  He  devotes  his  property  to  a 
public  use.  The  State  doing  the  work  fixes  the  price  for  the  use.  It  does  not  lose 
the  right  to  fix  the  price,  because  an  individual  voluntarily  undertakes  to  do  the  work. 
But  tiiis  public  use  is  very  different  from  a  public  interest  in  the  use.  There  is 
scarcely  anv  property  in  whose  use  the  public  has  no  interest.  No  man  liveth  unto 
himself  alone,  and  no  man's  property  is  beyond  the  touch  of  another's  welfare. 
Everything,  the  manner  and  extent  of  whose  use  affects  the  well-being  of  others,  is 
property  in  whose  use  the  public  has  an  interest.  Take,  for  instance,  the  only  store  in 
a  little  Village.  All  the  public  of  that  village  are  interested  in  it;  intere.sted  in  the 
quantity  and  quality  of  the  goods  on  its  shelves,  and  their  prices,  in  the  time  at  which 
it  opens  and  closes.'and,  generally,  in  the  way  in  which  it  is  managed ;  in  short,  inter- 
ested in  the  use.  Does  it  follow  that  that  village  public  has  a  right  to  control  these 
matters  ?  That  which  is  true  of  the  single  small  store  in  the  village,  is  also  true  of 
the  largest  mercantile  establishment  in  the  great  city.  The  magnitude  of  the  business 
does  not  change  the  principle.  There  may  be  more  individuals  intere.sted,  a  larger 
public,  but  stTll  the  public.  The  country  merchant  who  has  a  small  warehouse  in 
which  the  neighboring  farmers  are  wont  to  store  their  potatoes  and  grain  preparatory 
to  shipment  occupies  the  same  position  as  the  proprietor  of  the  largest  elevator  in 
New  York.  The  public  has  in  each  case  an  interest  in  the  use,  and  the  same  interest, 
no  more  and  no  less.  I  cannot  bring  myself  to  believe  that  when  the  owner  of  prop- 
erty has  by  his  industry,  skill,  and  money  made  a  certain  piece  of  his  property  of  large 
value  to  many,  he  has  thereby  deprived  himself  of  the  full  dominion  over  it  which  he 
had  when  it  was  of  comparatively  little  value ;  nor  can  I  believe  that  the  control  of  tlie 
public  over  one's  property  or  business  is  at  all  dependent  upon  the  extent  to  which  the 
public  is  benefited  by  it. 

"  Surely  the  matters  in  which  the  public  has  the  most  interest  are  the  snpjdies  of 
food  and  'clothing;  vet  can  it  be  that  by  reason  of  this  interest  the  State  may  fix  the 
price  at  which  the  butcher  must  sell  his  meat,  or  the  vendor  of  boots  and  shoes  his 
goods  »  Men  are  endowed  by  their  Creator  with  certain  unalienable  rights,  '  life, 
liberty,  and  the  pursuit  of  happiness ; '  and  to  '  secure.'  not  grant  or  create,  these 
ri-rhts  governments  are  instituted.  That  property  which  a  man  has  honestly  acquired 
he  retains  full  control  of.  subject  to  these  limitations  :  First,  that  he  shall  not  use  it  to 
his  neighbor's  injury,  and  that  does  not  mean  that  he  mnst  use  it  for  his  neighbors 
benefit ;  second,  that  if  he  devotes  it  to  a  public  use.  he  gives  to  the  pubhc  a  right  to 
control  that  use;  and.  third,  that  whenever  the  public  needs  require,  the  public  may 
take  it  upon  payment  of  due  compensation. 

"It  is  suggested  that  there  is  a  monopoly,  and  that  that  justifies  legislative  inter- 
ference. There  are  two  kinds  of  monopoly :  one  of  law,  the  other  of  fact.  The  one 
exists  Avhen  exclusive  privileges  are  granted.  Such  a  monopoly,  the  law  which  creates 
alone  can  break ;  and  being  the  creation  of  law  justifies  legislative  control.  A  mo- 
nopoly of  fact  anv  one  can  break,  and  there  is  no  necessity  for  legislative  interference. 
It  exists  where  anv  one  by  his  money  and  labor  furnishes  facilities  for  business  which 
no  one  else  has.     A  man  puts  up  in  a  city  the  only  building  suitable  for  offices.     He 


SECT.  IV.  C]       SPRING    VALLEY   WATER   WORKS   V.    SCHOTTLER.  953 

has  therefore  a  monopoly  of  that  bn.--iness ;  but  it  is  a  monopoly  of  fact,  which  any 
one  can  break  who,  with  like  business  courage,  puts  his  means  into  a  similar  building. 
Because  of  the  monopoly  feature,  subject  thus  easily  to  be  broken,  may  tiie  legiskture 
regulate  the  jtrice  at  which  he  will  lease  his  offices  ?  So,  here,  there  are  uo  exclusive 
privileges  given  to  these  elevators.  They  are  not  upon  pul)lic  ground.  If  the  busi- 
ness is  profitable,  any  one  can  build  another;  the  field  is  open  for  all  the  elevators,  and 
all  the  competition  that  may  be  desired.  If  there  be  a  monopoly,  it  is  one  of  fact  and 
not  of  law,  and  one  which  any  individual  can  break. 

"  The  paternal  theory  of  government  is  to  me  odious.  The  utmost  possible  liberty 
to  t!)e  indiviilual,  and  tlie  fullest  possible  protection  to  him  and  his  property,  is  both 
the  limitation  and  duty  of  government.  If  it  m.ay  regulate  the  price  of  one  service, 
which  is  not  a  public  service,  or  the  compensation  for  the  use  of  one  kind  of  property 
which  is  not  devoted  to  a  public  use,  why  may  it  not  with  equal  reason  regulate  the 
price  of  all  service,  and  the  compensation  to  be  paid  for  tlie  use  of  all  property  ?  And 
if  so,  '  Looking  Backward  '  is  nearer  than  a  dream. 

"  I  dissent  especially  in  these  cases,  because  the  statute  in  effect  compels  service 
without  any  compensation.  It  provides  that  the  parties  seeking  the  service  of  the  ele- 
vator 'shall  only  he  required  to  pay  the  actual  cost  of  trimming  or  shovelling  to  the 
leg  of  the  elevator  when  unloading,  and  trimming  cargo  when  loading.'  This  work 
of  trimming  or  shovelling  is  fully  explained  in  the  briefs  of  counsel.  It  is  work  per- 
formed by  longshoremen  with  hand-scoops  or  shovels,  on  the  vessel  unloading  or 
receiving  the  grain.  They  are  not  in  the  regular  employ  of  the  elevator ;  but  engaged 
in  an  independent  service,  and  yet  one  whosa  careful  and  skilful  performance  is  essen- 
tial to  the  successful  transfer  of  grain  into  and  through  the  elevator.  The  full  service 
required  of  the  elevator  compels  its  proprietor  to  employ  and  superintend  the  work 
of  these  longshoremen.  For  this  work  of  employment,  au<l  superintendence,  and  for 
the  responsibility  for  the  proper  performance  of  their  work,  the  act  says  that  tlie  pro- 
prietor of  the  elevator  shall  receive  no  compensation ;  he  can  charge  only  that  which 
he  pays  out,  the  actual  cost.  I  had  supposed  that  no  man  could  be  required  to  render 
any  service  to  another  individual  without  some  compensation." 

In  Brass  v.  Stoeser,  153  U.  S.  391  (1894),  the  same  question  was  again  consid- 
ered, and  Munn  v.  Illinois  was  reaffirmed.  Mr.  Justice  Brewer  (with  whom 
concurred  Mr.  Justice  Field,  Mr.  Justice  Jacksox,  and  Mr.  Justice  White), 
delivered  a  dissenting  opinion,  reaffirming  the  dissent  in  Munn  v.  Illinois  and  Budd 
V.  New  York. 

In  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347  (1884),  the  validity 
of  a  statute  of  California  requiring  corporations  formed  for  the  purpose  of  supplying 
cities  with  water  to  do  so  at  reasonable  rates  and  without  discrimination,  such  rates 
to  be  determined  by  a  board  of  commissioners,  was  questioned  as  in  violation  of  the 
Fourteenth  Amendment.  Mr.  Chief  Justice  Waite,  delivering  the  opinion  of  the 
court  (Mr.  Justice  Field  dissenting),  used  this  language:  — 

"Tliat  it  is  within  the  power  of  the  government  to  regulate  the  prices  at  which 
water  shall  be  sold  by  one  who  enjoys  a  virtual  monopoly  of  the  sale,  we  do  not  doubt. 
That  question  is  settled  by  what  was  decided  on  full  consideration  in  Munn  v.  Illinois, 
94  U.  S.  113.  As  was  said  in  that  case,  such  regulations  do  not  deprive  a  person  of 
his  property  without  due  process  of  law.  What  may  be  done  if  the  municipal  authori- 
ties do  not  exercise  an  honest  judgment,  or  if  they  fix  upon  a  price  which  is  manifestly 
unreasonable,  need  not  now  be  considered,  for  that  proposition  is  not  presented  by  this 
record.  The  objection  here  is  not  to  any  improper  prices  fixed  by  the  officers,  but  to 
their  power  to  fix  prices  at  all.  By  the  Constitution  and  the  legislation  under  it,  the 
municipal  authorities  have  been  created  a  special  tribunal  to  determine  what,  as  be- 
tween the  public  and  the  company,  shall  be  deemed  a  reasonable  price  during  a  certain 
limited  period.  Like  every  other  tribunal  established  by  the  legislature  for  such  a 
purpose,  their  duties  are  judicial  in  their  nature,  and  they  are  bound  in  morals  and  in 
law  to  exercise  an  honest  judgment  as  to  all  matters  submitted  for  their  official  deter- 
mination. It  is  not  to  be  presumed  that  they  will  act  otherwise  than  according  to  this 
rule.  And  here  again  it  is  to  be  kept  in  mind  that  the  question  before  us  is  not  as  to 
the  penalties  to  be  inflicted  on  the  company  for  a  failure  to  sell  at  tlie  prices  fixed, 


954  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [CHAP.  XIII. 

SMYTH  V.  A^rES. 
169  United  States,  466.     1898. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

[The  plaintiffs  in  error  in  this  and  other  similar  cases  considered 
with  it,  were  defendants  in  the  Circuit  Court  of  the  United  States  for 
the  district  of  Nebraska  in  suits  brought  against  them  as  members 
and  officers  of  the  State  board  of  transportation  of  that  State  by  cer- 
tain railroad  corporations  and  certain  individuals,  stockholders  in 
such  companies,  all  being  citizens  of  other  States  or  aliens,  in  which 
it  was  sought  to  enjoin  the  members  and  officers  of  such  State  board 
of  transportation  from  enforcing  a  statute  of  Nebraska  passed  in 
1893,  in  which  it  was  attempted  to  regulate  railroads,  classify  freights, 
and  fix  reasonable  maximum  rates  to  be  charged  for  the  transporta- 
tion of  freight  upon  the  railroads  in  that  State.  The  constitution- 
ality  of  the  State  statute  was  assailed  on  the  ground  that  it  violated 
the  provisions  of  the  Fourteenth  Amendment.  From  decrees  in 
favor  of  plaintiffs  rendered  in  the  lower  court,  the  defendants  appeal. 
Prior  decisions  of  the  court  relating  to  the  power  of  the  legislature  to 
directly  regulate  railroad  rates  or  authorize  their  regulation  by  rail- 
road commissions  are  considered,  especially  Railroad  Commission 
Cases,  116  U.  S.  307,  and  Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154 
U.  S.  364.] 

In  view  of  the  adjudications  these  principles  must  be  regarded  as 
settled :  — 

1.  A  railroad  corporation  is  a  person  within  the  meaning  of  the 
Fourteenth  Amendment  declaring  that  no  State  shall  deprive  any  per- 
son of  property  without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

2.  A  State  enactment,  or  regulations  made  under  the  authority  of 
a  State  enactment,  establishing  rates  for  the  transportation  of  persons 
or  property  by  railroad  that  will  not  admit  of  the  carrier  earning 
such  compensation  as  under  all  the  circumstances  is  just  to  it  and  to 
the  public,  would  deprive  such  carrier  of  its  property  without  due 
process  of  law  and  deny  to  it  the  equal  protection  of  the  laws,  and 
would  therefore  be  repugnant  to  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States. 

3.  While  rates  for  the  transportation  of  persons  and  property 
within  the  limits  of  a  State  are  primarily  for  its  determination,  the 
question  whether  they  are  so  unreasonably  low  as  to  deprive  the  ear- 
but  as  to  the  power  to  fix  the  price ;  not  whether  the  company  shall  forfeit  its  prop- 
erty and  franchises  to  the  city  and  county  if  it  fails  to  meet  the  requirements  of  the 
Constitution,  but  whether  the  prices  it  sliall  charge  may  be  estahlislied  in  the  way 
provided  for  in  that  instrument.  It  will  be  time  enough  to  consider  the  consequences 
of  the  omissions  of  the  company  when  a  case  involving  such  questions  shall  be 
presented." 


SECT.  IV.  c]  SMYTH    V.    AMES.  955 

rier  of  its  property  without  such  compensation  as  the  Constitution 
secures,  and  therefore  without  due  process  of  law,  cannot  be  so  con- 
clusively determined  by  the  legislature  of  the  State  or  by  regulations 
adopted  under  its  authority,  that  the  matter  may  not  become  the  sub- 
ject of  judicial  inquiry. 

The  cases  before  us  directly  present  the  important  question  last 
stated. 

What  are  the  considerations  to  wliich  weight  must  be  given  when 
we  seek  to  ascertain  the  compensation  that  a  railroad  company  is 
entitled  to  receive,  and  a  prohibition  upon  the  receiving  of  which  may 
be  fairly  deemed  a  deprivation  by  legislative  decree  of  property  with- 
out due  process  of  law  ?  Undoubtedly  that  question  could  be  more 
easily  determined  by  a  commission  composed  of  persons  whose  special 
skill,  observation,  and  experience  qualities  them  to  so  handle  great 
problems  of  traiisiiortation  as  to  do  justice  both  to  the  public  and  to 
those  whose  money  has  been  used  to  construct  and  maintain  highways 
for  the  convenience  and  benelit  of  the  people.  But  despite  the  diffi- 
culties that  confessedly  attend  the  proper  solution  of  such  questions, 
the  court  cannot  shrink  from  the  duty  to  determine  whether  it  be 
true,  as  alleged,  that  the  Nebraska  statute  invades  or  destroys  rights 
secured  by  the  supreme  law  of  the  land.  No  one,  we  take  it,  will 
contend  that  a  State  enactment  is  in  harmony  with  that  law  simply 
because  the  legislature  of  the  State  has  declared  such  to  be  the  case ; 
for  that  would  make  the  State  legislature  the  final  judge  of  the 
validity  of  its  enactment,  although  the  Constitution  of  the  United 
States  and  the  laws  made  in  pursuance  thereof  are  the  supreme  law 
of  the  land,  anything  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding.  Art.  VI.  The  idea  that  any  legislature, 
State  or  Federal,  can  conclusively  determine  for  the  people  and  for 
the  courts  that  what  it  enacts  in  the  form  of  law,  or  what  it  author- 
izes its  agents  to  do,  is  consistent  with  the  fundamental  law,  is  in 
opposition  to  the  theory  of  our  institutions.  The  duty  rests  upon  all 
courts,  Federal  and  State,  when  their  jurisdiction  is  properly  invoked, 
to  see  to  it  that  no  right  secured  by  the  supreme  law  of  the  land  is 
impaired  or  destroyed  by  legislation.  This  function  and  duty  of  the 
judiciary  distinguishes  the  American  system  from  all  other  systems 
of  government.  The  perpetuity  of  our  institutions  and  the  liberty 
which  is  enjoyed  under  them  depend,  in  no  small  degree,  upon  the 
power  given  the  judiciary  to  declare  null  and  void  all  legislation  that 
is  clearly  repugnant  to  the  supreme  law  of  the  land. 

[The  court  then  considers  at  length  the  evidence  bearing  on  the 
question  whether  the  rates  fixed  by  the  State  statute  furnish  an  ade- 
quate compensation  for  the  use  of  the  property  of  the  railroads.] 

We  hold,  however,  that  the  basis  of  all  calculations  as  to  the 
reasonableness  of  rates  to  be  charged  by  a  cor})oration  maintaining  a 
highway  under  legislative  sanction  must  be  the  fair  value  of  the 


956  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [CHAP.  XIII. 

property  being  used  by  it  for  the  convenience  of  the  public.  And  in 
order  to  ascertain  tliat  value,  the  original  cost  of  construction,  the 
amount  expended  in  permanent  improvements,  the  amount  and  mar- 
ket value  of  its  bonds  and  stock,  the  present  as  compared  with  the 
original  cost  of  construction,  the  probable  earning  capacity  of  the 
property  under  particular  rates  prescribed  by  statute,  and  the  sum 
required  to  meet  operating  expenses,  are  all  matters  for  considera- 
tion, and  are  to  be  given  such  weight  as  may  be  just  and  right  in 
each  case.  We  do  not  say  that  there  may  not  be  other  matters  to  be 
regarded  in  estimating  the  value  of  the  property.  What  the  com- 
pany is  entitled  to  ask  is  a  fair  return  upon  the  value  of  that  which 
it  employs  for  the  public  convenience.  On  the  other  hand,  what  the 
public  is  entitled  to  demand  is  that  no  more  be  exacted  from  it  for 
the  use  of  a  public  highway  than  the  services  rendered  by  it  are 
reasonably  worth.  But  even  upon  this  basis,  and  determining  the 
probable  effect  of  the  act  of  1893  by  ascertaining  what  could  have 
been  its  effect  if  it  had  been  in  operation  during  the  three  years  im- 
mediately preceding  its  passage,  we  perceive  no  ground  on  the  record 
for  reversing  the  decree  of  the  Circuit  Court.  On  the  contrary,  we 
are  of  opinion  that  as  to  most  of  the  companies  in  question  there 
would  have  been,  under  such  rates  as  were  established  by  the  act  of 
1893,  an  actual  loss  in  each  of  the  years  ending  June  30,  1891,  1892, 
and  1893 ;  and  that,  in  the  exceptional  cases  above  stated,  when  two 
of  the  companies  would  have  earned  something  above  operating  ex- 
penses in  particular  years,  the  receipts  or  gains,  above  operating 
expenses,  would  have  been  too  small  to  affect  the  general  conclusion 
that  the  act,  if  enforced,  would  have  deprived  each  of  the  railroad 
companies  involved  in  these  suits  of  the  just  compensation  secured  to 
them  by  the  Constitution.  Under  the  evidence  there  is  no  ground 
for  saying  that  the  operating  expenses  of  any  of  the  companies  were 
greater  than  necessary. 

[The  decree  of  the  lower  court  in  each  case  is  affirmed.] 
[For  other  cases  relating  to  due  process  of  law,  equal  protection 
of  the  laws,  and  the  police  power,  see  cases  in  Appendix  C,  p.  12G0.] 


Section  V.  — Jury  Trial  in  Civil  Cases. 


CAPITAL   TRACTION   COMPANY   v.    HOF. 

171  United  States,  1.     1899. 

Mr.  Justice  Guay  delivered  the  opinion  of  the  court. 

[Plaintiff  in  error,  a  street  railway  corporation  in  the  District 
of  Columbia,  presented  to  the  Supreme  Court  of  the  District  a  peti- 
tion for  a  writ  of  certiorari  to  a  justice  of  the  peace,  to  prevent  a 


SECT,  v.]  CAPITAL    TRACTION    CO.    V,    HOP.  957 

civil  action  to  recover  damages  in  the  sum  of  .^300  from  being  tried 
by  jury  before  him.  It  appeared  that  defendant  in  that  proceeding 
had  previously  caused  a  summons  to  be  issued  by  one  of  the  jus- 
tices of  the  peace  in  and  for  the  District  of  Columbia,  summoning 
the  Traction  Company  to  appear  before  such  justice  to  answer  the 
complaint  of  said  Hof  in  a  plea  of  damage  in  ."^oOO,  and  on  the 
demand  of  the  attorney  of  said  Hof  for  a  jury  trial  before  such 
justice,  the  latter  issued  a  writ  for  the  summoning  of  a  jury, 
whereupon  the  Traction  Company  filed  its  petition  as  above,  con- 
tending that  in  such  proceeding  it  was  intended  to  subject  the  peti- 
tioner without  appeal  to  trial  before  a  justice  of  the  peace,  and  that 
if  the  action  before  the  justice  was  not  thus  prevented,  the  petitioner 
would  be  deprived  of  his  constitutional  right  to  a  trial  by  jury,  and 
would  be  in  danger  of  being  deprived  of  his  property  without  due 
process  of  law,  and  would  be  denied  the  equal  protection  of  the  law; 
and  petitioner  prayed  a  writ  of  certiorari  to  remove  Hof's  claim  into 
the  Supreme  Court  of  the  District  for  trial  according  to  the  course 
of  the  common  law,  &c.  The  Supreme  Court  of  the  District  having 
overruled  Hof's  motion  to  quash  the  writ  and  enter  an  order  quash- 
ing all  proceedings  before  the  justice  of  the  peace,  Hof  appealed  to 
the  Court  of  Appeals  of  the  District,  where  the  order  of  the  Su])reme 
Court  was  reversed  and  the  case  was  remanded  wuth  directions  to 
quash  the  writ.  The  Traction  Company  thereupon  brings  the  case 
to  this  court  by  writ  of  error.] 

I.  The  Congress  of  the  United  States,  being  empowered  by  the 
Constitution  "to  exercise  exclusive  legislation  in  all  cases  what- 
soever" over  the  seat  of  the  national  government,  has  the  entire 
control  over  the  District  of  Columbia  for  every  purpose  of  govern- 
ment, national  or  local.  It  may  exercise  within  the  District  all 
legislative  powers  that  the  legislature  of  a  State  might  exercise 
within  the  State;  and  may  vest  and  distribute  the  judicial  authority 
in  and  among  courts  and  magistrates,  and  regulate  judicial  i)ro- 
eeedings  before  them,  as  it  may  think  fit,  so  long  as  it  does  not 
contravene  any  provision  of  the  Constitution  of  the  United  States. 
Kendall  v.  United  States,  (1838)  12  Pet.  524,  619;  Mattingly  v. 
District  of  Columbia,  (1878)  97  U.  S.  687,  690;  Gibbons  v.  District 
of  Columbia,  (1886)  116  U.  S.  404,  407. 

It  is  beyond  doubt,  at  the  present  day,  that  .the  provisions  of  the 
Constitution  of  the  United  States  securing  the  right  of  trial  by  jury, 
whether  in  civil  or  in  criminal  cases,  are  applicable  to  the  District 
of  Columbia.  Webster  v.  Reid,  (1850)  11  How.  437,  460;  Callan 
y.  Wilson,  (1888)  127  U.  S.  540,550;  Thompson  v.  Utah,  (1898) 
170  U.  S.  343. 

The  decision  of  this  case  mainly  turns  upon  the  scope  and  effect 
of  the  Seventh  Amendment  of  the  Constitution  of  the  United  States. 
It  may  therefore  be  convenient,  before  ])articularly  examining  the 
acts   of   Congress   now  in  question,  to  refer   to  the   circumstances 


958  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [CHAP.  XIII. 

preceding  and  attending  the  adoption  of  this  amendment,  to  the 
contemporaneous  understanding  of  its  terms,  and  to  the  subsequent 
judicial  interpretation  thereof,  as  aids  in  ascertaining  its  true  mean- 
ing, and  its  application  to  the  case  at  bar. 

II.  The  first  Continental  Congress,  in  the  Declaration  of  Eights 
adopted  October  14,  1774,  imanimously  resolved  that  "the  respec- 
tive colonies  are  entitled  to  the  common  law  of  England,  and  more 
especially  to  the  great  and  inestimable  privilege  of  being  tried 
by  their  peers  of  the  vicinage,  according  to  the  course  of  that  law." 
1  Journals  of  Congress,  28. 

The  Ordinance  of  1787  declared  that  the  inhabitants  of  the  North- 
west Territory  should  "  always  be  entitled  to  the  benefits  of  the  writ 
of  habeas  corpus,  and  of  the  trial  by  jury,"  "and  of  judicial  proceed- 
ings according  to  the  course  of  the  common  law."  1  Charters  and 
Constitutions,  431. 

The  Constitution  of  the  United  States,  as  originally  adopted, 
merely  provided  in  article  3,  section  3,  that  "  the  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury."  In  the  conven- 
tion which  framed  the  Constitution,  a  motion  to  add  this  clause, 
"and  a  trial  by  jury  shall  be  preserved  as  usual  in  civil  cases,"  was 
opposed  by  ]SIr.  Gorham  of  Massachusetts,  on  the  ground  that  "the 
constitution  of  juries  is  different  in  different  States,  and  the  trial 
itself  is  usual  in  different  cases,  in  different  States;  "  and  was  unan- 
imously rejected.     5  Elliott's  Debates,  550. 

Mr.  Hamilton,  in  number  81  of  the  Federalist,  when  discussing 
the  clause  of  the  Constitution  which  confers  upon  this  court  "appel- 
late jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make,"  and  again,  in 
more  detail,  in  number  83,  when  answering  the  objection  to  the 
want  of  any  provision  securing  trial  by  jury  in  civil  actions,  stated 
the  diversity  then  existing  in  the  laws  of  the  different  States  regard- 
ing appeals  and  jury  trials ;  and  especially  pointed  out  that  in  the 
New  England  States,  and  in  those  alone,  appeals  were  allowed,  as 
of  course,  from  one  jury  to  another  until  there  had  been  two  ver- 
dicts on  one  side,  and  in  no  other  State  but  Georgia  was  there  any 
appeal  from  one  to  another  jury.  The.  diversity  in  the  laws  of  the 
several  States,  he  insisted,  "shows  the  impropriety  of  a  technical 
definition  derived  from  the  jurisprudence  of  any  particular  State," 
and  "that  no  general  rule  could  have  been  fixed  upon  by  the  con- 
vention which  would  have  corresponded  with  the  circumstances  of 
all  the  States."  And  he  suggested  that  "the  legislature  of  the 
United  States  would  certainly  have  full  power  to  provide  that 
in  appeals  to  the  Supreme  Court  there  should  be  no  re-examination 
of  facts  where  they  had  been  tried  in  the  original  causes  by  juries;  " 
but  if  this  "should  be  thought  too  extensive,  it  might  be  qualified 
with  a  limitation  to  such  causes  only  as  are  determinable  at  common 
law  in  that  mode  of  trial."  2  Federalist,  (ed.  1788)  pp.  319-321, 
335,  .336. 


SECT,  V.J  CAPITAL   TRACTION    CO.    V.    EOF.  959 

At  the  first  session  of  the  first  Congress  under  the  Constitution, 
Mr.  Madison  in  the  House  of  Kepresentatives,  on  June  8,  1789,  sub- 
mitted propositions  to  amend  tlie  Constitution  by  adding,  to  the 
clause  concerning  the  appellate  jurisdiction  of  this  court,  the  words 
"nor  shall  any  fact,  triable  by  a  jury,  according  to  the  course  of  the 
common  law,  be  otherwise  re-examinable  than  according  to  the  prin- 
ciples of  the  common  law;"  and,  to  the  clause  concerning  trial  by 
jury,  these  words:  "In  suits  at  common  law,  between  man  and  man, 
the  trial  by  jury,  as  one  of  the  best  securities  to  the  rights  of  the 
people,  ought  to  remain  inviolate."  1  Annals  of  Congress,  424, 
435.  And  those  propositions,  somewhat  altered  in  form,  were 
embodied  in  a  single  article,  which  was  proposed  by  Congress  on 
September  25,  1789,  to  the  legislatures  of  the  several  States,  and 
upon  being  duly  ratified  by  them,  became  the  Seventh  Amendment 
to  the  Constitution,  in  these  words:  "In  suits  at  common  law, 
where  the  value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved;  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined,  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law." 

A  comparison  of  the  language  of  the  Seventh  Amendment,  as 
finally, made  part  of  the  Constitution  of  the  United  States,  with  the 
Declaration  of  Rights  of  1774,  with  the  Ordinance  of  1787,  with 
the  essays  of  Mr.  Hamilton  in  1788,  and  with  the  amendments  in- 
troduced by  Mr.  Madison  in  Congress  in  1789,  strongly  tends  to 
the  conclusion  that  the  Seventh  Amendment,  in  declaring  that  "  no 
fact  tried  by  a  jury  shall  be  otherwise  re-examined,  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the  common  law," 
had  in  view  the  rules  of  the  common  law  of  England,  and  not  the 
rules  of  that  law  as  modified  by  local  statute  or  usage  in  any  of  the 
States. 

This  conclusion  has  been  established,  and  "the  rules  of  the  com- 
mon law  "  in  this  respect  clearly  stated  and  defined,  by  judicial 
decisions. 

It  must  therefore  be  taken  as  established,  by  virtue  of  the  Seventh 
Amendment  of  the  Constitution,  that  either  party  to  an  action  at 
law  (as  distinguished  from  suits  in  equity  or  in  admiralty)  in  a 
court  of  the  United  States,  where  the  value  in  controversy  exceeds 
twenty  dollars,  has  the  right  to  a  trial  by  jury ;  that,  when  a  trial 
by  jury  has  been  had  in  an  action  at  law,  in  a  court  either  of  the 
United  States  or  of  a  State,  the  facts  there  tried  and  decided  cannot 
be  re-examined  in  any  court  of  the  United  States,  otherwise  than 
according  to  the  rules  of  the  common  law  of  England;  that  by  the 
rules  Qf  that  law,  no  other  mode  of  re-examination  is  allowed  than 
upon  a  new  trial,  either  granted  by  the  court  in  which  the  first  trial 
was  had  or  to  which  the  record  was  returnable,  or  ordered  by  an 
appellate  court  for  ei-ror  in  law;  and  therefore  that,  unless  a  n«w 


960  CIVIL   EIGHTS    AND    THEIR    GUARANTIES.        [CHAP.  SIII. 

trial  has  been  granted  in  one  of  those  two  ways,  facts  once  tried  by 
a  jury  cannot  be  tried  anew,  by  a  jury  or  otherwise,  in  any  court 
of  the  United  States. 

III.  "Trial  by  jury,"  in  the  primary  and  usual  sense  of  the  term 
at  tlie  common  law  and  in  the  American  constitutions,  is  not  merely 
a  trial  by  a  jury  of  twelve  men  before  an  ofheer  vested  with  autliority 
to  cause  them  to  be  summoned  and  empanelled,  to  administer  oaths 
to  them  and  to  the  constable  in  charge,  and  to  enter  judgment  and 
issue  execution  on  their  verdict;  but  it  is  a  trial  by  a  jury  of  twelve 
men,  in  the  presence  and  under  the  superintendence  of  a  judge 
empowered  to  instruct  them  on  the  law  and  to  advise  them  on  tlie 
facts,  and  (except  on  acquittal  of  a  criminal  charge)  to  set  aside 
their  verdict  if  in  his  opinion  it  is  against  the  law  or  the  evidence. 
This  proposition  has  been  so  generally  admitted,  and  so  seldom 
contested,  that  there  has  been  little  occasion  for  its  distinct  asser- 
tion. Yet  there  are  unequivocal  statements  of  it  to  be  found  in 
the  books. 

Lord  Hale,  in  his  History  of  the  Common  Law,  c.  12,  "touching 
trial  by  jury,"  says:  "Another  excellency  of  this  trial  is  this,  that 
the  judge  is  always  present  at  the  time  of  the  evidence  given  in  it. 
Herein  he  is  able  in  matters  of  law,  emerging  upon  the  evidence,  to 
direct  them,  and  also,  in  matters  of  fact,  to  give  them  great  light 
and  assistance  by  his  weighing  the  evidence  before  them,  and  ob- 
serving where  the  question  and  knot  of  the  business  lies,  and  by 
showing  them  his  opinion  even  in  matter  of  fact,  which  is  a  great 
advantage  and  light  to  laymen.  And  thus  as  the  jury  assists  the 
judge  in  determining  the  matter  of  fact,  so  the  judge  assists  the  jury- 
in  determining  points  of  law,  and  also  very  much  in  investigating 
and  enlightening  the  matter  of  fact,  whereof  the  jury  are  the 
judges."  And  again,  in  summing  up  the  advantages  of  trial  by 
jury,  he  says:  "It  has  the  advantage  of  the  judge's  observation, 
attention,  and  assistance,  in  point  of  law  by  way  of  decision,  and  in 
point  of  fact  by  way  of  direction  to  the  jury."  2  Hale,  Com.  Law 
(oth  ed.),  147,  156.     See  also  1  Hale  P.  C.  33. 

[Various  cases  in  the  State  courts  relating  to  what  constitutes  a 
common-law  jury  are  stated.] 

V.  Another  question  having  an  important  bearing  on  the  validity 
and  the  interpretation  of  the  successive  acts  of  Congress,  concerning 
trial  by  jury  in  civil  actions  begun  before  justices  of  the  peace  in 
the  District  of  Columbia,  is  whether  the  right  of  trial  by  jury, 
secured  by  the  Seventh  Amendment  to  the  Constitution,  is  preserved 
by  allowing  a  common-law  trial  by  jury  in  a  court  of  record,  upon 
appeal  from  a  judgment  of  a  justice  of  the  peace  and  upon  giving 
bond  with  surety  to  prosecute  the  appeal  and  to  abide  the  judgment 
of  the  appellate  court. 


SECT.  T.J  CAPITAL   TRACTION   CO,    V.    HOP.  961 

While,  as  has  been  seen,  the  Seventh  Amendment  to  the  Consti- 
tution of  the  United  States  requires  that  "the  right  of  trial  by  jury- 
shall  be  preserved  "  in  the  courts  of  the  United  States  in  every  action 
at  law  in  which  the  value  in  controversy  exceeds  twenty  dollars,  and 
forbids  any  fact  once  tried  by  a  jury  to  "be  otherwise  re-examined, 
in  any  court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law,"  meaning  thereby  the  common  law  of  England,  and 
not  the  law  of  any  one  or  more  of  the  States  of  the  Union,  yet  it 
is  to  be  remembered  that,  as  observed  by  Justice  Johnson,  speaking 
for  this  court,  in  Bank  of  Columbia  v.  Okely,  4  Wheat.  235,  it  is 
not  "trial  by  jury,"  but  "the  right  of  trial  by  jury,"  which  the 
amendment  declares  "shall  be  preserved."  It  does  not  prescribe 
at  what  stage  of  an  action  a  trial  by  jury  must,  if  demanded,  be 
had;  or  wliat  conditions  may  be  imposed  upon  the  demand  of  such  a 
trial,  consistently  with  preserving  the  right  to  it.  In  passing  upon 
these  questions,  the  judicial  decisions  and  the  settled  practice  in 
the  several  States  are  entitled  to  great  weight,  inasmuch  as  the 
constitutions  of  all  of  them  had  secured  the  right  of  trial  by  jury  in 
civil  actions,  by  the  words  "shall  be  preserved,"  or  "shall  be  as 
heretofore,"  or  "shall  remain  inviolate,"  or  "shall  be  held  sacred," 
or  by  some  equivalent  expression. 

A  long  line  of  judicial  decisions  in  the  several  States,  beginning 
early  in  this  century,  maintains  the  position  that  the  constitutional 
right  of  trial  by  jury  in  civil  actions  is  not  infringed  by  a  statute 
which  sets  the  pecuniary  limit  of  the  jurisdiction  of  justices  of  the 
peace  in  actions  at  law  higher  than  it  was  when  the  particular  con- 
stitution was  adopted,  allows  a  trial  by  jury  for  the  first  time  upon 
appeal  from  the  judgment  of  the  justice  of  the  peace,  and  requires 
of  the  appellant  a  bond  with  surety  to  prosecute  the  appeal  and  to 
pay  the  judgment  of  the  appellate  court.  The  full  extent  and 
weight  of  those  precedents  cannot  be  justly  appreciated  without 
referring  to  the  texts  of  the  statutes  which  they  upheld,  and  which 
have  not  always  been  fully  set  forth  in  the  reports. 

The  trial  by  jury,  allowed  by  the  seventh  section  of  the  act,  in  a 
court  of  record,  in  the  presence  of  a  judge  having  the  usual  powers 
of  superintending  the  course  of  the  trial,  instructing  the  jury  on  the 
law  and  advising  them  on  the  facts,  and  setting  aside  their  verdict 
if  in  his  opinion  against  the  law  or  the  evidence,  was  undoubtedly 
a  trial  by  jury,  in  the  sense  of  the  common  law  and  of  the  Seventh 
Amendment  to  the  Constitution. 

But  a  trial  by  a  jury  before  a  justice  of  the  peace,  pursuant  to 
sections  15  and  16  of  the  act,  was  of  quite  a  different  character. 
Congress,  in  regulating  this  matter,  might  doubtless  allow  cases 
within  the  original  jurisdiction  of  a  justice  of  the  peace  to  be  tried 
and  decided  in  the  first  instance  by  any  specified  number  of  persons 
in  his  presence.     But  such  persons,  even  if  required  to  be  twelve 

61 


962  CIVIL   RIGHTS   AND   THEIR   GUARANTIES.        [cHaP.  XIII. 

in  number,  and  called  a  jury,  were  ratlier  in  tlie  nature  of  special 
commissioners  or  referees.  A  justice  of  the  peace,  having  no  other 
powers  than  those  conferred  by  Congress  on  such  an  officer  in  the 
District  of  Columbia,  was  not,  properly  speaking,  a  judge,  or  his 
tribunal  a  court;  least  of  all,  a  court  of  record.  The  proceedings 
before  him  were  not  according  to  the  course  of  the  common  law; 
his  authority  was  created  and  defined  by,  and  rested  upon,  the  acts 
of  Congress  only.  The  act  of  1823,  in  permitting  cases  before  him 
to  be  tried  by  jury,  did  not  require  him  to  superintend  the  course  of 
the  trial  or  to  instruct  the  jury  in  matter  of  law;  nor  did  it  author- 
ize him,  upon  the  return  of  their  verdict,  to  arrest  judgment  upon  it, 
or  to  set  it  aside,  for  any  cause  whatever ;  but  made  it  his  duty  to 
enter  judgment  upon  it  forthwith,  as  a  thing  of  course.  A  body  of 
men,  so  free  from  judicial  control,  was  not  a  common-law  jury;  nor 
was  a  trial  by  them  a  trial  by  jury,  within  the  meaning  of  the 
Seventh  Amendment  to  the  Constitution.  It  was  no  more  a  jury,  in 
the  constitutional  sense,  than  it  would  have  been,  if  it  had  consisted, 
as  has  been  more  usual  in  statutes  authorizing  trials  by  a  jury  be- 
fore a  justice  of  the  peace,  of  less  than  twelve  men. 

There  was  nothing,  therefore,  either  in  the  Constitution  of  the 
United  States,  or  in  the  act  of  Congress,  to  prevent  facts  once  tried 
by  such  a  jury  before  tlie  justice  of  the  peace  from  being  tried  anew 
by  a  constitutional  jury  in  the  appellate  court. 

[The  court  refers  to  acts  of  Congress  by  which  the  jurisdiction 
of  justices  of  the  peace  was  extended  to  claims  not  exceeding  $300, 
with  provision  for  trial  by  jury  before  the  justice  if  the  claim  ex- 
ceeded $20,  and  trial  by  jury  in  a  court  of  record  on  appeal  from 
the  justice,  with  a  further  provision  that  no  appeal  shall  be  allowed 
unless  the  appellant  enters  into  an  undertaking  with  sufficient  sure- 
ties to  satisfy  whatever  final  judgment  may  be  recovered  in  the 
appellate  court.] 

X.  Upon  the  whole  matter,  our  conclusion  is,  that  Congress,  in 
the  exercise  of  its  general  and  exclusive  power  of  legislation  over 
the  District  of  Columbia,  may  provide  for  the  trial  of  civil  causes  of 
moderate  amount  by  a  justice  of  the  peace,  or,  in  his  presence,  by  a 
jury  of  twelve,  or  of  any  less  number,  allowing  to  either  party, 
where  the  value  in  controversy  exceeds  twenty  dollars,  the  right  to 
appeal  from  the  judgment  of  the  justice  of  the  peace  to  a  court  of 
record,  and  to  have  a  trial  by  jury  in  that  court;  that  Congress,  in 
every  case  where  the  value  in  controvers}' exceeds  five  dollars,  has 
authorized  either  party  to  appeal  from  the  judgment  of  the  justice 
of  the  peace,  although  entered  upon  the  verdict  of  a  jury,  to  the 
Supreme  Court  of  the  District  of  Columbia,  and  to  have  a  trial  by 
jury  in  that  court;  that  the  trial  by  a  jury  of  twelve,  as  permitted 
by  Congress  to  be  had  before  a  justice  of  the  peace,  is  not,  and  the 
trial  by  jury  in  the  appellate  court  is,  a  trial  by  jury,  within  the 
meaning  of  the  common  law,   and  of  the  Seventh  Amendment  to 


SECT,  v.]  CAPITAL   TRACTION    CO.    V.    HOF.  963 

the  CoDstitution;  that  therefore  the  trial  of  facts  by  a  jury  before  the 
justice  of  the  peace  does  not  prevent  those  facts  from  being  re- 
examined by  a  jury  in  the  appellate  court;  that  the  right  of  trial  by 
jury  in  the  appellate  court  is  not  unduly  obstructed  by  the  provisions 
enlarging  the  civil  jurisdiction  of  justices  of  the  peace  to  three 
hundred  dollars,  and  requiring  every  appellant  to  give  security  to 
pay  and  satisfy  the  judgment  of  the  appellate  court;  that  the  legis- 
lation of  Congress  upon  the  subject  is  in  all  respects  consistent  with 
the  Constitution  of  the  United  States;  and  that  upon  these  grounds 
(which  are  substantially  those  taken  by  Chief  Justice  Alvey  below) 
the  judgment  of  the  Court  of  Appeals,  quashing  the  writ  of  certiorari 
to  the  justice  of  the  peace,  must  be  affirmed. 

The  effect  of  so  affirming  that  judgment  will  be  to  leave  the  claim 
of  Hof  against  the  Capital  Traction  Company  open  to  be  tried  by  a 
jury  before  the  justice  of  the  peace,  and,  after  his  judgment  upon 
their  verdict,  to  be  taken  by  appeal  to  the  Supreme  Court  of  the 
District  of  Columbia,  and  to  be  there  tried  by  jury  on  the  demand  of 
either  party.  Judgment  affirmed. 

Me.  Justice  Brewer  concurred  in  the  judgment  of  affirmance, 
but  dissented  from  so  much  of  the  opinion  as  upheld  the  validity  of 
the  provision  of  the  act  of  Congress  requiring  every  appellant 
from  the  judgment  of  a  justice  of  the  peace  to  give  bond  with  surety 
for  the  payment  of  the  judgment  of  the  appellate  court. ^ 

1    In    VlCKSBDROr    AND    MERIDIAN    RaILROAD    COMPANY    V.  POTNAM,   118   U.  S.  545 

(1886),  exception  was  taken  to  tlie  action  of  the  judge  of  the  Circuit  Court  of  the 
United  States  in  which  the  case  was  tried,  in  giving  instructions  to  the  jury  with  ref- 
erence to  the  facts.  Mr.  Jcstice  Gray,  delivering  tlie  opinion  of  the  court,  used 
tliis  language :  — 

"  In  the  courts  of  the  United  States,  as  in  those  of  England  from  which  our  practice 
was  derived,  the  judge,  in  submitting  a  case  to  tlie  jury,  may,  at  his  discretion,  wlien- 
ever  he  thinks  it  necessary  to  assist  them  in  arriving  at  a  just  conclusion,  comment 
upon  the  evidence,  call  their  attention  to  parts  of  it  which  he  thinks  important,  and 
express  his  opinion  upon  the  facts ;  and  the  expression  of  such  an  opinion,  when  no 
rule  of  law  is  incorrectly  stated,  and  all  matters  of  fact  are  ultimately  submitted  to  the 
determination  of  the  jury,  cannot  be  reviewed  on  writ  of  error.  Carver  v.  Jackson, 
4  Pet.  1,  80;  Magniac  ^.'Thompson,  7  Pet.  348,  390;  Mitchell  v.  Harmony,  13  How. 
115,  131  ;•  Transportation  Line  i'.  Hope,  95  U.  S.  297,  302;  Taylor  on  Evidence  (8th 
ed.),  sec.  25.  The  powers  of  the  courts  of  the  United  States  in  this  respect  are  not 
controlled  by  the  statutes  of  the  State  forbidding  judges  to  express  any  opinion 
upon  the  facts.    Nudd  v.  Burrows,  91  U.  S.  426." 


964  POLITICAL  PRIVILEGES.  [CHAP.  XIV. 


CHAPTER   XIV. 
POLITICAL  PRIVILEGES. 


Section  I.  —  Citizenship. 


a.    Who  are  Citizens  of  the  United  States. 

UNITED   STATES   v.    WONG  KIM  AEK. 

169  United  States,  649.     1898. 

[Proceedings  -were  iiistitnted  by  defendant  in  error  in  the  District 
Court  of  the  United  States  for  the  Northern  District  of  California, 
to  secure  his  release  by  habeas  corpus  from  arrest  for  attempting 
to  enter  the  United  States  in  alleged  violation  of  the  Chinese 
Exclusion  Acts.  The  United  States  intervened  in  the  action,  and 
from  a  judgment  granting  the  writ  appealed  to  this  court.] 

Mr.  Justice  Gray,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  facts  of  this  case,  as  agreed  by  the  parties,  are  as  follows : 
Wong  Kim  Ark  was  born  in  1873,  in  the  city  of  San  Francisco,  in 
the  State  of  California  and  United  States  of  America,  and  was  and 
is  a  laborer.  His  father  and  mother  were  persons  of  Chinese 
descent,  and  subjects  of  the  Emperor  of  China;  they  were  at  the 
time  of  his  birth  domiciled  residents  of  the  United  States,  having 
previously  established  and  still  enjoying  a  permanent  domicile  and 
residence  therein  at  San  Francisco;  they  continued  to  reside  and 
remain  in  the  United  Sta^tes  until  1890,  when  they  departed  for 
China;  and  during  all  the  time  of  their  residence  in  the  United 
States  they  were  engaged  in  business,  and  were  never  employed  in 
any  diplomatic  or  official  capacity  under  the  Emperor  of  China. 
Wong  Kim  Ark,  ever  since  his  birth,  has  had  but  one  residence, 
to  wit,  in  California,  within  the  United  States,  and  has  there 
resided,  claiming  to  be  a  citizen  of  the  United  States,  and  has 
never  lost  or  changed  that  residence,  or  gained  or  acquired  another 
residence;  and  neither  he,  nor  his  parents  acting  for  him,  ever 
renounced  his  allegiance  to  the  United  States,  or  did  or  committed 


SECT.  I.  a.]  UNITED   STATES   V.    WONG    KIM    ARK.  965 

any  act  or  thing  to  exclude  him  therefrom.  In  1890  (when  he 
must  have  been  about  seventeen  years  of  age)  he  departed  for  China 
on  a  temporary  visit  and  with  the  intention  of  returning  to  the 
United  States,  and  did  return  thereto  by  sea  in  the  same  year, 
and  was  permitted  by  the  collector  of  customs  to  enter  the  United 
States,  upon  the  sole  ground  that  he  was  a  native-born  citizen  of  the 
United  States.  After  such  return,  he  remained  in  the  United 
States,  claiming  to  be  a  citizen  thereof,  until  1894,  when  he  (being 
about  twenty-one  years  of  age,  but  whether  a  little  above  or  a  little 
under  that  age  does  not  appear)  again  departed  for  China  on  a  tem- 
porary visit  and  with  the  intention  of  returning  to  the  United 
States;  and  he  did  return  thereto  by  sea  in  August,  1895,  and 
applied  to  the  collector  of  customs  for  permission  to  land;  and  was 
denied  such  permission,  upon  the  sole  ground  that  he  was  -not  a 
citizen  of  the  United  States. 

It  is  conceded  that,  if  he  is  a  citizen  of  the  United  States,  the 
acts  of  Congress,  known  as  the  Chinese  Exclusion  Acts,  prohibiting 
persons  of  the  Chinese  race,  and  especially  Chinese  laborers,  from 
coming  into  the  United  States,  do  not  and  cannot  apply  to  him. 

The  question  presented  by  the  record  is  whether  a  child  born  in 
the  United  States,  of  parents  of  Chinese  descent,  who,  at  the  time 
of  his  birth,  are  subjects  of  the  Emperor  of  China,  but  have  a 
permanent  domicile  and  residence  in  the  United  States,  and  are 
there  carrying  on  business,  and  are  not  employed  in  any  diplomatic 
or  official  capacity  under  the  Emperor  of  China,  becomes  at  the 
time  of  his  birth  a  citizen  of  the  United  States,  by  virtue  of  the 
first  clause  of  the  Fourteenth  Amendment  of  the  Constitution,  "all 
persons  born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside." 

I.  In  construing  any  act  of  legislation,  whether  a  statute  enacted 
by  the  legislature,  or  a  constitution  established  by  the  people  as 
the  supreme  law  of  the  land,  regard  is  to  be  had,  not  only  to  all 
parts  of  the  act  itself,  and  of  any  former  act  of  the  same  law- 
making power,  of  which  the  act  in  question  is  an  amendment;  but 
also  to  the  condition,  and  to  the  history,  of  the  law  as  previously 
existing,  and  in  the  light  of  which  the  new  act  must  be  read  and 
interpreted. 

The  Constitution  of  the  United  States,  as  originally  adopted, 
uses  the  words  "citizen  of  the  United  States,"  and  "natural-born 
citizen  of  the  United  States."  By  the  original  Constitution,  every 
representative  in  Congress  is  required  to  have  been  "  seven  years  a 
citizen  of  the  United  States,"  and  every  senator  to  have  been 
"nine  years  a  citizen  of  the  United  States"  [Art.  I.  §§  2,  3]; 
and  "  no  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President."    Art.  II.  §  1.    The  Fourteenth 


966  POLITICAL   PRIVILEGES.  [CHAP.  XIV 

Article  of  Amendment,  besides  declaring  that  "  all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside,"  also  declares  that  "no  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws.'* 
And  the  Fifteenth  Article  of  Amendment  declares  that  "  the  right 
of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States,  or  by  any  State,  on  account  of  race, 
color,   or  previous  condition  of  servitude." 

The  Constitution  nowhere  defines  the  meaning  of  these  words, 
either  by  way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this 
is  done  by  the  affirmative  declaration  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States."  Amend.  Art.  XIV.  In 
this,  as  in  other  respects,  it  must  be  interpreted  in  the  light  of 
the  common  law,  the  principles  and  history  of  which  were  famil- 
iarly known  to  the  framers  of  the  Constitution.  Minor  v.  Happer- 
sett,  21  Wall.  162;  Ex  parte  Wilson,  114  U.  S.  417,  422;  Boyd  y. 
United  States,  116  U.  S.  616,  624,  625;  Smith  v.  Alabama,  124  U.  S. 
465.  The  language  of  the  Constitution,  as  has  been  well  said,  could 
not  be  understood  without  reference  to  the  common  law.  1  Kent, 
Com.  336;  Bradley,  J.,  in  Moore  v.  United  States,  91  U.  S. 
270,  274. 

II.  The  fundamental  principle  of  the  common  law  with  regard  to 
English  nationality  was  birth  within  the  allegiance,  also  called 
"ligealty,"  "obedience,"  "faith,"  or  "power,"  of  the  King.  The 
principle  embraced  all  persons  born  within  the  King's  allegiance 
and  subject  to  his  protection.  Such  allegiance  and  protection  were 
mutual  —  as  expressed  in  the  maxim,  2:)rotectio  trahit  subjecHonem, 
et  subjectio  protect'ionem  —  and  were  not  restricted  to  natural-born 
subjects  and  naturalized  subjects,  or  to  those  who  had  taken  an 
oath  of  allegiance;  but  were  predicable  of  aliens  in  amity,  so  long 
as  they  were  within  the  kingdom.  Children,  born  in  England,  of 
such  aliens,  were  therefore  natural-born  subjects.  But  the  chil- 
dren, born  within  the  realm,  of  foreign  ambassadors,  or  the  children 
of  alien  enemies,  born  during  and  within  their  hostile  occupation 
of  part  of  the  King's  dominions,  were  not  natural-born  subjects, 
because  not  born  within  the  allegiance,  the  obedience,  or  the 
power,  or,  as  would  be  said  at  this  day,  within  the  jurisdiction  of 
the  King. 

This  fundamental  principle,  with  these  qualifications  or  expla- 
nations of  it,  was  clearly,  though  qi;aintly,  stated  in  the  leading 
case,  known  as  Calvin's  Case,  or  the  Case  of  the  Postnati,  decided 


tl 


SECT.  I.  a.]  UNITED   STATES   V.    WONG   KIM    ARK.  967 

in  1608,  after  a  hearing  in  the  Exchequer  Chamber  before  the  Lord 
Chancellor  and  all  the  judges  of  England,  and  reported  by  Lord 
Coke  and  by  Lord  Ellesuiere.  Calvin's  Case,  7  Coke,  1,  4  5-Ga, 
18  a,  ISb;  Ellesraere,  Postnati,  G2-64;  s.  c.  2  Howell's  State  Trials, 
559,  607,  613-617,  639,  640,  659,  679. 

The  English  authorities  ever  since  are  to  the  like  effect.  Co.  Lit. 
Sa,  128  Z»;  Lord  Hale,  in  Hargrav^e's  Law  Tracts,  210,  and  in  1  Hale 
P.  C.  61,  62;  1  Bl.  Com.  366,  369,  370,  374;  4  Bl.  Com.  74,  92; 
Lord  Kenyon,  in  Doe  v.  Jones,  4  T.  R.  300,  308;  Cockburu  on 
Nationality,  7;  Dicey,  Conflicc  of  Laws,  pp.  173-177,  741. 

It  thus  clearly  appears  that  by  the  law  of  England  for  the  last 
three  centuries,  beginning  before  the  settlement  of  this  country, 
and  continuing  to  the  present  day,  aliens,  while  residing  in  the 
dominions  j^ossessed  by  the  crown  of  England,  were  within  the 
allegiance,  the  obedience,  the  faith  or  loyalty,  the  protection,  the 
power,  and  the  jurisdiction,  of  the  English  sovereign;  and  there- 
fore every  child  born  in  England  of  alien  parents  was  a  natural- 
born  subject,  unless  the  child  of  an  ambassador  or  other  diplomatic 
agent  of  a  foreign  State,  or  of  an  alien  enemy  in  hostile  occupation 
of  tliB  place  where  the  child  was  born. 

III.  The  same  rule  was  in  force  in  all  the  English  colonies 
upon  this  continent  down  to  the  time  of  the  Declaration  of  Inde- 
pendence, and  in  the  United  States  afterwards,  and  continued  to 
prevail  under  the  Constitution  as  originally  established. 

IV.  It  was  contended  by  one  of  the  learned  counsel  for  the 
United  States  that  the  rule  of  the  Roman  law,  by  which  the  citi- 
zenship of  the  child  followed  that  of  the  parent,  was  the  true  rule 
of  international  law,  as  now  recognized  in  most  civilized  countries, 
and  had  superseded  the  rule  of  the  common  law,  depending  on  birth 
within  the  realm,  originally  founded  on  feudal  considerations. 

But  at  the  time  of  the  adoption  of  the  Constitution  of  the  United 
States  in  1789,  and  long  before,  it  would  seem  to  have  been  the 
rule  in  Europe  generally,  as  it  certainly  was  in  France,  that,  as 
said  by  Pothier,  "citizens,  true  and  native-born  citizens,  are  those 
who  are  born  within  the  extent  of  the  dominion  of  France,"  and 
"mere  birth  within  the  realm  gives  the  rights  of  a- native-born 
citizen,  independently  of  the  origin  of  the  father  or  mother,  and  of 
thoir  domicile;  "  and  children  born  in  a  foreign  country,  of  a  French 
father  who  had  not  established  his  domicile  there  nor  given  up  the 
intention  of  returning,  were  also  deemed  Frenchmen,  as  Laurent 
says,  by  "a  favor,  a  sort  of  fiction,"  and  Calvo,  " by  a  sort  of  fiction 
of  exterritoriality,  considered  as  born  in  France,  and  therefore  in- 
vested with  French  nationality."  Pothier,  Traite  des  Personnes, 
pt.  1,  tit.  2,  sect.  1,  nos.  43,  45;  Walsh-Serrant  v.  Walsh-Serrant 
(1802),  3  Journal  du  I'alais,  384;  s.   c.   8  Merlin,   Jurisprudence 


968  POLITICAL   PRIVILEGES.  [CHAP.  XIV. 

(ath  ed.),  Domicile,  §13;  Prefet  du  Nord  v.  Lebeau  (1862),  Journal 
du  Palais,  1863,  312  and  note;  1  Laurent,  Droit  Civil,  no.  321; 
2  Calvo,  Droit  International  (5th  ed.),  §  542;  Cockburn  on  National- 
ity, 13,  14;  Hall's  International  Law  (4th  ed.),  §  68.  The  general 
principle  of  citizenship  by  birth  within  French  territory  prevailed 
until  after  the  French  Revolution,  and  was  affirmed  in  successive 
constitutions,  from  the  one  adopted  by  the  Constituent  Assembly 
in  1791  to  that  of  the  French  Republic  in  1799.  Constitutions  et 
Chartes  (ed.  1830),  pp.  100,  136,  148,  186.  The  Code  Napoleon  of 
1807  changed  the  law  of  France,  and  adopted,  instead  of  the  rule  of 
country  of  birth,  jus  soli,  the  rule  of  descent  or  blood,  jus  sanguinis, 
as  the  leading  principle;  but  an  eminent  commentator  has  observed 
that  the  framers  of  that  code  "appear  not  to  have  wholly  freed 
themselves  from  the  ancient  rule  of  France,  or  rather,  indeed, 
ancient  rule  of  Europe,  — de  la  vieille  regie  frangaise,  on phitot  meme 
de  la  vieille  regie  europeenne,  —  according  to  which  nationality  had 
always  been,  in  former  times,  determined  by  the  place  of  birth." 
1  Demolombe,  Cours  de  Code  Napoleon  (4th  ed.),  no.  146. 

Tlie  later  modifications  of  the  rule  in  Europe  rest  upon  the  con- 
stitutions, laws,  or  ordinances  of  the  various  countries,  and  have  no 
important  bearing  upon  the  interpretation  and  effect  of  the  Constitu- 
tion of  the  United  States.  The  English  Naturalization  Act  of  33 
Vict.  (1870),  c.  14,  and  the  Commissioners*  Report  of  1869  out  of 
which  it  grew,  both  bear  date  since  the  adoption  of  the  Fourteenth 
Amendment  of  the  Constitution;  and,  as  observed  by  Mr.  Dicey, 
that  act  has  not  affected  the  principle  by  which  any  person  who, 
whatever  the  nationality  of  his  parents,  is  born  within  the  British 
dominions,  acquires  British  nationality  at  birth,  and  is  a  natural- 
born  British  subject.  Dicey,  Conflict  of  Laws,  741.  At  the  time 
of  the  passage  of  that  act,  although  the  tendency  on  the  continent 
of  Europe  was  to  make  parentage,  rather  than  birthplace,  the 
criterion  of  nationality,  and  citizenship  was  denied  to  the  native- 
born  children  of  foreign  parents  in  Germany,  Switzerland,  Sweden, 
and  Norway,  yet  it  appears  still  to  have  been  conferred  upon  such 
children  in  Holland,  Denmark,  and  Portugal,  and,  when  claimed 
under  certain  specified  conditions,  in  France,  Belgium,  Spain, 
Italy,  Greece,  and  Russia.     Cockburn  on  Nationality,  14-21. 

There  is,  therefore,  little  ground  for  the  theory  that,  at  the  time 
of  the  adoption  of  the  Fourteenth  Amendment  of  the  Constitution 
of  the  United  States,  there  was  any  settled  and  definite  rule  of 
international  law,  generally  recognized  by  civilized  nations,  incon- 
sistent with  the  ancient  rule  of  citizenship  by  birth  within  the 
dominion. 

Nor  can  it  be  doubted  that  it  is  the  inherent  right  of  every  inde- 
pendent nation  to  determine  for  itself,  and  according  to  its  own 
constitution  and  laws,  what  classes  of  persons  shall  be  entitled  to 
its  citizenship. 


M,, 


SECT.  I.  a.]  UNITED   STATES   V.   WONG   KIM   ARK.  969 

Both  in  England  and  in  the  United  States,  indeed,  statutes  have 
been  passed,  at  various  times,  enacting  that  certain  issue  born 
abroad  of  English  subjects,  or  of  American  citizens,  respectively, 
should  inherit,  to  some  extent  at  least,  the  rights  of  their  parents. 
But  those  statutes  applied  only  to  cases  coming  within  their  pur- 
port; and  they  have  never  been  considered,  in  either  country,  as 
affecting  the  citizenship  of  persons  born  within  its  dominion. 

[English  statutes  are  discussed  at  considerable  length,  as  are  also 
the  statutes  of  the  United  States  relating  to  naturalization  and 
the  Civil  Rights  Act.  It  is  suggested  that  the  first  clause  of  the 
Fourteenth  Amendment  was  not  intended  to  impose  any  new  restric- 
tions upon  citizenship,  but  is  declaratory  only  of  the  existing  law, 
and  in  support  of  this  view  the  language  used  in  Slaughter-House 
Cases,  16  Wall.  36  {supra,  p.  18),  is  quoted  at  length.] 

The  only  adjudication  that  has  been  made  by  this  court  upon  the 
meaning  of  the  clause,  "and  subject  to  the  jurisdiction  thereof,"  in 
the  leading  provision  of  the  Fourteenth  Amendment,  is  Elk  v. 
Wilkins,  112  U.  S.  94,  in  which  it  was  decided  that  an  Indian 
born  a  member  of  one  of  the  Indian  tribes  within  the  United 
States,  which  still  existed  and  was  recognized  as  an  Indian  tribe 
by  the-  United  States,  who  had  voluntarily  separated  himself  from 
his  tribe,  and  taken  up  his  residence  among  the  white  citizens  of  a 
State,  but  who  did  not  appear  to  have  been  naturalized,  or  taxed, 
or  in  any  way  recognized  or  treated  as  a  citizen,  either  by  the 
United  States  or  by  the  State,  was  not  a  citizen  of  the  United 
States,  as  a  person  born  in  the  United  States,  "and  subject  to  the 
jurisdiction  thereof,"  within  the  meaning  of  the  clause  in  question.^ 

That  decision  was  placed  upon  the  grounds,  that  the  meaning  of 
those  words  was,  "not  merely  subject  in  some  respect  or  degree 
to  the  jursidiction  of  the  United  States,  but  completely  subject  to 
their  political  jurisdiction,  and  owing  them  direct  and  immediate 
allegiance;"  that  by  the  Constitution,  as  originally  established, 
"Indians  not  taxed"  were  excluded  from  the  persons  according  to 
whose  numbers  representatives  in  Congress  and  direct  taxes  were 
apportioned  among  the  several  States,  and  Congress  was  empowered 
to  regulate  commerce,  not  only  "with  foreign  nations,"  and  among 
the  several  States,  but  "with  the  Indian  tribes;"  that  the  Indian 
tribes,  being  within  the  territorial  limits  of  the  United  States, 
were  not,  strictly  speaking,  foreign  States,  but  were  alien  nations, 
distinct  political  communities,  the  members  of  which  owed  imme- 
diate allegiance  to  their  several  tribes,  and  were  not  part  of  the 
people  of  the  United  States;  that  the  alien  and  dependent  condi- 
tion of  the  members  of  one  of  those  tribes  could  not  be  put  oif  at 
their  qwn  will,  without  the  action  or  assent  of  the  United  States; 
and  that  they  were  never  deemed  citizens,  except  when  naturalized, 

^  [Rut  now  see  provisious  of  act  of  1887,  24  Stat.  388,  by  which  Indians  may  become 
citizens] 


970  POLITICAL   PRIVILEGES.  [CHAP.  XI7. 

collectively  or  individually,  under  exiplicit  provisions  of  a  treaty, 
or  of  an  act  of  Congress;  and,  therefore,  that  "Indians  born  within 
the  territorial  limits  of  the  United  States,  members  of,  and  owing 
immediate  allegiance  to,  one  of  the  Indian  tribes  (an  alien,  though 
•dependent,  power),  although  in  a  geographical  sense  born  in  the 
United  States,  are  no  more  '  born  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,'  within  tlie  meaning  of  the  first  section 
of  the  Fourteenth  Amendment,  than  the  children  of  subjects  of  any 
foreign  government  born  within  the  domain  of  that  government,  or 
the  children  born  within  the  United  States  of  ambassadors  or  other 
public  ministers  of  foreign  nations."  And  it  was  observed  that 
the  language  used,  in  defining  citizenship,  in  the  first  section  of  the 
Civil  Rights  Act  of  18G6,  by  the  very  Congress  which  framed  the 
Fourteenth  Amendment,  was  "all  persons  born  in  the  United 
States,  and  not  subject  to  any  foreign  power,  excluding  Indians  not 
taxed."     112  U.  S.  99-103. 

The  decision  in  Elk  v.  Wilkins  concerned  only  members  of  the 
Indian  tribes  within  the  United  States,  and  had  no  tendency  to 
deny  citizenship  to  children  born  in  the  United  States  of  foreign 
parents  of  Caucasian,  African,  or  Mongolian  descent,  not  in  the 
diplomatic  service  of  a  foreign  country. 

The  real  object  of  the  Fourteenth  Amendment  of  the  Constitution 
in  qualifying  the  words,  "All  persons  born  in  the  United  States," 
by  the  addition,  "and  subject  to  the  jurisdiction  thereof,"  would 
appear  to  have  been  to  exclude,  by  the  fewest  and  fittest  words 
(besides  children  of  members  of  the  Indian  tribes,  standing  in  a 
peculiar  relation  to  the  national  government,  unknown  to  the 
common  law),  the  two  classes  of  cases,  —  children  born  of  alien 
enemies  in  hostile  occupation,  and  children  of  diplomatic  represent- 
atives of  a  foreign  State,  — both  of  which  as  has  already  been 
shown,  by  the  law  of  England,  and  by  our  own  law,  from  the  time 
of  the  first  settlement  of  the  English  colonies  in  America,  had  been 
recognized  exceptions  to  the  fundamental  rule  of  citizenship  by 
birth  within  the  country.  Calvin's  Case,  7  Coke,  1,  18  b;  Cockburn 
on  Nationality,  7;  Dicey,  Conflict  of  Laws,  177;  Inglis  v.  Sailors' 
Snug  Harbor,  3  Pet.  99,  lo5;  2  Kent  Com.  39,  42. 

[The  case  of  The  Exchange,  7  Cranch,  116,  and  opinions  of 
Secretaries  of  State  and  Attorneys-General  are  quoted  from  at 
length.] 

.The  foregoing  considerations  and  authorities  irresistibly  lead  us 
to  these  conclusions :  The  Fourteenth  Amendment  affirms  the 
ancient  and  fundamental  rule  of  citizenship  by  birth  within  the 
territory,  in  the  allegiance  and  under  the  protection  of  the  country, 
including  all  children  here  born  of  resident  aliens,  with  the  excep- 
tions or  qualifications  (as  old  as  the  rule  itself)  of  children  of  foreign 
sovereigns  or  their  ministers,  or  born  on  foreign  public  ships,  or 


SECT.  I.  a.]  UNITED    STATES   V.   WONG    KIM   ARK.  971 

of  enemies  within  and  during  a  hostile  occupation  of  part  of  our 
territory,  and  with  the  single  additional  exception  of  children  of 
members  of  the  Indian  tribes  owing  direct  allegiance  to  their 
several  tribes.  The  amendment,  in  clear  words  and  in  manifest 
intent,  includes  the  children  born,  within  the  territory  of  the 
United  States,  of  all  other  persons.,  of  whatever  race  or  color, 
domiciled  within  the  United  States.  .  Every  citizen  or  subject  of 
another  country,  while  domiciled  here,  is  within  the  allegiance  and 
the  protection,  and  consequently  subject  to  the  jurisdiction,  of  the 
United  States.  His  allegiance  to  the  United  States  is  direct  and 
immediate,  and,  although  but  local  and  temporary,  continuing  only 
so  long  as  he  remains  within  our  territory,  is  yet,  in  the  words  of 
Lord  Coke,  in  Calvin's  Case,  7  Coke,  6«,  ''strong  enough  to  make  a 
natural  subject,  for  if  he  hath  issue  here,  that  issue  is  a  natural- 
born  subject;"  and  his  child,  as  said  by  Mr.  Binney  in  his  essay 
before  quoted,  "if  born  in  the  country,  is  as  much  a  citizen  as  the 
natural-born  child  of  a  citizen,  and  by  operation  of  the  same  prin- 
ciple." It  can  hardly  be  denied  that  an  alien  is  completely  subject 
to  the  political  jurisdiction  of  the  country  in  which  he  resides  — 
seeing  that,  as  said  by  Mr.  Webster,  when  Secretary  of  State,  in  his 
Report  to  the  President  on  Thrasher's  case  in  J  851,  and  since  re- 
peated by  this  court,  "  independently  of  a  residence  with  intention 
to  continue  such  residence;  independently  of  any  domiciliation; 
independently  of  the  taking  of  any  oath  of  allegiance  or  of  renounc- 
ing any  former  allegiance,  it  is  well  known  that,  by  the  public  law, 
an  alien,  or  a  stranger  born,  for  so  long  a  time  as  he  continues 
within  the  dominions  of  a  foreign  government,  owes  obedience  to 
the  laws  of  that  government,  and  may  be  punished  for  treason,  or 
other  crimes,  as  a  native-born  subject  might  be,  unless  his  case  is 
varied  by  some  treaty  stipulations."  Ex.  Doc.  H.  R.  Ko.  10,  1st 
sess.  32d  Congress,  p.  4;  6  Webster's  Works,  526;  United  States  v. 
Carlisle,  IG  Wall.  147,  155;  Calvin's  Case,  7  Coke,  6a;  Ellesmere, 
Postnati,  63;  1  Hale  P.  C.  62;  4  Bl.  Com.  74,  92. 

To  hold  that  the  Fourteenth  Amendment  of  the  Constitution 
excludes  from  citizenship  the  children,  born  in  the  United  States 
of  citizens  or  subjects  of  other  countries,  would  be  to  deny  citizen- 
ship to  thousands  of  persons  of  English,  Scotch,  Irish,  German,  or 
other  European  parentage,  who  have  always  been  considered  and 
treated  as  citizens  of  the  United  States. 

The  acts  of  Congress,  known  as  the  Chinese  Exclusion  Acts,  the 
earliest  of  which  was  passed  some  fourteen  years  after  the  adoption 
of  the  constitutional  amendment,  cannot  control  its  meaning,  or 
impair  its  effect,  but  must  be  construed  and  executed  in  subordina- 
tion to  its  provisions.  And  the  right  of  the  United  States,  as  exer- 
cised by  and  under  those  acts,  to  exclude  or  to  expel  from  the 
<;ountry  persons  of  the  Chinese  race,  born  in  China,  and  continuing 


972  POLITICAL   PRIVILEGES.  [CHAP.  XIV. 

to  be  subjects  of  the  Emperor  of  China,  though  having  acquired  a 
commercial  domicile  in  the  United  States,  has  been  upheld  by  this 
court,  for  reasons  applicable  to  all  aliens  alike,  and  inapplicable  to 
citizens,  of  whatever  race  or  color.  Chae  Chan  Ping  v.  United 
States,  130  U.  S.  581;  Nishimura  Ekiu  v.  United  States,  142  U.  S. 
651;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  Lem  Moon 
Sing  y.  United  States,  158  U.  S.  538;  Wong  Wing  v.  United  States, 
163  U.  S.  228. 

It  is  true  that  Chinese  persons  born  in  China  cannot  be  naturalized, 
like  other  aliens,  by  proceedings  under  the  naturalization  laws. 
But  this  is  for  want  of  any  statute  or  treaty  authorizing  or  permit- 
ting such  naturalization,  as  will  appear  by  tracing  the  history  of 
the  statutes,  treaties,  and  decisions  upon  that  subject  —  always  bear- 
ing in  mind  that  statutes  enacted  by  Congress,  as  well  as  treaties 
made  by  the  President  and  Senate,  must  yield  to  the  paramount 
and  supreme  law  of  the  Constitution. 

The  fact,  therefore,  that  acts  of  Congress  or  treaties  have  not 
permitted  Chinese  persons  born  out  of  this  country  to  become  citi- 
zens by  naturalization,  cannot  exclude  Chinese  persons  born  in  this 
country  from  the  operation  of  the  broad  and  clear  words  of  the 
Constitution,  "All  persons  born  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States." 

VII.  Upon  the  facts  agreed  in  this  case,  the  American  citizen- 
ship which  Wong  Kim  Ark  acquired  by  birth  within  the  United 
States  has  not  been  lost  or  taken  away  by  anything  happening 
since  his  birth.  No  doubt  he  might  himself,  after  coming  of  age, 
renounce  this  citizenship,  and  become  a  citizen  of  the  country  of 
his  parents,  or  of  any  other  country;  for  by  our  law,  as  solemnly 
declared  by  Congress,  "the  right  of  expatriation  is  a  natural  and 
inherent  right  of  all  people,"  and  "any  declaration,  instruction, 
opinion,  order,  or  direction  of  any  officer  of  the  United  States, 
which  denies,  restricts,  impairs,  or  questions  the  right  of  expatria- 
tion, is  declared  inconsistent  with  the  fundamental  principles  of 
the  Republic."  Rev.  Stat.  §  1999,  re-enacting  act  of  July  27, 
1868,  c.  249,  §  1;  15  Stat.  223,  224.  Whether  any  act  of  himself, 
or  of  his  parents,  during  his  minority,  could  have  the  same  effect,  is 
at  least  doubtful.  But  it  would  be  out  of  place  to  pursue  that 
inquiry;  inasmuch  as  it  is  expressly  agreed  that  his  residence  has 
always  been  in  the  United  States,  and  not  elsewhere;  that  each  of 
his  temporary  visits  to  China,  the  one  for  some  months  when  he  was 
about  seventeen  years  old,  and  the  other  for  something  like  a  year 
about  the  time  of  his  coming  of  age,  was  made  with  the  intention  of 
returning,  and  was  followed  by  his  actual  return,  to  the  United 
States;  and  "that  said  Wong  Kim  Ark  has  not,  either  by  himself 
or  his  parents  acting  for  him,  ever  renounced  his  allegiance  to  the 


vhK.' 


SECT.  I.  a.]  UNITED   STATES   V.   WONG   KIM    ARK.  973 

United  States,  and  that  he  has  never  done  or  committed  any  act  or 
thing  to  exclude  him  therefrom." 

The  evident  intention,  and  the  necessary  effect,  of  the  submission 
of  this  case  to  the  decision  of  the  court  upon  the  facts  agreed  by  the 
parties,  were  to  present  for  determination  the  single  question,  stated 
at  the  beginning  of  this  opinion,  namely,  whether  a  child  born  in 
the  United  States,  of  parents  of  Chinese  descent,  who,  at  the  time 
of  his  birth,  are  subjects  of  the  Emperor  of  China,  but  have  a  per- 
manent domicile  and  residence  in  the  United  States,  and  are  there 
carrying  on  business,  and  are  not  employed  in  any  diplomatic  or 
official  capacity  under  the  Emperor  of  China,  becomes  at  the  time 
of  his  birth  a  citizen  of  the  United  States.  For  the  reasons  above 
stated,  this  court  is  of  opinion  that  the  question  must  be  answered 
in  the  affirmative.  Order  affirmed.^ 

1  Mr.  Chief  Justice  Fuller  delivered  a  dissenting  opinion  (Mr.  Justice  Har- 
lan concurring),  in  wliich  the  following  language  was  used  :  — 

"I  think  it  follows  that  the  children  of  Ciiinese  born  in  this  country  do  not,  ipso 
facto,  become  citizens  of  the  United  States  unless  the  Fourteenth  Amendment  over- 
rides both  treaty  and  statute.  Does  it  bear  that  construction  ;  or  ratlier  is  it  not  the 
proper  construction  that  all  persons  born  in  the  United  States  of  parents  permanently 
residing  here  and  susceptible  of  becoming  citizens,  and  not  prevented  therefrom  by 
treaty  or  statute,  are  citizens,  and  not  otherwise  1 

"  But  the  Chinese  under  their  form  of  government,  the  treaties  and  statutes,  can- 
not become  citizens  nor  acquire  a  permanent  home  here,  no  matter  what  the  length 
of  their  stay  may  be.     Wharton,  Confl.  Laws,  §  12. 

"  In  Fong  Yue  Ting  r.  United  States,  149  U.  S.  698,  717,  it  was  said  in  respect  of 
the  treaty  of  1868  :  'After  some  years'  experience  under  tliat  treaty,  the  government 
of  the  United  States  was  brought  to  the  opinion  that  tlie  jjresence  within  our  territory 
of  large  numbers  of  Chinese  laborers,  of  a  distinct  race  and  religion,  remaining 
strangers  in  the  land,  residing  apart  by  themselves,  tenaciously  adhering  to  the  cus- 
toms and  usages  of  their  own  country,  unfamiliar  with  our  institutions,  and  appar- 
ently incapable  of  assimilating  with  our  people,  might  endanger  good  order,  and  be 
injurious  to  the  public  interests;  and  therefore  requested  and  obtained  from  China 
a  modification  of  the  treaty.' 

"It  is  not  to  be  admitted  that  the  children  of  persons  so  situated  become  citizens 
by  the  accident  of  birth.  On  the  contrary,  I  am  of  opinion  that  the  President  and 
Senate  by  treaty,  and  the  Congress  by  naturalization,  have  the  power,  notwithstand- 
ing the  Fourteenth  Amendment,  to  prescribe  that  all  ))ersons  of  a  particular  race,  or 
their  children,  cannot  become  citizens,  and  that  it  results  that  the  consent  to  allow 
such  persons  to  come  into  and  reside  within  our  geographical  limits  does  not  carry  with 
it  the  imposition  of  citizenship  upon  children  born  to  them  while  in  this  country  under 
such  consent,  in  spite  of  treaty  and  statute. 

"  In  other  words,  the  Fourteenth  Amendment  does  not  exclude  from  citizenship  by 
birth  children  born  in  the  United  States  of  parents  permanently  located  therein,  and 
who  might  themselves  become  citizens ;  nor,  on  the  other  hand,  does  it  arbitrarily 
make  citizens  of  children  born  in  the  United  States  of  parents  who,  according  to  the 
■will  of  their  native  government  and  of  this  government,  are  and  must  remain  aliens," 

[As  tp  citizenship  of  inhabitants  of  territory  annexed  to  the  United 
States,  see  cases  in  Appendix  B,  p.  1119.  As  to  the  administration 
of  alien  exclusion  laws  see  the  case  of  the  United  States  v.  Ju  Toy, 
198  U.  S.  253,  Appendix  D,  p.  1281.] 


974  POLITICAL  PRIVILEGES.  [CHAP.  XIV. 


b.   Privileges  and  Immunities  of  Citizens. 

TWINING  V.   NEW  JEKSEY. 

211  U.  S.  78;  29  Sup.  Ct.  Rep.  14.     1908. 

[See  sitjjra,  p.  17.] 


SLAUGHTER-HOUSE   CASES. 
16  Wallace,  36.     1872. 
[See  supra,  p.  18.] 


UNITED  STATES   v.   CRUIKSHANK. 

92  United  States,  542.     1875. 

[See  supra,  p.  31.] 


CIVIL  RIGHTS   CASES. 

109  United  States,  3.     1883. 

[See  s%ipra,  p.  37,  in  note.] 


Section  II.  —  Suffrage  and  Elections. 

MINOR   V.   HAPPERSETT. 

21  Wallace,  162.     1874. 

[This  action  was  brought  in  the  State  courts  of  Missouri  by  plain- 
tiff, a  person  who  would  have  been  entitled  to  vote  under  the  con- 
stitution and  laws  of  Missouri  save  for  the  fact  that  she  was  a 
woman,  to  recover  damages  against  the  defendant,  a  registrar  of 
voters  in  the  State  of  Missouri,  for  refusing  to  register  her  as  a 
duly  qualified  elector.  The  decision  of  the  Supreme  Court  of 
Missouri  sustaining  the  lower  court  was  that  the  provisions  of  the 
constitution  and  laws  of  Missouri,  restricting  the  elective  franchise 


SECT.  II.]  MINOR   v.    HAPPERSETT.  975 

to  males,  was  not  in  violation  of  the  Federal  Constitution,  and  plain- 
tiff brought  the  cause  to  this  court  by  writ  of  error.] 

]\Ik.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 
The  question  is  presented  in  tliis  case,  whether,  since  the  adop- 
tion of  the  Fourteenth  Amendment,  a  woman,  who  is  a  citizen  of 
the  United  States  and  of  the  State  of  Missouri,  is  a  voter  in  that 
State,  notwithstanding  the  provision  of  the  constitution  and  laws  of 
the  State,  which  contine  the  right  of  suffrage  to  men  alone.  We 
might,  perhaps,  decide  the  case  upon  other  grounds,  but  this  ques- 
tion is  fairly  made.  From  the  opinion  we  find  that  it  was  the  only 
one  decided  in  the  court  below,  and  it  is  the  only  one  which  has 
been  argued  here.  The  case  was  undoubtedly  brought  to  this 
court  for  the  sole  purpose  of  having  that  question  decided  by  us, 
and  in  view  of  the  evident  propriety  there  is  of  having  it  settled, 
so  far  as  it  can  be  by  such  a  decision,  we  have  concluded  to  waive 
all  other  considerations  and  proceed  at  once  to  its  determination. 

It  is  contended  that  the  provisions  of  the  constitution  and  laws 
of  the  State  of  Missouri,  which  confine  the  right  of  suffrage  and 
registration  therefor  to  men,  are  in  violation  of  the  Constitution  of 
the  United  States,  and  therefore  void.  The  argument  is,  that  as  a 
woman,  born  or  naturalized  in  the  United  States  and  subject  to  the 
jurisdiction  thereof,  is  a  citizen  of  the  United  States  and  of  the 
State  in  which  she  resides,  she  has  the  right  of  suffrage  as  one  of 
the  privileges  and  immunities  of  her  citizenship,  which  the  State 
cannot  by  its  laws  or  constitution  abridge. 

There  is  no  doubt  that  women  may  be  citizens.  They  are  per- 
sons, and  by  the  Fourteenth  Amendment  "all  persons  born  or 
naturalized  in  the  United  States  and  subject  to  the  jurisdiction 
thereof"  are  expressly  declared  to  be  "citizens  of  the  United  States 
and  of  the  State  wherein  they  reside."  But,  in  our  opinion,  it  did 
not  need  this  amendment  to  give  them  that  position.  Before  its 
adoption  the  Constitution  of  the  United  States  did  not  in  terms 
prescribe  who  should  be  citizens  of  the  United  States  or  of  the 
several  States,  yet  there  were  necessarily  such  citizens  without 
such  provision.  There  cannot  be  a  nation  without  a  people.  The 
very  idea  of  a  political  community,  such  as  a  nation  is,  implies  ^n 
association  of  persons  for  the  promotion  of  their  general  Avelfare. 
Each  one  of  the  persons  associated  becomes  a  member  of  the  nation 
formed  by  the  association.  He  owes  it  allegiance  and  is  entitled 
to  its  protection.  Allegiance  and  protection  are,  in  this  connection, 
reciprocal  obligations.  The  one  is  a  compensation  for  the  other; 
allegiance  for  protection  and  protection  for  allegiance. 

For  convenience  it  has  been  found  necessary  to  give  a  name  to 
this  membership.  The  object  is  to  designate  by  a  title  the  person 
and  the  relation  he  bears  to  the  nation.  For  this  purpose  the 
words  "subject,"  "inhabitant,"  and  "citizen"  have  been  used,  and 
the  choice  between  them  is  sometimes  made  to  depend  upon   the 


976  POLITICAL   PRIVILEGES.  [CHAP.  XIV. 

form  of  the  government.  Citizen  is  now  more  commonly  employed, 
however,  and  as  it  has  been  considered  better  suited  to  the  descrip- 
tion of  one  living  under  a  republican  government,  it  was  adopted 
by  nearly  all  of  the  States  upon  their  separation  from  Great 
Britain,  and  was  afterwards  adopted  in  the  Articles  of  Confedera- 
tion and  in  the  Constitution  of  the  United  States.  When  used  in 
this  sense  it  is  understood  as  conveying  the  idea  of  membership  of 
a  nation,  and  nothing  more. 

To  determine,  then,  who  were  citizens  of  the  United  States  before 
the  adoption  of  the  amendment  it  is  necessary  to  ascertain  what 
persons  originally  associated  themselves  together  to  form  the 
nation,  and  what  were  afterwards  admitted  to  membership. 

Looking  at  the  Constitution  itself  we  find  that  it  was  ordained 
and  established  by  "  the  people  of  the  United  States  "  (Preamble, 
1  Stat.  10),  and  then  going  further  back,  we  find  that  these  were  the 
people  of  the  several  States  that  had  before  dissolved  the  political 
bands  which  connected  them  with  Great  Britain,  and  assumed  a  sepa- 
rate and  equal  station  among  the  powers  of  the  earth  (Declaration  of 
Independence,  1  Stat.  1),  and  that  had  by  Articles  of  Confederation 
and  Perpetual  Union,  in  which  they  took  the  name  of  "  the  United 
States  of  America,"  entered  into  a  firm  league  of  friendship  with  each 
other  for  their  common  defence,  the  security  of  their  liberties  and 
their  mutual  and  general  welfare,  binding  themselves  to  assist  each 
other  against  all  force  offered  to  or  attack  made  upon  them,  or  any 
of  them,  on  account  of  religion,  sovereignty,  trade,  or  any  other  pre- 
tence whatever  (Articles  of  Confederation,  §  3,  1  Stat.  4). 

Whoever,  then,  was  one  of  the  people  of  either  of  these  States 
when  the  Constitution  of  the  United  States  was  adopted,  became 
ipso  facto  a  citizen  —  a  member  of  the  nation  created  by  its  adop- 
tion. He  was  one  of  the  persons  associating  together  to  form  the 
nation,  and  was,  consequently,  one  of  its  original  citizens.  As  to 
this  there  has  never  been  a  doubt.  Disputes  have  arisen  as  to 
whether  or  not  certain  persons  or  certain  classes  of  persons  were 
part  of  the  people  at  the  time,  but  never  as  to  their  citizenship  if 
they  were. 

Additions  might  always  be  made  to  the  citizenship  of  the  United 
States  in  two  ways:  first,  by  birth,  and  second,  by  naturalization. 
This  is  apparent  from  the  Constitution  itself,  for  it  provides  (Article 
2,  §  1)  that  "no  person  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  the  Constitution, 
shall  be  eligible  to  the  office  of  President"  (Article  1,  §  8),  and  that 
Congress  shall  have  power  "to  establish  a  uniform  rule  of  naturali- 
zation." Thus  new  citizens  may  be  born  or  they  may  be  created  by 
naturalization. 

[Legislation  as  to  naturalization  is  referred  to,  indicating  that 
alien  women  and  alien  minors  may  become  citizens  by  naturaliza- 


& 


SECT.  II.]  MINOR   V.    HAPPERSETT.  977 

tion.  Other  Federal  legislation  is  referred  to,  the  character  of 
which  indicates  that  women  are  citizens  and  entitled  to  all  the 
privileges  and  immunities  of  citizenship.] 

If  the  right  of  suifrage  is  one  of  the  necessary  privileges  of  a 
citizen  of  the  United  States,  then  the  constitution  and  laws  of 
Missouri  confining  it  to  men  are  in  violation  of  the  Constitution  of 
the  United  States,  as  amended,  and  consequently  void.  The  direct 
question  is,  therefore,  presented  whether  all  citizens  are  necessarily 
voters. 

The  Constitution  does  not  define  the  privileges  and  immunities  of 
citizens.  For  that  definition  we  must  look  elsewhere.  In  this  case 
we  need  not  determine  what  they  are,  but  only  whether  suffrage  is 
necessarily  one  of  them. 

The  [Fourteenth]  Amendment  did  not  add  to  the  privileges  and 
immunities  of  a  citizen.  It  simply  furnished  an  additional  guaranty 
for  the  protection  of  such  as  he  already  had.  No  new  voters  were 
necessarily  made  by  it.  Indirectly  it  may  have  had  that  effect, 
because  it  may  have  increased  the  number  of  citizens  entitled  to 
suffrage  under  the  constitution  and  laws  of  the  States,  but  it  oper- 
ates for  this  purpose,  if  at  all,  through  the  States  and  the  State 
laws,  and  not  directly  upon  the  citizen. 

It  is  clear,  therefore,  we  think,  that  the  Constitution  has  not 
added  the  right  of  suffrage  to  the  privileges  and  immunities  of 
citizenship  as  they  existed  at  the  time  it  was  adopted.  This  makes 
it  proper  to  inquire  whether  suffrage  was  co-extensive  with  the 
citizenship  of  the  States  at  the  time  of  its  adoption.  If  it  was, 
then  it  may  with  force  be  argued  that  suffrage  was  one  of  the 
lights  which  belonged  to  citizenship,  and  in  the  enjoyment  of  which 
every  citizen  must  be  protected.  But  if  it  was  not,  the  contrary 
may  with  propriety  be  assumed. 

[The  early  constitutions  of  the  State  are  referred  to  as  indicating 
that  in  all  the  States  at  the  time  the  Federal  Constitution  was 
adopted  the  right  to  vote  was  not  conferred  upon  all  citizens. 
Article  4,  §  2,  and  the  Fourteenth  and  Fifteenth  Amendments  of 
the  Federal  Constitution  are  referred  to  as  indicating  that  the 
privileges  and  immunities  of  tlie  citizens  in  the  several  States  do 
not  include  the  right  of  suffrage.] 

It  is  true  that  the  United  States  guarantees  to  every  State  a 
republican  form  of  government  (Constitution,  Article  4,  §  4).  It 
is  also  true  that  no  State  can  pass  a  bill  of  attainder  (Article  1,  §  10), 
and  that  no  person  can  be  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law  (ib.  Amendment  5).  All  these  several  pro- 
visions of  the  Constitution  must  be  construed  in  connection  with  the 
other  parts  of  the  instrument,  and  in  the  light  of  the  surrounding 
circumstances. 

The  guaranty  is  of  a  republican  form  of  government.     No  par- 

62 


978  POLITICAL  PRIVILEGES.  [CHAP.  XIV. 

ticular  govemment  is  designated  as  republican,  neither  is  the 
exact  form  to  be  guaranteed,  in  any  manner  especially  designated. 
Here,  as  in  other  parts  of  the  instrument,  we  are  compelled  to 
resort  elsewhere  to  ascertain  what  was  intended. 

The  guaranty  necessarily  implies  a  duty  on  the  part  of  the  States 
themselves  to  provide  such  a  government.  All  the  States  had  gov- 
ernments when  the  Constitution  was  adopted.  In  all  the  people 
participated  to  some  extent,  through  their  representatives  elected  in 
the  manner  specially  provided.  These  governments  the  Constitu- 
tion did  not  change.  They  were  accepted  precisely  as  they  were, 
and  it  is,  therefore,  to  be  presumed  that  they  were  such  as  it  was 
the  duty  of  the  States  to  provide.  Thus  we  have  unmistakable 
evidence  of  what  was  republican  in  form,  within  the  meaning  of 
that  term  as  employed  in  tlie  Constitution. 

As  has  been  seen,  all  the  citizens  of  the  States  were  not  invested 
with  the  right  of  suffrage.  In  all,  save  perhaps  oSTew  Jersey,  this 
right  was  only  bestowed  ujDon  men  and  not  upon  all  of  them. 
Under  these  circumstances  it  is  certainly  now  too  late  to  contend 
that  a  government  is  not  republican,  within  the  meaning  of  this 
guaranty  in  the  Constitution,  because  women  are  not  made  voters. 

Besides  this,  citizenship  has  not  in  all  cases  been  made  a  condi- 
tion precedent  to  the  enjoyment  of  the  right  of  suffrage.  Thus,  in 
Missouri,  persons  of  foreign  birth,  who  have  declared  their  inten- 
tion to  become  citizens  of  the  United  States,  may  under  certain 
circumstances  vote.  The  same  provision  is  to  be  found  in  the  con- 
stitutions of  Alabama,  Arkansas,  Florida,  Georgia,  Indiana,  Kansas, 
Minnesota,  and  Texas. 

Certainly,  if  the  courts  can  consider  any  question  settled,  this  is 
one.  For  nearly  ninety  years  the  people  have  acted  upon  the  idea 
that  the  Constitution,  when  it  conferred  citizenship,  did  not  neces- 
sarily confer  the  right  of  suffrage.  If  uniform  practice  long  con- 
tinued can  settle  the  construction  of  so  important  an  instrument  as 
the  Constitution  of  the  United  States  confessedly  is,  most  certainly 
it  has  been  done  here.  Our  province  is  to  decide  what  the  law  is, 
not  to  declare  what  it  should  be. 

We  have  given  this  case  the  careful  consideration  its  importance 
demands.  If  the  law  is  wrong,  it  ought  to.  be  changed;  but  the 
power  for'  that  is  not  with  us.  The  arguments  addressed  to  us 
bearing  upon  such  a  view  of  the  subject  may  perhaps  be  sufficient 
to  induce  those  having  the  power,  to  make  the  alteration,  but  they 
ought  not  to  be  permitted  to  influence  our  judgment  in  determining 
the  present  rights  of  the  parties  now  litigating  before  us.  No 
argument  as  to  woman's  need  of  suffrage  can  be  considered.  We 
can  onl}^  act  upon  her  rights  as  they  exist.  It  is  not  for  us  to  look 
at  the  hardship  of  withholding.  Our  duty  is  at  an  end  if  we  find 
it  is  within  the  power  of  a  State  to  withhold. 


SECT.  III.]  UNITED   STATES   V.   CRDIKSHANK.  979 

Being  unanimously  of  the  opinion  that  the  Constitution  of  the 
United  States  does  not  confer  the  right  of  suffrage  vipon  any  one, 
and  that  the  constitutions  and  laws  of  the  several  States  which  com- 
mit that  important  trust  to  men  alone  are  not  necessarily  void,  we 

Affirm  the  judgmenV^ 

1  In  the  case  of  Wiley  r.  Sinkler,  179  U.  S.  58,  21  Sup.  Ct.  Kep.  17  (1900),  it  is 
held  that  the  right  to  vote  fur  njembers  of  Congress  has  its  foundation  in  the  Constitu- 
tion of  the  United  States.  "  'lliis  is  clearly  and  amply  set  forth  in  Ex  parte  Yarbrough, 
110  U.  S.  651,  in  which  this  court,  speaking  by  Mr.  Justice  Miller,  upheld  a  conviction 
in  a  Circuit  Court  of  tiie  United  States  under  sections  5508  and  5520  of  the  Revised 
Statutes  for  a  conspiracy  to  intimidate  a  citizen  of  the  United  States  in  the  exercise  of 
his  right  to  vote  for  a  member  of  Congress  ;  and  answered  the  proposition  '  that  the 
right  to  vote  for  a  member  of  Congress  is  not  dependent  upon  tlie  Constitution  or  laws 
of  the  United  States,  but  is  governed  by  the  law  of  each  State  respectively,'  as  follows : 
'  But  it  is  not  correct  to  say  that  the  right  to  vote  for  a  member  of  Congress  does  not 
depend  on  the  Constitution  of  the  Ignited  States.  Tlie  office,  if  it  be  properly  called  an 
office,  is  created  by  that  Constitution  and  by  that  alone.  It  also  declares  how  it  shall 
be  filled,  namely,  by  election.  Its  language  is  "  The  Hf^useof  Representatives  shall  be 
composed  of  members  chosen  every  second  year  by  the  people  of  the  several  States,  and 
the  electors  in  each  State  shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  state  legislature."  Art.  1,  sec.  2.  The  States,  in  pre>cribing 
the  qualifications  of  voters  for  the  most  numerous  branch  of  their  own  legi.slatures,  do 
not  do  this  with  reference  to  the  election  for  members  of  Congress.  Nor  can  they  pre- 
scribe the  qualification  for  voters  for  those  eo  nomine.  They  define  who  are  to  vote  for 
the  popular  branch  of  their  own  legislature,  and  the  Constitution  of  the  United  States 
says  the  same  persons  shall  vote  for  members  of  Congress  in  that  State.  It  adopts  the 
qualification  thus  furnished  as  the  qualification  of  its  own  electors  for  members  of 
Congress.  It  is  not  true,  therefore,  that  electors  for  members  of  Congress  owe  their 
right  to  vote  to  the  State  law  in  any  sense  which  makes  the  exercise  of  the  right  to 
depend  exclusively  on  the  law  of  the  State.'     110  U.  S.  663." 


Ex  PARTE  SIEBOLD. 

100  United  States,  371.     1879. 

[See  sui^ra^  p.  56.] 


Section  III.  —  Rights  to  Assemble  and  to  bear  Arms. 


UNITED   STATES   v.   CRUIKSHANK. 

92  United  States,  542.     1875. 

[See  supra,  p.  31.] 


980  PROTECTION   TO   PERSONS   ACCUSED   OF   CRIME.       [CHAP.  XV, 


CHAPTER   XV. 
PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME. 


CALDER  V.  BULL. 
3  Dallas,  386  ;  1  Curtis,  269,     1798. 

Chase,  J.  The  decision  of  one  question  determines,  in  my  opinion, 
the  present  dispute.  I  shall,  therefore,  state  from  the  record  no 
more  of  the  case  than  I  think  necessary  for  the  consideration  of  that 
question  only. 

The  legislature  of  Connecticut,  on  the  second  Thursday  of  May, 

1795,  passed  a  resolution  or  law,  which,  for  the  reasons  assigned,  set 
aside  a  decree  of  the  Court  of  Probate  for  Hartford,  on  the  21st  of 
March,  1793,  which  decree  disapproved  of  the  will  of  Normand  Mor- 
rison, the  grandson,  made  the  21st  of  August,  1779,  and  refused  to 
record  the  said  will ;  and  granted  a  new  hearing  by  the  said  Court  of 
Probate,  with  liberty  of  appeal  therefrom,  in  six  months.  A  new 
hearing  was  had,  in  virtue  of  this  resolution,  or  law,  before  the  said 
Court  of  Probate,  who,  on  the  27th  of  July,  1795,  approved  the  said 
will,  and  ordered  it  to  be  recorded.  At  August,  1795,  appeal  was 
then  had  to  the  Superior  Court  at  Hartford,  who,  at  February  term, 

1796,  affirmed  the  decree  of  the  Court  of  Probate.  Appeal  was  had 
to  the  Supreme  Court  of  Errors  of  Connecticut,  who,  in  June,  1796, 
adjudged  that  there  were  no  errors.  More  than  eighteen  months 
elapsed  from  the  decree  of  the  Court  of  Probate,  on  the  1st  of  March, 
1793,  and  thereby  Caleb  Bull  and  wife  were  barred  of  all  right  of 
appeal,  by  a  statute  of  Connecticut.  There  was  no  law  of  that  State 
whereby  a  new  hearing,  or  trial,  before  the  said  Court  of  Probate 
might  be  obtained.  Calder  and  wife  claim  the  premises  in  question, 
in  right  of  his  wife,  as  heiress  of  N.  INIorrison,  physician  ;  Bull  and 
wife  claim  under  the  will  of  N.  Morrison,  the  grandson. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  said  resolu- 
tion or  law  of  the  legislature  of  Connecticut,  granting  a  new  hearing 
in  the  above  case,  is  an  ex  post  facto  law,  prohibited  by  the  Constitu- 
tion of  the  United  States ;  that  any  law  of  the  Federal  government, 
or  of  any  of  the  State  governments,  contrary  to  the  Constitution  of 
the  United  States,  is  void ;  and  that  this  court  possesses  the  power 
to  declare  such  law  void. 


i 


CHAP.  XV.]  CALDER  V.    BULL.  981 

[The  question  whether  the  legislature  of  a  State  can  revise  and 
correct  by  law  a  decision  of  a  court  of  justice  is  also  considered.  On 
this  question  see  Taylor  v.  Place,  4  R.  I.  324,  supra,  p.  79.] 

All  the  restrictions  contained  in  the  Constitution  of  the  United 
States  on  the  power  of  the  State  legislatures,  were  provided  in  favor 
of  the  authority  of  the  Federal  government.  The  prohibition  against 
their  making  any  ex  post  facto  laws  was  introduced  for  greater  cau- 
tion, and  very  probably  arose  from  the  knowledge  that  the  Parlia- 
ment of  Great  Britain  claimed  and  exercised  a  power  to  pass  such 
laws,  under  the  denomination  of  bills  of  attainder,  or  bills  of  pains 
and  penalties ;  the  first  inflicting  capital,  and  the  other  less  punish- 
ment. These  acts  were  legislative  judgments,  and  an  exercise  of 
judicial  power.  Sometimes  they  respected  the  crime,  by  declaring 
acts  to  be  treason  which  were  not  treason  when  committed;  ^  at  other 
times  they  violated  the  rules  of  evidence,  to  supply  a  deficiency  of 
legal  proof,  by  admitting  one  witness,  when  the  existing  law  required 
two;  by  receiving  evidence  without  oath;  or  the  oath  of  the  wife 
against  the  husband ;  or  other  testimony  which  the  courts  of  justice 
would  not  admit ;  ^  at  other  times  they  inflicted  punishments  where 
the  party  was  not  by  law  liable  to  any  punishment ;  ^  and  in  other 
cases  they  inflicted  greater  punishment  than  the  law  annexed  to  the 
offence.*  The  ground  for  the  exercise  of  such  legislative  power  was 
this,  that  the  safety  of  the  kingdom  depended  on  the  death,  or  other 
punishment,  of  the  offender  ;  as  if  traitors,  when  discovered,  could  be 
so  formidable,  or  the  government  so  insecure.  With  very  few  excep- 
tions, the  advocates  of  such  laws  were  stimulated  by  ambition,  or 
personal  resentment  and  vindictive  malice.  To  prevent  such,  and 
similar  acts  of  violence  and  injustice,  I  believe  the  Federal  and  State 
legislatures  were  prohibited  from  passing  any  bill  of  attainder,  or 
any  ex  post  facto  law. 

The  Constitution  of  the  United  States,  art.  1,  s.  9,  prohibits  the 
Legislature  of  the  United  States  from  passing  any  ex  post  facto  law ; 
and  in  sec.  10  lays  several  restrictions  on  the  authority  of  the  legisla- 
tures of  the  several  States  ;  and  among  them,  "  that  no  State  shall 
pass  any  ex  post  facto  law." 

It  may  be  remembered  that  the  legislatures  of  several  of  the  States, 
to  wit,  Massachusetts,  Pennsylvania,  Delaware,  Maryland,  and  North 
and  South  Carolina,  are  expressly  prohibited,  by  their  State  constitu- 
tions, from  passing  any  expost facto  law. 

I  shall  endeavor  to  show  what  law  is  to  be  considered  an  ex  post 
facto  law,  within  the  words  and  meaning  of  the  prohibition  in  the 
Federal  Constitution,     The    prohibition,  "  that  no  State  shall  pass 

1  The  case  of  the  Karl  of  Strafford,  in  1640. 
"^  The  case  of  Sir  John  Fenwick,  in  1696. 

3  The  banishment  of  Lord  Clarendon,  1667,  19  Car.  II.  c.  10;  and  of  Bishop  Atte» 
bury,  in  1723,  9  Geo.  I.  c.  17. 

*  The  Conventry  Act,  in  1670,  22  &  23  Car.  II.  c.  1. 


982  PROTECTION   TO    PERSONS    ACCUSED    OF   CRIME.       [CHAP.  XV. 

any  ex  post  facto  law,"  necessarily  requires  some  explanation  ;  for 
naked  and  without  explanation  it  is  unintelligible,  and  means  nothing. 
Literally,  it  is  only  that  a  law  shall  not  be  passed  concerning,  and 
after  the  fact,  or  thing  done,  or  action  committed.  I  would  ask, 
what  fact ;  of  what  nature  or  kind ;  and  by  whom  done  ?  That 
Charles  I.,  king  of  England,  was  beheaded ;  that  Oliver  Cromwell 
was  protector  of  England ;  that  Louis  XVI.,  late  king  of  France,  was 
guillotined,  —  all  facts  that  have  happened,  but  it  would  be  non- 
sense to  suppose  that  the  States  were  prohibited  from  making  any 
law  after  either  of  these  events,  and  with  reference  thereto.  The 
prohibition  in  the  letter  is  not  to  pass  any  law  concerning  and  after 
the  fact,  but  the  plain  and  obvious  meaning  and  intention  of  the  pro- 
hibition is  this,  that  the  legislatures  of  the  several  States  shall  not 
pass  laws  after  a  fact  done  by  a  subject,  or  citizen,  which  shall  have 
relation  to  such  fact,  and  shall  punish  him  for  having  done  it.  The 
prohibition,  considered  in  this  light,  is  an  additional  bulwark  in  favor 
of  the  personal  security  of  the  subject,  to  protect  his  person  from 
punishment  by  legislative  acts,  having  a  retrospective  operation.  I 
do  not  think  it  was  inserted  to  secure  the  citizen  in  his  private 
rights,  of  either  property  or  contracts.  The  prohibitions  not  to  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts,  and 
not  to  pass  any  law  impairing  the  obligation  of  contracts,  were  in- 
serted to  secure  private  rights ;  but  the  restriction  not  to  pass  any  ex 
jjost  facto  law,  was  to  secure  the  person  of  the  subject  from  injury  or 
punishment,  in  consequence  of  such  law.  If  the  prohibition  against 
making  expostfacto  laws  was  intended  to  secure  personal  rights  from 
being  affected  or  injured  by  such  laws,  and  the  prohibition  is  suf- 
ficiently extensive  for  that  object,  the  other  restraints  I  have  enumer- 
ated were  unnecessary,  and  therefore  improper,  for  both  of  them  are 
retrospective. 

I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1st.  Every  law  that  makes 
an  action  done  before  the  passing  of  the  law,  and  which  was  inno- 
cent when  done,  criminal;  and  punishes  such  action.  2d.  Every 
law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was,  when 
committed.  3d.  Every  law  that  changes  the  punishment,  and  inflicts 
a  greater  punishment  than  the  law  annexed  to  the  crime,  when  com- 
mitted. 4th.  Every  law  that  alters  the  legal  rules  of  evidence,  and 
receives  less  or  different  testimony  than  the  law  required  at  the  time 
of  the  commission  of  the  offence,  in  order  to  convict  the  offender. 
All  these  and  similar  laws  are  manifestly  unjust  and  oppressive.  In 
my  opinion,  the  true  distinction  is  between  ex  post  facto  laws  and 
retrosi)ective  laws.  Every  ex  post  facto  law  must  necessarily  be 
retrospective,  but  every  retrospective  law  is  not  an  ex  post  facto  law: 
the  former  only  are  prohibited.  Every  law  that  takes  away  or  im- 
pairs rights  vested,  agreeably  to  existing  laws,  is  retrospective,  and 
is  generally  unjust,  and  may  be  oppressive  ;  and  it  is  a  good  general 


CHAP.  XV.]  KRING   V.   MISSOURI.  983 

rule  that  a  law  should  have  no  retrospect;  but  there  are  cases  in 
syhich  laws  may  justly,  and  for  the  benefit  of  the  community,  and 
also  of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment j  as  statutes  of  oblivion,  or  of  pardon.  They  are  certainly 
retrospective,  and  literally  both  concerning  and  after  the  facts  com- 
mitted. But  I  do  not  consider  any  law  ex,  post  facto^  within  the  pro- 
hibition, that  mollifies  the  rigor  of  the  criminal  law ;  but  only  those 
that  create,  or  aggravate,  the  crime,  or  increase  the  punishment,  or 
change  the  rules  of  evidence,  for  the  purpose  of  conviction.  Every 
law  that  is  to  have  an  operation  before  the  making  thereof,  as  to  com- 
mence at  an  antecedent  time,  or  to  save  time  from  the  statute  of  lim- 
itations, or  to  excuse  acts  which  were  unlawful,  and  before  committed, 
and  the  like,  is  retrospective.  But  such  laws  may  be  jDroper  or  neces- 
sary, as  the  case  may  be.  There  is  a  great  and  apparent  difference 
between  making  an  unlawful  act  lawful,  and  the  making  an  innocent 
action  criminal,  and  punishing  it  as  a  crime.  The  expressions  ^' ex 
post  facto  laws,"  are  technical,  they  had  been  in  use  long  before  the 
Revolution,  and  had  acquired  an  appropriate  meaning,  by  legislators, 
lawyers,  and  authors.  The  celebrated  and  judicious  Sir  William 
Blackstone,  in  his  Commentaries,  considers  an  ex  2)ost  facto  law  pre- 
cisely in  the  same  light  I  have  done.  His  opinion  is  confirmed  by 
his  successor,  ]\[r.  Wooddeson,  and  by  the  author  of  the  Federalist, 
whom  I  esteem  superior  to  both,  for  his  extensive  and  accurate 
knowledge  of  the  true  principles  of  government. 

[The  other  judges  of  the  court  delivered  opinions  and  the  decree 
of  the  Supreme  Court  of  Errors  of  Connecticut  was  affirmed,  all 
concurring.]  ^ 

1  In  Krixg  v.  Missouri,  107  U.  S.  221  (1882),  it  appeared  that  plaintiff  in  error 
had  been  put  on  trial  under  an  indictment  charging  him  with  murder  in  the  first 
degree,  but  had  pleaded  guilty  of  murder  in  the  second  degree,  and  had  thereupon 
been  sentenced  for  that  offence.  Subsequently,  on  appeal,  he  secured  a  reversal  of 
this  sentence,  and  the  case  was  remanded  to  the  lower  court  for  further  proceedings. 
Tliereupon  he  refused  to  withdraw  his  plea  of  murder  in  the  second  degree,  and 
refused  to  plead  not  guilty  to  the  indictment  for  murder  in  the  first  degree ;  but  tlie 
court  set  aside  his  plea  of  guilty,  interposed  for  him  a  plea  of  not  guilty,  and  he  was 
tried  and  convicted  for  murder  in  the  first  degree.  It  appeared  that  by  the  law  recog- 
nized in  Missouri  at  the  time  the  crime  was  committed,  a  conviction  for  the  second 
degree  under  a  cliarge  of  the  first  degree  of  tlie  offence,  amounted  to  an  acquittal  of 
so  much  of  the  crime  charged  as  would  constitute  murder  in  the  first  degree,  but  sub- 
sequently, and  before  the  last  trial,  it  had  been  provided  by  an  amendment  to  the 
constitution  of  the  State  that  after  the  reversal  of  a  conviction  for  a  lower  degree  de- 
fendant could  be  again  put  on  trial  for  the  original  charge.  Kring  insisted  that,  as  to 
the  offence  charged  as  committed  l)efore  this  change  in  tlie  constitution,  such  change 
wda  ex  post /nrto.  Mr.  Jistice  Millf.i;,  delivering  the  opinion  of  the  court,  quoted 
from  the  opinion  in  Calder  v.  Bull,  which  is  given  above,  and  continued  as  follows:  — 

"Rut  it  is  not  to  be  supposed  that  the  oj)inion  in  that  case  undertook  to  define, 
by  way  of  exclusion,  all  the  cases  to  which  the  constitutional  provision  would  be 
applicable. 

"  Accordingly,  in  a  subsequent  case  tried  before  Mr.  Justice  "Washington,  he  said, 
in  his  charge  to  tlie  jury,  tliat  'an  ex  poxf  f'artn  Inw  is  one  whicli.  in  its  operation, 
makes  that  criminal  which  was  not  so  at  the  time  the  action  was  performed;  or  which 


984  PROTECTION   TO    PERSONS   ACCUSED   OF   CRIME.       [CHAP.  XV. 

increases  the  punishment,  or,  in  short,  which,  in  relation  to  the  offence  or  its  consequences, 
alters  the  situation  of  a  part//  to  his  disadvanta(je.^     United  States  v.  Hall,  2  Wash.  366. 

"  He  adds,  by  way  of  application  to  that  case,  which  was  for  a  violation  of  the 
embargo  laws :  '  If  the  enforcing  law  applies  to  this  case,  there  can  be  no  doubt  that, 
so  far  as  it  takes  awaj  or  impairs  the  defence  wliich  the  law  had  provided  the  defend- 
ant at  the  time  when  the  condition  of  this  bond  became  forfeited,  it  is  ex  post  facto 
and  inoperative.' 

"  This  case  was  carried  to  the  Supreme  Court  and  the  judgment  affirmed. 
6  Oranch,  171. 

"  The  new  constitution  of  Missouri  does  take  away  what,  by  the  law  of  the  State 
when  the  crime  was  committed,  was  a  good  defence  to  the  charge  of  murder  in  the 
first  degree. 

"  In  the  subsequent  cases  of  Cummings  v.  The  State  of  Missouri  and  fJx  parte 
Garland,  4  Wall.  277,  333,  this  court  held  that  a  law  which  excluded  a  minister  of  the 
gospel  from  the  exercise  of  his  clerical  function,  and  a  lawyer  from  practice  in  the 
courts,  unless  each  would  take  an  oath  that  they  had  not  engaged  in  or  encouraged 
armed  hostilities  against  the  government  of  tlie  United  States,  was  an  ex  post  facto 
law,  because  it  punished,  in  a  manner  not  before  punished  by  law,  offences  committed 
before  its  passage,  and  because  it  instituted  a  new  rule  of  evidence  in  aid  of  convic- 
tion. This  court  was  divided  in  that  case,  the  minority  being  of  opinion  that  the  act 
in  question  was  not  a  crimes  act,  and  inflicted  no  punishment,  in  the  judicial  sense,  for 
any  past  crime,  but  they  did  not  controvert  the  proposition  that  if  the  act  had  that 
effect  it  was  an  er  post  facto  law. 

"  In  these  cases  we  have  illustrations  of  the  liberal  construction  which  this  court, 
and  Mr.  Justice  Washington  in  the  Circuit  Court,  gave  to  the  words  ex  post  facto  law, 
—  a  construction  in  manifest  accord  with  the  purpose  of  the  constitutional  convention 
to  protect  the  individual  rights  of  life  and  liberty  against  hostile  retrospective 
legislation. 

"  Nearly  all  the  States  of  the  Union  have  similar  provisions  in  their  constitutions, 
and  whether  they  have  or  not,  they  all  recognize  the  obligatory  force  of  this  clause  of 
the  Federal  Constitution  on  their  legislation." 

The  opinion  of  the  Supreme  Court  of  Missouri,  from  which  the  case  was  brought  to 
this  court  by  writ  of  error,  is  considered  at  length,  and  to  the  position  taken  in  that 
court  th<it  the  change  made  in  the  constitution  of  Missouri  related  to  procedure  only, 
and  therefore  did  not  constitute  an  ex  post  facto  law  within  the  prohibition  of  the  Fed- 
eral Constitution,  it  was  decided  that  a  change  in  procedure  might  alter  the  situation 
of  the  party  to  his  disadvantage,  and  might  therefore  be  an  ex  post  facto  law,  and 
unconstitutional.  The  decision  of  the  Supreme  Court  of  Missouri  was  therefore 
reversed. 

Mr.  JrsTiCE  Mathews  delivered  a  dissenting  opinion,  in  which  Mr.  Chief  Jus- 
tice Waite,  Mr.  Justice  Bradley,  and  Mr.  Justice  Gray  concurred. 

In  Thompson  v.  Utah,  170  U.  S.  343  (1898),  which,  on  another  point,  is  given 
supra,  on  p.  831,  Mr.  Justice  Harlan,  delivering  the  opinion  of  the  court,  discus.ses 
tlie  question  as  to  what  is  an  ex  post  ficto  law,  and  uses  the  following  language,  which 
is  not  included  in  the  portion  of  the  opinion  already  given  :  — 

"  It  is  not  necessary  to  review  the  numerous  cases  in  which  the  courts  have  deter- 
mined whether  particular  statutes  come  within  tlie  constitutional  prohibition  of  ex  post 
facto  laws.  It  is  sufficient  now  to  say  that  a  statute  belongs  to  that  class  which  by  its 
necessary  operation  and  '  in  its  relation  to  the  offence,  or  its  consequences,  alters  the 
situation  of  the  accused  to  his  disadvantage.'  United  States  v.  Hall,  2  Wash.  C.  C. 
3r,6;  Kring  v.  Missouri,  107  U.  S.  221,  228;  Medley,  petitioner,  134  U.  S.  160,  171. 
Of  course,  a  statute  is  not  of  that  class  unle.ss  it  materially  impairs  the  right  of  the 
accused  to  have  the  question  of  his  guilt  determined  according  to  the  law  as  it  was 
when  the  offence  was  committed.  And,  therefore,  it  is  well  settled  that  the  accused 
is  not  entitled  of  right  to  be  tried  in  the  exact  mode,  in  all  respects,  tliat  may  be  pre- 
scribed for  tlie  trial  of  criminal  cases  at  the  time  of  tlie  commission  of  the  offence 
charged  against  him.  Cooley  in  his  Treatise  on  Constitutional  Limitations,  c.  9,  6th 
ed.  p.  326,  after  referring  to  some  of  tiie  adjudged  cases  relating  to  ex  post  facto  laws, 


CHAP.  XV.]  MACKIN   V.    UNITED    STATES.  985 

MACKIN  V.   UXITED   STATES. 
117  United  States,  417.     1885. 

[Plaintiff  in  error  was  prosecuted  by  information  in  the  District 
Court  of  the  United  States  for  the  Northern  District  of  Illinois  under 
section  5440  of  the  Revised  Statutes  for  conspiring  to  commit  offences 
against  the  United  States,  defined  by  sections  5403,  5511,  and  5512  of 
the  Revised  Statutes  relating  to  election  of  representatives  in  Con- 
gress. Being  convicted  and  sentenced  to  pay  a  fine  of  $5,000  and  to 
be  imprisoned  for  two  years  in  the  penitentiary  of  the  State  of  Illi- 
nois (which  sentence  was  within  the  penalty  authorized  by  R.  S.  sec. 
5440),  the  defendant  took  the  case  by  writ  of  error  to  the  Circuit 
Court,  where  the  two  judges  were  divided  in  opinion  on  the  ques- 
tion whether  the  crime  charged  against  defendant  was  an  infamous 
crime  for  which  he  could  not  be  prosecuted  except  by  indictment ; 
and  on  certificate  of  division  on  this  question,  the  case  came  to  this 
court.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

In  Ex  parte  Wilson,  114  U.  S.  417,  it  was  adjudged  by  this  court, 
upon  full  consideration,  that  a  crime  punishable  by  imprisonment  for 
a  term  of  years  at  hard  labor  was  an  infamous  crime,  within  the 
meaning  of  the  Fifth  Amendment  of  the  Constitution  of  the  United 
States,  which  declares  that  "No  person  shall  be  held  to  answer  for  a 

says:  'But  so  far  as  mere  modes  of  procedure  are  concerned,  a  party  has  no  more 
right,  in  a  criminal  than  in  a  civil  action,  to  insist  that  his  case  sliall  be  disposed  of 
under  the  law  in  force  when  the  act  to  be  investigated  is  charged  to  have  taken  place. 
Remedies  must  always  be  under  the  control  of  the  legislature,  and  it  would  create 
endless  confusion  in  legal  proceedings  if  every  case  was  to  be  conducted  only  in 
accordance  with  the  rules  of  practice,  and  heard  only  by  the  courts  in  existence  when 
its  facts  arose.  The  legislature  may  abolish  courts  and  create  new  ones,  and  it  may 
prescribe  altogether  different  modes  of  procedure  in  its  discretion,  though  it  cannot 
lawfully,  we  tbini<,  in  so  doing,  dispense  with  any  of  those  substantial  protections  with 
which  the  existing  law  surrounds  the  person  accused  of  crime.'  And  this  view  was 
substantially  approved  by  this  court  in  Kring  i\  Missouri,  al)ove  cited.  So,  in  Hopt  v. 
Utah,  110  U.  S.  574,  .590,  it  was  said  that  no  one  had  a  vested  right  in  mere  modes  of 
procedure,  and  that  it  was  for  the  State,  upon  grounds  of  public  policy,  to  regulate 
procedure  at  its  pleasure.  This  court,  in  Duncan  v.  Mi.s.souri,  152  U.  S.  377,  .382,  s.aid 
that  statutes  regulating  procedure,  if  they  leave  untouched  all  the  substantial  protec- 
tions with  which  existing  law  surrounds  the  per.son  accused  of  crime,  are  not  within 
the  constitutional  inhibition  of  ex  post  facto  laws.  But  it  was  held  in  Hopt  v.  Utah, 
above  cited,  that  a  statute  that  takes  from  the  accused  a  substantial  right  given  to 
him  by  the  law  in  force  at  the  time  to  which  his  guilt  relates  would  be  er  poM  facto 
in  its  nature  and  operation,  and  that  legislation  of  th;it  kind  cannot  be  sustained  sim- 
ply because,  in  a  general  sense,  it  may  be  ,«aid  to  regulate  procedure.  The  difficulty 
is  not  so  much  as  to  the  soundness  of  the  general  rule  that  an  accused  has  no  vested 
right  in  particular  modes  of  procedure,  as  in  determining  whether  particular  statutes 
by  their  operation  take  from  an  accused  any  right  tliat  was  reganied,  at  the  time  of 
the  adoption  of  the  Constitution,  as  vital  for  the  protection  of  life  and  liltertv,  and 
which  he  enjoyed  at  the  time  of  the  commission  of  the  offence  charged  against  him." 


986  PROTECTION   TO    PERSONS   ACCUSED   OF   CRIME.       [CHAP.  XV. 

capital  or  otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury  ;  "  and  therefore  could  not  be  prosecuted  by 
information  in  any  court  of  the  United  States. 

The  reasons  for  that  judgment,  without  undertaking  to  recapitulate 
them  in  detail,  or  to  restate  the  authorities  cited  in  their  support, 
may  be  summed  up  as  follows  :  The  Fifth  Amendment  had  in  view 
the  rule  of  the  common  law,  governing  the  mode  of  prosecuting  those 
accused  of  crime,  by  which  an  information  by  the  Attorney  General, 
without  the  intervention  of  a  grand  jury,  was  not  allowed  for  a  capital 
crime,  nor  for  any  felony ;  rather  than  the  rule  of  evidence,  by  which 
those  convicted  of  crimes  of  a  certain  character  were  disqualified  to 
testify  as  witnesses.  In  other  words,  of  the  two  kinds  of  infamy 
known  to  the  law  of  England  before  the  Declaration  of  Independence, 
the  Constitutional  amendment  looked  to  the  one  founded  on  the 
opinions  of  the  people  respecting  the  mode  of  punishment,  ratlier 
than  to  that  founded  on  the  construction  of  law  respecting  the  future 
credibility  of  the  delinquent.  The  leading  word  "  capital  "  describing 
the  crime  by  its  punishment  only,  the  associated  words  "  or  otherwise 
infamous  crime,"  must,  by  an  elementary  rule  of  construction,  be  held 
to  include  any  crime  subject  to  an  infamous  punishment,  even  if  they 
should  be  held  to  include  also  crimes  infamous  in  their  nature,  inde- 
pendently of  the  punishment  affixed  to  them.  Having  regard  to  the 
object  and  terms  of  the  amendment,  as  well  as  to  the  history  of  its 
proposal  and  adoption,  and  to  the  early  understanding  and  practice 
under  it,  no  person  can  be  held  to  answer,  without  presentment  or 
indictment  by  a  grand  jury,  for  any  crime  for  which  an  infamous 
punishment  may  lawfully  be  imposed  by  the  court.  The  test  is 
whether  the  crime  is  one  for  which  the  statutes  authorize  the  court 
to  award  an  infamous  punishment,  not  whether  the  punishment  ulti- 
mately awarded  is  an  infamous  one ;  when  the  accused  is  in  danger 
of  being  subjected  to  an  infamous  punishment  if  convicted,  he  has  the 
right  to  insist  that  he  shall  not  be  put  upon  his  trial,  except  on  the 
accusation  of  a  grand  jury.  The  Constitution  protecting  every  one 
from  being  prosecuted  in  a  court  of  the  United  States,  without  the 
intervention  of  a  grand  jury,  for  any  crime  which  is  subject  by  law 
to  an  infamous  punishment,  no  declaration  of  Congress  is  needed  to 
secure,  or  competent  to  defeat,  the  constitutional  safeguard.  What 
punishments  shall  be  considered  as  infamous  may  be  affected  by  the 
changes  of  public  opinion  from  one  age  to  another  ;  and  for  more 
than  a  century,  imprisonment  at  hard  labor  in  the  State  prison  or 
penitentiary  has  been  considered  an  infamous  punishment  in  England 
and  America. 

How  far  a  convict  sentenced  by  a  court  of  the  United  States  to 
imprisonment  in  a  State  prison  or  penitentiary,  and  not  in  terms 
sentenced  to  hard  labor,  can  be  put  to  work,  either  as  part  of  his 
punishment,  or  as  part  of  the  discipline  and  treatment  of  the  prison, 


CHAP.  XV.],  HALLINGER   V.    DAVIS.  987 

was  much  discussed  at  the  bar,  but  we  have  not  found  it  necessary 
to  dwell  upon  it,  because  we  cannot  doubt  that  at  the  present  day 
imprisonment  in  a  State  prison  or  penitentiary,  with  or  without  hard 
labor,  is  an  infamous  punishment.  It  is  not  only  so  considered  in 
the  general  opinion  of  the  people,  but  it  has  been  recognized  as 
such  in  the  legislation  of  the  States  and  Territories,  as  well  as 
of  Congress. 

But  the  most  conclusive  evidence  of  the  opinion  of  Congress  upon 
this  subject  is  to  be  found  in  the  act  conferring  on  the  Police  Court 
of  the  District  of  Columbia  "original  and  exclusive  jurisdiction  of  all 
offences  against  the  United  States,  committed  in  the  District,  not 
deemed  capital  or  otherwise  infamous  crimes,  that  is  to  say,  of  all 
simple  assaults  and  batteries,  and  all  other  misdemeanors  not  punish- 
able by  imprisonment  in  the  penitentiary."  Act  of  June  17,  1870, 
ch.  133,  §  1,  IG  Stat.  153;  Rev.  Stat.  D.  C.  §  1049.  "Infamous 
crimes  "  are  thus  in  the  most  explicit  words  defined  to  be  those 
"punishable  by  imprisonment  in  the  penitentiary," 

The  result  is,  that  all  the  crimes  charged  against  the  defendants  in 
this  information  are  infamous  crimes,  within  the  meaning  of  the  Fifth 
Amendment  of  the  Constitution,  and  that  the  defendants  cannot  be 
held  to  answer  in  the  courts  of  the  United  States  for  any  of  those 
crimes,  otherwise  than  on  a  presentment  or  indictment  of  a  grand 
jury  ;  and  therefore  the  first  question  certified  must  be  answered 
in  the  affirmative,  and  the  second  question  in  the  negative,  and  the 
other  questions  certified  become  immaterial. 

Ordered  accordinrjly. 


HALLINGER  v.   DAVIS. 

146  United  States,  314.     1892. 

[Hallinger  made  application  to  the  Circuit  Court  of  the  United 
States  for  the  District  of  Xew  Jersey  for  a  writ  of  habe<t.s  corpus  to 
relieve  him  from  imprisonment  under  sentence  in  a  State  court  for 
murder.  In  the  State  court  he  had  plead  guilty,  and  in  accordance 
with  the  statutes  of  the  State  the  court  without  a  jury  had  by  exami- 
nation of  witnesses  determined  the  degree  of  the  crime  and  adjudged 
him  guilty  of  murder  in  the  first  degree,  and  condemned  him  to  be 
hanged.] 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

It  is  contended  on  behalf  of  the  appellant  that  the  juflgment  and 
sentence  of  the  Court  of  Oyer  and  Terminer  of  Hudson  County,  Xew 
Jersey,  whereby  he  is  deprived  of  his  liberty  and  condemned  to  be 


988  PROTECTION   TO    PERSONS    ACCUSED   OF   CRIME.    ,[CHAP.  XV. 

hanged,  are  void,  because  the  Act  of  Criminal  Procedure  of  the  State 
of  New  Jersey,  in  pursuance  of  the  provisions  of  which  such  judg- 
ment and  sentence  were  rendered,  is  repugnant  to  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States,  which  is  in 
these  words  :  "  Nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law."  Such  repugnancy  is  sup- 
posed to  be  found  in  the  proposition  that  a  verdict  by  a  jury  is  an 
essential  part  in  prosecutions  for  felonies,  without  which  the  accused 
cannot  be  said  to  have  been  condemned  by  *'due  process  of  law;" 
and  that  any  act  of  a  State  legislature  providing  for  the  trial  of 
felonies  otherwise  than  by  a  common  law  jury,  composed  of  twelve 
men,  would  be  unconstitutional  and  void. 

Upon  the  question  of  the  right  of  one  charged  with  crime  to  waive 
a  trial  by  jury,  and  elect  to  be  tried  by  the  court,  when  there  is  a 
positive  legislative  enactment,  giving  the  right  so  to  do,  and  confer- 
ring power  on  the  court  to  try  the  accused  in  such  a  case,  there  are 
numerous  decisions  by  State  courts,  upholding  the  validity  of  such 
proceeding.  Dailey  v.  State,  4  Ohio  St.  57;  Dillingham  v.  State, 
5  Ohio  St.  280 ;  People  v.  Noll,  20  Cal.  164 ;  State  v.  Worden,  46 
Conn.  349;  State  v.  Albee,  61  N.  H.  423,  428. 

The  decisions  already  cited  suflficiently  show  that  the  State  courts 
hold  that  trials  had  under  the  provisions  of  statutes  authorizing  per- 
sons accused  of  felonies  to  waive  a  jury  trial,  and  to  submit  the  degree 
of  their  guilt  to  the  determination  of  the  courts,  are  "  due  process  of 
law."  While  these  decisions  are  not  conclusive  upon  this  court,  yet 
they  are  entitled  to  our  respectful  consideration. 

[Several  cases  relating  to  the  question  whether  due  process  of  law 
necessitates  a  trial  by  jury  are  considered,  among  them.  Ex  parte  Wall, 
107  U.  S.  265,  supra,  p.  903,  and  Hurtado  v.  California,  110  U.  S.  516, 
supra.,  p.  905.] 

Applying  the  principles  of  these  decisions  to  the  case  before  us,  we 
are  readily  brought  to  the  conclusion  that  the  appellant,  in  voluntarily 
availing  himself  of  the  provisions  of  the  statute  and  electing  to  plead 
guilty,  was  deprived  of  no  right  or  privilege  within  the  protection  of 
the  Fourteenth  Amendment.  The  trial  seems  to  have  been  conducted 
in  strict  accordance  with  the  forms  prescribed  by  the  constitution  and 
laws  of  the  State,  and  with  special  regard  to  the  rights  of  the  accused 
thereunder.  The  court  refrained  from  at  once  accepting  his  plea  of 
guilty,  assigned  him  counsel,  and  twice  adjourned,  for  a  period  of 
several  days,  in  order  that  he  might  be  fully  advised  of  the  truth, 
force,  and  effect  of  his  plea  of  guilty.  Whatever  might  be  thought 
of  the  wisdom  in  departing,  in  capital  cases,  from  time-honored  pro- 
cedure, there  is  certainly  nothing  in  the  present  record  to  enable  this 
court  to  perceive  that  the  rights  of  the  appellant,  so  far  as  the  laws 
and  Constitution  of  the  United  States  are  concerned,  have  been  in 
anywise  infringed. 


CHAP.  XV.]  BOYD   V.   UNITED   STATES.  989 

Other  propositions  are  discussed  in  the  brief  of  the  appellant's 
counsel,  but  they  are  either  without  legal  foundation  or  suggest 
questions  that  are  not  subject  to  our  revision. 

The  judgment  of  the  Circuit  Court  is  Affirmed. 

Mr.  Justice  Harlan  assents  to  the  conclusion,  but  does  not  agree 
in  all  the  reasoning  of  the  opinion.^ 


BOYD  V.  UNITED  STATES. 

116  Uuited  States,  616.     1886. 

[See  siqira,  p.  885.] 

1  In  Harris  v.  People,  128  111.  585  (1889),  the  question  was  raised  whether  a  con- 
viction in  a  criminal  prosecution  in  wiiich  defendant  had  waived  a  jury  trial,  and  tiie 
trial  was  by  the  court  without  a  jury,  was  valid.  Mu.  Justice  Bailey,  delivering 
the  opinion  of  the  court,  cites  the  provisions  of  the  constitution  and  statutes  of  the 
State  expressly  guaranteeing  and  preserving  the  right  of  jury  trial  in  criminal  cases, 
and  then  proceeds  as  follows :  — 

"A- jury  of  twelve  men  being  the  only  legally  constituted  tribunal  for  the  trial  of 
an  indictment  for  a  felony,  it  necessarily  follows  that  the  court  or  judge  is  not  such 
tribunal,  and  that  in  the  absence  of  a  jury  he  has  by  law  no  jurisdiction.  There  is 
no  law  which  authorizes  him  to  sit  as  a  substitute  for  a  jury  and  perform  their  func- 
tions in  such  cases,  and  if  he  attempts  to  do  so,  his  act  must  be  regarded  as  nugatory. 
Especially  must  this  be  true  where  the  jury  are  not  only  the  judges  of  the  facts  as  at 
common  law,  but  are  also  the  judges  of  the  law  as  provided  by  our  statute. 

"  But  it  is  said  that  the  right  to  a  trial  by  a  jury  is  a  right  which  the  defendant 
may  waive.  This  may  be  admitted,  since  every  plea  of  guilty  is,  in  legal  effect,  a 
waiver  of  the  right  to  a  trial  by  the  legally  constituted  tribunal.  But  while  a  defend- 
ant may  waive  his  right  to  a  jury  trial,  he  cannot,  by  such  waiver,  confer  jurisdiction 
to  try  him  upon  a  tribunal  which  has  no  such  jurisdiction  by  law.  Jurisdiction  of  the 
subject-matter  must  .always  be  derived  from  the  law  and  not  from  the  consent  of  the 
parties,  but  in  the  present  case  jurisdiction  is  sought  to  be  based,  not  upon  any  law  con- 
ferring it,  but  upon  the  defendant's  consent  and  .agreement  to  waive  a  jury  and  sub- 
mit her  cause  to  the  court  for  trial.  '  It  is  a  maxim  in  the  law  that  consent  can  never 
confer  jurisdiction  ;  by  which  is  meant  that  the  consent  of  the  parties  cannot  empower 
a  court  to  act  upon  subjects  which  are  not  submitted  to  its  determination  and  judg- 
ment by  the  law.  The  law  creates  courts,  and  upon  consider.atious  of  general  pu!)lic 
policy  defines  and  limits  their  jurisdiction ;  and  this  can  neither  be  enlarged  nor  re- 
stricted by  the  act  of  the  parties.'     Cooley's  Const.  Lim.  398. 

"We  are  of  the  opinion,  then,  both  upon  princij)le  and  authority,  that  the  criminal 
court  had  no  legal  power  to  try  the  defendant  without  a  jury,  notwithstanding  her 
consent  and  agreement  in  that  behalf,  and  tliat  the  trial  and  conviction  are  therefore 
erroneous.    The  judgment  will  be  reversed  and  the  cause  remanded." 


990      PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME.   [CHAP.  X7. 

BROWN  V.  WALKER. 

161  United  States,  591.     1896. 

[Petitionf.r  Brown  applied  to  the  Circuit  Court  of  the  United 
States  to  be  relieved  from  imprisonment  under  commitment  for  con- 
tempt in  refusing  to  answer  as  a  witness  before  a  grand  jury  of  the 
i  District  Court  of  the  United  States  for  the  Western  District  of  Penu- 
■  sylvania  in  relation  to  a  charge  under  investigation  by  that  body  against 
certain  officers  and  agents  of  a  railway  company,  of  which  Brown 
was  also  an  officer,  for  alleged  violation  of  the  Interstate  Commerce 
Act.  His  petition  was  refused  and  he  was  remanded  to  custody  (70 
Fed.  Rep.  46).     He  thereupon  appealed  to  tliis  court.] 

Mr.  Justice  Brown,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

This  case  involves  an  alleged  incompatibility  between  that  clause 
of  the  Fifth  Amendment  to  the  Constitution,  which  declares  that  no 
person  "  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself,"  and  the  act  of  Congress  of  February  11,  1893, 
c.  83,  27  Stat.  443,  which  enacts  that  "  no  person  shall  be  excused 
from  attending  and  testifying  or  from  producing  books,  papers, 
tariffs,  contracts,  agreements,  and  documents  before  the  Interstate 
Commerce  Commission  or  in  obedience  to  the  subpoena  of  the  com- 
mission, ...  on  the  ground  or  for  the  reason  that  the  testimony 
or  evidence,  documentary  or  otherwise,  required  of  him,  may  tend  to 
criminate  him  or  subject  him  to  a  penalty  or  forfeiture.  But  no 
person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for  or  on  account  of  any  transaction,  matter,  or  thing  concerning 
which  he  may  testify,  or  produce  evidence,  documentary  or  other- 
wise, before  said  commission,  or  in  obedience  to  its  subpoena  or  the 
subpoena  of  either  of  them,  or  in  any  such  case  or  proceeding." 

The  act  is  supposed  to  have  been  passed  in  view  of  the  opinion  of 
this  court  in  Counselman  v.  Hitchcock,  142  U.  S.  547,  to  the  effect 
that  section  860  of  the  Revised  Statutes,  providing  that  no  evidence 
given  by  a  witness  shall  be  used  against  him,  his  property  or  estate, 
in  any  manner,  in  any  court  of  the  United  States,  in  any  criminal 
proceeding,  did  not  afford  that  complete  protection  to  the  witness 
which  the  amendment  was  intended  to  guarantee.  The  gist  of  that 
decision  is  contained  in  the  following  extracts  from  the  opinion 
of  Mr.  Justice  Blatchford,  referring  to  section  860:  "It  could  not, 
and  would  not,  prevent  the  use  of  his  testimony  to  search  out  other 
testimony  to  be  used  in  evidence  against  him  or  his  property,  in 
a  criminal  proceeding  in  such  court.  It  could  not  prevent  the 
obtaining  and  the  use  of  witnesses  and  evidence  which  should  be 
attributable  directly  to  the  testimony  he  might  give  under  com- 
pulsion, and  on  which  he  might  be  convicted,  when  otherwise,  and 


i 


CHAP.  XV.]  BROWN   V.   WALKER.  991 

if  he  had  refused  to  answer,  he  could  not  possibly  have  been  con- 
victed." And  again :  "  We  are  clearly  of  opinion  that  no  statute 
which  leaves  the  party  or  witness  subject  to  prosecution,  after 
he  answers  the  criminating  question  put  to  him,  can  have  the 
effect  of  supplanting  the  privilege  conferred  by  the  Constitution 
of  the  United  States.  Section  860  of  the  Eevised  Statutes  does  not 
supply  a  complete  protection  from  all  the  perils  against  which  the 
constitutional  prohibition  was  designed  to  guard,  and  is  not  a  full 
substitute  for  that  prohibition.  In  view  of  the  constitutional  provi- 
sion, a  statutory  enactment,  to  be  valid,  must  afford  absolute  immu- 
nity against  future  prosecutions  for  the  offence  to  which  the  question 
relates." 

The  inference  from  this  language  is  that,  if  the  statute  does  afford 
such  immunity  against  future  prosecution,  the  witness  will  be  com- 
pellable to  testify.  .  .  .  To  meet  this  construction  of  the  constitu- 
tional provision,  the  act  in  question  was  passed,  exempting  the 
witness  from  any  prosecution  on  account  of  any  transaction  to  which 
he  may  testify.  The  case  before  us  is  whether  this  sufticiently  satis- 
fies the  constitutional  guaranty  of  protection. 

The  clause  of  the  Constitution  in  question  is  obviously  suscejitible 
of  two  interpretations.  If  it  be  construed  literally,  as  authorizing 
the  witness  to  refuse  to  disclose  any  fact  which  might  tend  to  incrim- 
inate, disgrace,  or  expose  him  to  unfavorable  comments,  then  as  he 
must  necessarily  to  a  large  extent  determine  upon  his  own  conscience 
and  responsibility  whether  his  answer  to  the  proposed  question  will 
have  that  tendency  (1  Burr's  Trial,  244 ;  Fisher  v.  Ronalds,  12  C.  B. 
762;  Reynell  v.  Sprye,  1  De  Gex,  ^NlcN.  &  G.  656;  Adams  v.  Lloyd, 

3  H.  &  N.  351;  Merluzzi  v.  Gleeson,  59  Md.   214;  Bunn  v.  Bunn, 

4  De  Gex,  J.  &  S.  316 ;  Ex  pa7-te  Reynolds,  20  Ch.  Div.  294 ;  Ux 
parte  Schofield,  6  Ch.  Div.  230),  the  practical  result  would  be,  that 
no  one  could  be  compelled  to  testify  to  a  material  fact  in  a  criminal 
case,  unless  he  chose  to  do  so,  or  unless  it  was  entirely  clear  that  the 
privilege  was  not  set  up  in  good  faith.  If,  upon  the  other  hand,  the 
object  of  the  provision  be  to  secure  the  witness  against  a  criminal 
prosecution,  which  might  be  aided  directly  or  indirectly  by  his  dis- 
closure then,  if  no  such  prosecution  be  possible,  —  in  other  words,  if 
his  testimony  operate  as  a  complete  pardon  for  the  offence  to  which 
it  relates,  —  a  statute  absolutely  securing  to  him  such  immunity  from 
prosecution  would  satisfy  the  demands  of  the  clause  in  question. 

The  maxim  nemo  tenetur  seipsum  accusare  had  its  origin  in  a  pro- 
test against  the  inquisitorial  and  manifestly  unjust  methods  of  inter- 
rogating accused  persons,  which  have  long  obtained  in  the  continental 
system,  and,  until  the  expulsion  of  the  Stuarts  from  the  British 
throne  in  1688,  and  the  erection  of  additional  barriers  for  the  pro- 
tection of  the  people  against  the  exercise  of  arbitrary  power,  was  not 
uncommon  even  in  England.     While  the  admissions  or  confessions 


992  PROTECTION   TO    PERSONS   ACCUSED    OF   CRIME.       [CHAP.  XV. 

of  the  prisoner,  when  voluntarily  and  freely  made,  have  always 
ranked  high  in  tlie  scale  of  incriminating  evidence,  if  an  accused  per- 
son be  asked  to  explain  his  apparent  connection  with  a  crime  under 
investigation,  the  ease  with  which  the  questions  put  to  him  may 
assume  an  inquisitorial  character,  the  temptation  to  press  the  witness 
unduly,  to  browbeat  him  if  he  be  timid  or  reluctant,  to  push  him  into 
a  corner,  and  to  entrap  him  into  fatal  contradictions,  which  is  so 
painfully  evident  in  many  of  the  earlier  State  trials,  notably  in  those 
of  Sir  Nicholas  Throckmorton,  and  Udal,  the  Puritan  minister,  made 
the  system  so  odious  as  to  give  rise  to  a  demand  for  its  total  aboli- 
tion. The  change  in  the  English  criminal  procedure  in  that  particu- 
lar seems  to  be  founded  upon  no  statute  and  no  judicial  opinion,  but 
upon  a  general  and  silent  acquiescence  of  the  courts  in  a  popular 
demand.  But,  however  adopted,  it  has  become  firmly  embedded  in 
English,  as  well  as  in  American  jurisprudence.  So  deeply  did  the 
iniquities  of  the  ancient  system  impress  themselves  upon  the  minds 
of  the  American  colonists  that  the  States,  with  one  accord,  made  a 
denial  of  the  right  to  question  an  accused  person  a  part  of  their 
fundamental  law,  so  that  a  maxim,  which  in  England  was  a  mere 
rule  of  evidence,  became  clothed  in  this  country  with  the  impregna- 
bility of  a  constitutional  enactment. 

Stringent  as  the  general  rule  is,  however,  certain  classes  of  cases 
have  always  been  treated  as  not  falling  within  the  reason  of  the  rule, 
and,  therefore,  constituting  apparent  exceptions.  When  examined, 
these  cases  will  all  be  found  to  be  based  upon  the  idea  that,  if  the 
testimony  sought  cannot  possibly  be  used  as  a  basis  for,  or  in  aid  of, 
a  criminal  prosecution  against  the  witness,  the  rule  ceases  to  apply, 
its  object  being  to  protect  the  witness  himself  and  no  one  else  — 
much  less  that  it  shall  be  made  use  of  as  a  pretext  for  securing 
immunity  to  others. 

[The  exceptions  referred  to  and  sustained  at  some  length  by  cita- 
tions of  authorities  are  the  following :  Waiver  of  the  privilege  by 
disclosing  criminal  connection  with  the  offence,  after  which  a  full 
disclosure  may  be  required  ;  waiver  of  the  privilege  under  the  stat- 
utes allowing  defendant  to  testify,  after  which  he  may  be  subjected 
to  full  cross-examination ;  cases  where  the  prosecution  is  barred  by 
the  statute  of  limitations  ;  cases  where  the  evidence  might  tend  to 
bring  the  witness  into  disrepute  without  fixing  criminal  culpability ; 
cases  where  the  witness  has  been  pardoned  for  the  crime.] 

All  of  the  cases  above  cited  proceed  upon  the  idea  that  the  pro- 
hibition against  his  being  compelled  to  testify  against  himself  pre 
supposes  a  legal  detriment  to  the  witness  arising  from  the  exposure. 
As  the  object  of  the  first  eight  amendments  to  the  Constitution  was 
to  incorporate  into  the  fundamental  law  of  the  land  certain  prin- 
ciples of  natural  justice  which  had  become  permanently  fixed  in  the 
jurisprudence  of  the  mother  country,  the  construction  given  to  those 
principles  by  the  English  courts  is  cogent  evidence  of  what  they 


CHAP.  XV.]  BROWN   V.   WALKER.  993 

were  designed  to  secure  and  of  the  limitations  that  should  be  put 
upon  them.  This  is  but  another  application  of  the  familar  rule  that 
where  one  State  adopts  the  laws  of  another,  it  is  also  presumed  to 
adopt  the  known  and  settled  construction  of  those  laws  by  the  courts 
of  the  State  from  which  they  are  taken.  Cathcart  y.  Robinson, 
5  Pet.  264,  280  i  McDonald  v.  Hovey,  110  U.  S.  619. 

The  act  of  Congress  in  question  securing  to  witnesses  immunity 
from  prosecution  is  virtually  an  act  of  general  amnesty,  and  belongs 
to  a  class  of  legislation  which  is  not  uncommon  either  in  England 
(2  Taylor,  Evidence,  §  1455,  where  a  large  number  of  similar  acts 
are  collated)  or  in  this  country.  Although  the  Constitution  vests  in 
the  President  "power  to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of  impeachment,"  this 
power  has  never  been  held  to  take  from  Congress  the  power  to  pass 
acts  of  general  amnesty,  and  is  ordinarily  exercised  only  in  cases  of 
individuals  after  conviction,  although  as  was  said  by  this  court  in 
Ex  inirte  Garland,  4  Wall.  333,  380,  "  it  extends  to  every  offence 
known  to  the  law,  and  may  be  exercised  at  any  time  after  its  com- 
mission, either  before  legal  proceedings  are  taken,  or  during  their 
pendency,  or  after  conviction  and  judgment." 

It  is  argued  in  this  connection  that,  while  the  witness  is  granted 
immunity  from  prosecution  by  the  Federal  government,  he  does  not 
obtain  such  immunity  against  prosecution  in  the  state  courts.  We 
are  unable  to  appreciate  the  force  of  this  suggestion.  It  is  true  that 
the  Constitution  does  not  operate  upon  a  witness  testifying  in  the 
State  courts,  since  we  have  held  that  the  first  eight  amendments  are 
limitations  only  upon  the  powers  of  Congress  and  the  Federal  courts, 
and  are  not  applicable  to  the  several  States,  except  so  far  as  the 
Fourteenth  Amendment  may  have  made  them  applicable.  Barron  u. 
Baltimore,  7  Pet.  243 ;  Fox  v.  Ohio,  5  How.  410 ;  Withers  v.  Buck- 
ley, 20  flow.  84;  Twitchell  v.  Commonwealth,  7  Wall.  321;  Presser 
V.  Illinois,  116  U.  S.  252. 

There  is  no  such  restriction,  however,  upon  the  applicability  of 
Federal  statutes.  The  sixth  article  of  the  Constitution  declares  that 
"  This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof;  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding." 

The  act  in  question  contains  no  suggestion  that  it  is  to  be  applied 
only  to  the  Federal  courts.  It  declares  broadly  that  "  no  person 
shall  be  excused  from  attending  and  testifying  .  .  .  before  the  Inter- 
state Commerce  Commission  ...  on  the  ground  .  .  .  that  the  testi- 

63 


994  PROTECTION   TO   PERSONS   ACCUSKD   OF  CRIME.       [CHAP.  XV. 

mony  .  .  .  required  of  hiin  may  tend  to  criminate  him,"  etc.  "But  no 
person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for  or  on  account  of  any  transaction,  matter,  or  thing  concerning  which 
he  may  testify,"  etc.  It  is  not  that  he  shall  not  be  prosecuted  for  or 
on  account  of  any  crime  concerning  which  he  may  testify, which  might 
possibly  be  urged  to  apply  only  to  crimes  under  the  Federal  law  and 
not  to  crimes,  such  as  the  passing  of  counterfeit  money,  etc.,  which 
are  also  cognizable  under  State  laws ;  but  the  immunity  extends  to 
any  transaction,  matter,  or  thing  concerning  whicli  he  may  testify, 
which  clearly  indicates  that  the  immunity  is  intended  to  be  general, 
and  to  be  applicable  whenever  and  in  whatever  court  such  prosecu- 
tion may  be  had. 

But  even  granting  that  there  were  still  a  bare  possibility  that  by  his 
disclosui-e  he  might  be  subjected  to  the  criminal  laws  of  some  other 
sovereignty,  that,  as  Chief  Justice  Cockburn  said  in  Queen  v.  Boyes, 
1  B.  &  S.  311,  in  reply  to  the  argument  that  the  witness  was  not 
protected  by  his  pardon  against  an  impeachment  by  the  House  of 
Commons,  is  not  a  real  and  probable  danger,  with  reference  to  the 
ordinary  operations  of  the  law  in  the  ordinary  courts,  but  "  a  danger 
of  an  imaginary  and  unsubstantial  character,  having  reference  to 
some  extraordinary  and  barely  possible  contingency,  so  improbable 
that  no  reasonable  man  would  suffer  it  to  influence  his  conduct." 
Such  dangers  it  was  never  the  object  of  the  provision  to  obviate. 

If,  as  was  justly  observed  in  the  opinion  of  the  court  below,  wit- 
nesses standing  in  Brown's  position  were  at  liberty  to  set  up  an 
immunity  from  testifying,  the  enforcement  of  the  Interstate  Com- 
merce Law  or  other  analogous  acts,  wherein  it  is  for  the  interest 
of  both  parties  to  conceal  their  misdoings,  would  become  impos- 
sible, since  it  is  only  from  the  mouths  of  those  having  knowledge  of 
the  inhibited  contracts  that  the  facts  can  be  ascertained.  While  the 
constitutional  provision  in  question  is  justly  regarded  as  one  of  the 
most  valuable  prerogatives  of  the  citizen,  its  object  is  fully  accom- 
plished by  the  statutory  immunity,  and  we  are,  therefore,  of  opinion 
that  the  witness  was  compellable  to  answer,  and  that  the  judgment 
of  the  court  below  must  be  Affirmed} 

1  Mr.  Justice  Shiras  delivered  a  dissenting  opinion,  in  which  Mr.  Justice  Ghat 
and  Mr.  Justice  White  concurred.  Mr.  Justice  Field  also  delivered  a  dissent- 
ing opinion 


CHAP.  XV.]  MATTOX   V.    UNITED   STATES.  995 

MATTOX  V.  '  UNITED  STATES. 
156  United  States,  237.     1895. 

[This  is  an  appeal  from  a  conviction  in  the  District  Court  of  the 
United  States  for  the  District  of  Kansas  for  murder  alleged  to  have 
been  committed  within  the  Indian  Territory.  Questions  of  juris- 
diction were  raised  and  considered  which  are  not  here  material. 
But  it  appears  that  during  the  trial  a  transcript  of  the  evidence 
given  in  favor  of  the  prosecution  on  a  former  trial  of  the  same  cause 
by  witnesses  since  deceased,  was  admitted  in  evidence  against  the 
objection  that  the  right  of  the  accused  by  the  Sixth  Amendment  to 
be  confronted  with  the  witnesses  against  him  was  violated.  On 
this  point  the  decision  is  as  follows.] 

Mb.  Justice  Bbowx  delivered  the  opinion  of  the  court. 

3.  Upon  the  trial  it  was  shown  by  the  government  that  two  of  its 
witnesses  on  the  former  trial,  namely,  Thomas  Whitman  and 
George  Thornton,  had  since  died,  whereupon  a  transcribed  copy  of 
the  reporter's  stenographic  notes  of  their  testimony  upon  such 
trial,  supported  by  his  testimony  that  it  was  correct,  was  admitted 
to  be  read  in  evidence,  and  constituted  the  strongest  proof  against 
the  accused.  Both  these  witnesses  were  present  and  were  fully 
examined  and  cross-examined  on  the  former  trial.  It  is  claimed, 
however,  that  the  constitutional  provision  that  the  accused  shall 
"be  confronted  with  the  witnesses  against  him"  was  infringed,  by 
permitting  the  testimony  of  witnesses  sworn  upon  the  former  trial 
to  be  read  against  him.  No  question  is  made  that  this  may  not  be 
done  in  a  civil  case,  but  it  is  insisted  that  the  reasons  of  convenience 
and  necessity  which  excuse  a  departure  from  the  ordinary  course  of 
procedure  in  civil  cases  cannot  override  the  constitutional  provision 
in  question. 

[Many  decisions  on  the  question  in  the  courts  of  England  and  of 
the  United  States  are  referred  to,  and  it  is  indicated  that  there  is  a 
conflict  in  the  authorities.] 

The  primary  object  of  the  constitutional  provision  in  question  was 
to  prevent  depositions  or  ex  parte  affidavits,  such  as  were  some- 
times admitted  in  civil  cases,  being  used  against  the  prisoner  in 
lieu  of  a  personal  examination  and  cross-examination  of  the  witness 
in  which  the  accused  has  an  opportunity,  not  only  of  testing  the 
recollection  and  sifting  the  conscience  of  the  witness,  but  of  com- 
pelling him  to  stand  face  to  face  with  the  jury  in  order  that  they 
may  look  at  him,  and  judge  by  his  demeanor  upon  the  stand  and 
the  manner  in  which  he  gives  his  testimony  whether  he  is  worthy 
of  belief.  There  is  doubtless  reason  for  saying  that  the  accused 
should  never  lose  the  benefit  of  any  of  these  safeguards  even  by 


996  PROTECTION   TO    PERSONS   ACCUSED   OF   CRIME.       [CHAP.  XV. 

the  death  of  the  witness;  and  that,  if  notes  of  his  testimony  are 
permitted  to  be  read,  he  is  deprived  of  the  advantage  of  that  per- 
sonal presence  of  the  witness  before  the  jury  which  the  law  has 
designed  for  his  protection.  But  general  rules  of  law  of  this  kind, 
however  beneficent  in  their  operation  and  valuable  to  the  accused, 
must  occasionally  give  way  to  considerations  of  public  policy  and 
the  necessities  of  the  case.  To  say  that  a  criminal,  after  having 
once  been  convicted  by  the  testimony  of  a  certain  witness,  should 
go  scot  free  simply  because  death  has  closed  the  mouth  of  that  wit- 
ness, would  be  carr3'ing  his  constitutional  protection  to  an  unwar- 
rantable extent.  The  law  in  its  wisdom  declares  that  the  rights  of 
the  public  shall  not  be  wholly  sacrificed  in  order  that  an  incidental 
benefit  may  be  preserved  to  the  accused. 

We  are  bound  to  interpret  the  Constitution  in  the  light  of  the  law 
as  it  existed  at  the  time  it  was  adopted,  not  as  reaching  out  for  new 
guaranties  of  the  rights  of  the  citizen,  but  as  securing  to  every 
individual  such  as  he  already  possessed  as  a  British  subject  —  such 
as  his  ancestors  had  inherited  and  defended  since  the  days  of 
Magna  Charta.  Many  of  its  provisions  in  the  nature  of  a  Bill  of 
Rights  are  subject  to  exceptions,  recognized  long  before  the  adop- 
tion of  the  Constitution,  and  not  interfering  at  all  with  its  spirit. 
Such  exceptions  were  obviously  intended  to  be  respected.  A  tech- 
nical adherence  to  the  letter  of  a  constitutional  provision  may 
occasionally  be  carried  farther  than  is  necessary  to  the  just  protec- 
tion of  the  accused,  and  farther  than  the  safety  of  the  public  will 
warrant.  For  instance,  there  could  be  nothing  more  directly  con- 
trary to  the  letter  of  the  provision  in  question  than  the  admission 
of  dying  declarations.  They  are  rarely  made  in  the  presence  of 
the  accused;  they  are  made  without  any  opportunity  for  examina- 
tion or  cross-examination;  nor  is  the  witness  brought  face  to  face 
with  the  jury;  yet  from  time  immemorial  they  have  been  treated  as 
competent  testimony,  and  no  one  would  have  the  hardihood  at  this 
day  to  question  their  admissibility.  They  are  admitted  not  in  con- 
formity with  any  general  rule  regarding  the  admission  of  testimony, 
but  as  an  exception  to  such  rules,  simply  from  the  necessities  of 
the  case,  and  to  prevent  a  manifest  failure  of  justice.  As  was  said 
by  the  Chief  Justice  when  this  case  was  here  upon  the  first  writ  of 
error  (146  U.  S.  140,  152),  the  sense  of  impending  death  is  pre- 
sumed to  remove  all  temptation  to  falsehood,  and  to  enforce  as 
strict  an  adherence  to  the  truth  as  would  the  obligation  of  an  oath. 
If  such  declarations  are  admitted,  because  made  by  a  person  then 
dead,  under  circumstances  which  give  his  statements  the  same 
weight  as  if  made  under  oath,  there  is  equal  if  not  greater  reason 
for  admitting  testimony  of  his  statements  which  were  made  under 
oath. 

The  substance  of  the  constitutional  protection  is  preserved  to  the 
prisoner  in  the  advantage  he  has  once  had  of  seeing  the  witness  face 


CHAP,  XV.]  MATTOX   V.   UNITED   STATES.  997 

to  face,  and  of  subjecting  him  to  the  ordeal  of  a  cross-examination. 
This,  the  law  says,  he  shall  under  no  circumstances  be  deprived  of, 
and  many  of  the  very  cases  which  hold  testimony  such  as  this  to  be 
admissible  also  hold  that  not  the  substance  of  his  testimony  only, 
but  the  very  words  of  the  witness,  shall  be  proven.  We  do  not 
wish  to  be  understood  as  expressing  an  opinion  upon  this  point,  but 
all  the  authorities  hold  that  a  copy  of  the  stenographic  report  of  his 
entire  former  testimony,  supported  by  the  oath  of  the  stenographer 
that  it  is  a  correct  transcript  of  his  notes  and  of  the  testimony  of 
the  deceased  witness,  such  as  was  produced  in  this  case,  is  compe- 
tent evidence  of  what  he  said. 

[Other  questions  are  considered.     The  judgment  is  affirmed.^] 

1  Mr.  Justice  Shiras  delivered  a  dissenting  opinion  in  which  Mr.  Justice  Grat 
and  Mr.  Justice  White  concurred. 


998  PROTECTION    TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 


CHAPTER   XVI. 
PROTECTION   TO   CONTRACTS  AND  PROPERTY. 


Section  I.  —  Laws  impairing  the  Obligation  op 
Contracts. 


WOODRUFF  V.   TRAPNALL. 
10  Howard,  190  ;  18  Curtis,  358.     1850. 

M'Lean,  J.,  delivered  the  opinion  of  the  court. 

This  case  is  before  us  ou  a  writ  of  error  to  the  Supreme  Court  of 
Arkansas. 

An  action  was  brought  by  the  State  of  Arkansas,  in  the  Pulaski 
Circuit  Court,  against  the  plaintiff  in  error,  and  his  sureties,  Chester 
Ashley  and  others,  upon  his  official  bond  as  late  treasurer  of  State, 
for  the  recovery  of  a  certain  sum  of  money  alleged  to  have  been 
received  by  him,  as  treasurer,  between  the  27th  day  of  October,  1836, 
and  the  26th  day  of  December,  1838.  And  a  judgment  was  recov- 
ered against  him  and  his  securities,  on  the  13th  of  June,  1845,  for 
63,359.22  and  costs.  An  execution  having  been  issued  on  the  judg- 
ment, on  the  24th  of  February,  1847,  the  plaintiff  tendered  to  the 
defendant  in  error,  who  prosecuted  the.  suit  as  attorney-general,  the 
full  amount  of  the  judgment,  interest,  and  costs,  in  the  notes  of  the 
Bank  of  the  State  of  Arkansas,  which  were  refused. 

Tlie  above  facts  being  stated  in  a  petition  to  the  Supreme  Court  of 
Arkansas  on  the  25th  of  February,  1847,  an  alternative  majidamus 
was  issued  to  Trapnall,  the  defendant  in  error,  to  receive  the  bank- 
notes in  satisfaction  of  the  judgment,  or  show  cause  why  he  shall 
refuse  to  do  so. 

On  the  return  of  the  mandamus,  the  defendant  admitted  the  judg- 
ment and  tender  of  the  notes  ;  but  alleged  that  he  was  not  authorized 
to  receive  them  in  satisfaction  of  the  judgment,  because  the  twenty- 
eighth  section  of  the  bank  charter,  under  which  alone  the  plaintiff 
could  claim  a  right  so  to  satisfy  the  judgment,  was  repealed  by  an 
act  of  the  legislature,  approved  January  10,  1845. 


SECT.  I.]  WOODRUFF   V.   TRAPNALL.  999 

It  was  agreed  bj  the  parties,  that  the  record  of  the  judgment  should 
be  made  a  part  of  the  proceeding ;  that  the  defendant  was  the  proper 
officer  by  law  to  receive  satisfaction  of  the  judgment ;  that  the  notes 
tendered  were  issued  by  the  bank  prior  to  the  year  1840,  and  that 
down  to  the  year  1845  the  notes  of  the  bank  were  received  and  paid 
out  by  the  State,  in  discharge  of  all  public  dues  ;  that  the  bank  con- 
tinues to  exist  with  all  its  corporate  functions. 

The  court  were  of  opinion  that  the  return  of  the  defendant  showed 
a  sufficient  cause  for  a  refusal  to  obey  the  mandate  of  the  writ,  and 
gave  judgment  accordingly. 

The  twenty-eighth  section  of  the  bank  charter,  which  was  repealed 
by  the  act  of  1845,  provided  "that  the  bills  and  notes  of  said  insti- 
tution shall  be  received  iu  all  payments  of  debts  due  to  the  State  of 
Arkansas.'"'  And  the  question  raised  for  consideration  and  decision 
is,  whether  the  repeal  of  this  section  brings  the  case  within  the 
Constitution  of  the  United  States,  which  prohibits  a  State  from 
impairing  the  obligations  of  a  contract. 

The  entire  stock  of  the  bank  is  owned  by  the  State.  It  furnishes 
the  capital  and  receives  the  profits.  And,  in  addition  to  the  credit 
given  to  the  notes  of  the  bank  by  the  capital  provided,  the  State 
declares  in  the  charter,  they  shall  be  received  in  all  payments  of 
debts  due  to  it.  Is  this  a  contract  ?  A  contract  is  defined  to  be  an 
agreement  between  competent  persons,  to  do  or  not  to  do  a  certain 
thing.  The  undertaking  on  the  part  of  the  State  is,  to  receive  the 
notes  of  the  bank  in  payment  from  its  debtors.  This  comes  within 
the  definition  of  a  contract.  It  is  a  contract  founded  upon  a  good  and 
valuable  consideration;  a  consideration  beneficial  to  the  State,  as  its 
profits  are  increased  by  sustaining  the  credit,  and  consequently  ex- 
tending the  circulation,  of  the  paper  of  the   bank. 

With  whom  was  this  contract  made  ?  We  answer,  with  the  holders 
of  the  'paper  of  the  bank.  The  notes  are  made  payable  to  bearer ; 
consequently,  every  bona  fide  holder  has  a  right,  under  the  twenty- 
eighth  section,  to  pay  to  the  State  any  debt  he  may  owe  it,  in  the 
paper  of  the  bank.  It  is  a  continuing  guarantee  by  the  State,  that 
the  notes  shall  be  so  received.  Such  a  contract  would  be  binding  on 
an  individual,  and  it  is  not  less  so  on  a  State. 

That  the  State  had  the  right  to  repeal  the  above  section  may  be 
admitted.  And  the  emissions  of  the  bank  subsequently  are  without 
the  guarantee.  But  the  notes  in  circulation  at  the  time  of  the  repeal 
are  not  alfected  by  it.  The  holder  may  still  claim  the  right,  by  the 
force  of  the  contract,  to  discharge  any  debt  he  may  owe  to  the  State 
in  the  notes  thus  issued. 

It  is  argued  that  there  could  have  been  violated  or  impaired  no 
contract  with  the  plaintiff  in  error,  as  it  does  not  appear  he  had  the 
notes  tendered  by  him  in  his  possession  at  the  time  the  twenty-eighth 
section  was  repealed. 


1000  PROTECTION   TO   CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

It  is  admitted  that  he  had  the  notes  in  his  possession  at  the  time 
he  made  the  tender,  and  that  they  were  issued  by  the  bank  before  the 
repeal  of  the  section  ;  and  nothing  more  than  this  could  be  required. 

The  guarantee  of  the  State,  that  the  notes  of  the  bank  should  be 
received  in  discharge  of  public  dues,  embraced  all  the  bills  issued  by 
it ;  the  repeal  of  the  guarantee  was  intended,  no  doubt,  to  exclude  all 
the  notes  of  the  bank  then  in  circulation.  Until  the  repeal  of  the 
twenty-eighth  section,  the  State  continued  to  receive  and  pay  out 
these  notes.  Up  to  that  time,  no  one  doubted  the  obligation  of  the 
State  to  receive  them.  The  law  was  absolute  and  imperative  on  the 
officers  of  the  State.  The  holder  of  the  paper  claimed  the  benefit  of 
this  obligation,  and  it  is  supposed  his  right  could  never  have  been 
questioned.  The  notes  were  payable  to  bearer,  and  the  bearer  was 
the  only  person  who  had  a  right  to  demand  payment  of  the  bank,  or 
to  pay  them  into  the  state  treasury  in  discharge  of  a  debt.  The 
guarantee  included  all  the  notes  of  the  bank  in  circulation  as  clearly 
as  if  on  the  face  of  every  note  the  words  had  been  engraved :  "  This 
note  shall  be  received  by  the  State  in  payment  of  debts."  And  that 
the  legislature  could  not  withdraw  this  obligation  from  the  notes  in 
circulation  at  the  time  the  guarantee  was  repealed,  is  a  position  which 
can  require  no  argument.  Any  one  had  a  right  to  receive  them,  and 
to  test  the  constitutionality  of  the  repeal. 

A  State  can  no  more  impair,  by  legislation,  the  obligation  of  its 
own  contracts,  than  it  can  impair  the  obligation  of  the  contracts  of 
individuals.  We  naturally  look  to  the  action  of  a  sovereign  state 
to  be  characterized  by  a  more  scrupulous  regard  to  justice,  and  a 
higher  morality,  than  belong  to  the  ordinary  transactions  of  individ- 
uals. The  obligation  of  the  State  of  Arkansas  to  receive  the  notes 
of  the  bank,  in  payment  of  its  debts,  is  much  stronger  than  in  the 
above  case  of  individual  guarantee. 

The  bank  belonged  to  the  State,  and  it  realized  the  profits  of  its 
operations.  It  was  conducted  by  the  agents  of  the  State,  under  the 
supervision  of  the  legislature.  By  the  guarantee,  the  notes  of  the  bank, 
for  the  payment  of  debts  to  the  State,  were  equal  to  gold  and  silver. 
This,  to  some  extent,  sustained  their  credit,  and  gave  them  currency. 
Loans  were  made  by  the  bank  on  satisfactory  security.  The  debts 
of  the  bank,  or  a  large  portion  of  them,  may  fairly  be  presumed  to 
have  been  collected.  But  the  means  of  the  bank,  thus  under  the 
control  of  the  State,  became  exhausted.  Whether  this  was  the  result 
of  withdrawing  the  capital  from  the  bank,  by  the  State,  does  not 
appear  upon  the  record.  We  only  know  the  fact,  that  its  funds 
have  disappeared,  leaving,  it  is  said,  a  large  amount  of  its  paper, 
issued  before  the  repeal  of  the  guarantee,  worthless,  in  the  hands  of 
the  citizens  of  the  State. 

The  obligation  of  the  State  to  receive  these  notes  is  denied,  on  the 
ground  that  the  twenty-eighth  section  was  a  general  provision,  liable 


SECT.  I.]  McGAHEY    V.    VIRGINIA.  1001 

to  be  repealed  at  any  time  by  the  legislature.  And  it  is  compared 
to  a  general  provision  to  receive,  for  public  dues,  the  paper  of  banks 
generally,  unconnected  with  the  State.  There  is  no  analogy  in  the 
two  cases.  One  is  a  question  of  public  policy,  influenced  by  consid- 
erations of  general  convenience,  which  every  one  knows  may  be 
changed  at  the  discretion  of  the  legislature.  But  the  other  arises  out 
of  a  contract  incorporated  into  the  charter,  imposing  an  obligation  on 
the  State  to  receive,  in  payment  of  all  debts  due  to  it,  the  paper  of  a 
bank  owned  by  the  State,  and  whose  notes  are  circulated  for  its 
benefit.  The  power  of  the  legislature  to  repeal  the  section,  the  stock 
of  the  bank  being  owned  by  the  State,  is  not  controverted ;  but  that 
act  cannot  affect  the  notes  in  circulation  at  the  time  of  the  repeal. 

It  is  objected,  that  this  view  trenches  upon  the  sovereignty  of  the 
State,  in  the  exercise  of  its  taxing  power  and  in  the  regulation  of  its 
currency.  We  are  not  aware  that  a  State  has  power  over  the  cur- 
rency further  than  the  right  to  establish  banks,  to  regulate  or  pro- 
hibit the  circulation,  within  the  State,  of  foreign  notes,  and  to 
determine  in  what  the  public  dues  shall  be  paid. 

It  is  a  principle  controverted  by  no  one,  that,  on  general  questions 
of  policy,  one  legislature  cannot  bind  those  which  shall  succeed  it ; 
but  it  is  equally  true  and  undoubted,  that  a  legislature  may  make  a 
contract  which  shall  bind  those  that  shall  come  after  it. 

In  sustaining  the  application  for  a  mandamus,  the  Supreme  Court 
of  the  State  exercised  jurisdiction  in  the  case.  To  that  court  exclu- 
sively belongs  the  question  of  its  own  jurisdiction.  For  the  reasons 
stated,  the  judgment  of  the  Supreme  Court  is  reversed,  and  the  cause 
is  remanded  for  further  proceedings  to  that  court,  as  it  may  have 
jurisdiction,  in  conformity  to  the  opinion  of  this  court.^ 

1  Mr.  Justice  Greee  delivered  a  dissentiug  opinion  in  which  Mr.  Justice 
C.\TRON  and  Mr.  Justice  Daniel  concurred.     Mr.  Justice  Nelson  also  dissented. 

Several  cases  have  been  decided  in  the  Supreme  Court  of  the  United  States  arising 
under  provisions  in  a  refunding  act  in  Virginia  by  which  the  coupons  of  the  refunding 
bonds  were  made  receivable  in  payment  of  taxes.  In  the  last  of  these  cases,  McCiahey 
V.  Virginia,  135  U.  S.  662  (1890),  Mr.  Justice  Bradley,  delivering  the  opinion  of 
the  court,  uses  this  language  :  — 

"  It  has  always  been  contended  on  the  part  of  the  bondholders  that  this  statute 
created  a  contract  between  them  and  the  State,  firm  and  inviolable,  which  the  legislature 
had  no  constitutional  right  to  violate  or  impair  ;  and  such  was,  for  several  years,  the 
uniform  holding  of  the  Supreme  Court  of  Appeals  of  Virginia.  See  Antoni  v. 
Wright,  22  Grattan,  8.33,  November  term,  1872;  Wise  v.  Rogers,  24  Grattan,  169; 
Clarke  v.  Tyler,  30  Grattan,  134.  A  different  view,  however,  has  since  been  taken  by 
the  Court  of  Appeals,  which  now  holds  that  the  act  of  1871  was  unconstitutional 
from  its  inception,  being  repugnant  to  certain  provisions  of  the  Constitution  of  the 
State  adopted  in  1869.  An  elaborate  argument  to  this  effect  is  contained  iu  the 
opinion  of  the  court  rendered  in  one  of  the  cases  now  before  us,  Vashon  v.  Greenhow, 
decided  January  14,  1886.  In  ordinary  cases  the  decision  of  the  highest  court  of  a 
State  with  regard  to  the  validity  of  one  of  its  statutes  would  be  binding  upon  this 
court ;  but  where  the  (juestion  raised  is  whether  a  contract  has  or  has  not  been  made, 
the  obligation  of  which  is  alleged  to  hnve  been  impaired  by  legislative  action,  it  is  the 
prerogative  of  this  court,  under  the  Constitution  of  the  United  States  and  the  acts  of 


1002      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

Congress  relating  to  writs  of  error  to  tlie  judgments  of  state  courts,  to  inquire,  and 
iud"-e  for  itself,  with  regard  to  the  making  of  such  contract,  whatever  may  be  the 
views  or  decisions  of  the  state  courts  in  relation  thereto. 

"The  decisions  of  this  court,  therefore,  in  reference  to  the  question  whether  a 
valid  contract  was  made  by  the  statute  in  question  between  the  State  of  Virginia  and 
the  holders  of  the  bonds  authorized  by  said  act,  are  to  be  considered  as  binding  upon 
us,  although  a  contrary  view  may  have  been  taken  by  the  courts  of  Virginia;  and  in 
view  of  this  principle  of  constitutional  law,  and  of  the  decisions  made  by  this  court,  we 
have  no  hesitation  in  saying  that  the  act  of  1871  was  a  valid  act,  and  that  it  did  and 
does  constitute  a  contract  between  the  State  and  the  holders  of  the  bonds  issued  under  it, 
and  that  the  holders  of  the  coupons  of  said  bonds,  whether  still  attached  thereto  or 
separated  therefrom,  are  entitled,  by  a  solemn  engagement  of  the  State,  to  use  them 
in  payment  of  State  taxes  and  public  dues.  This  was  determined  in  Hartman  v. 
Greenhow,  102  U.  S.  672,  decided  in  January,  1881  ;  in  Antoni  v.  Greenhow,  107 
U.  S.  769,  decided  in  March,  1883;  in  the  Virginia  Coupon  Cases,  114  U.  S.  269, 
decided  in  April,  1885;  and  in  all  the  cases  on  the  subject  that  have  come  before 
this  court  for  adjudication.  This  question,  therefore,  may  be  considered  as  fore- 
closed and  no  longer  open  for  consideration.  It  may  be  laid  down  as  undoubted  law 
that  the  lawful  owner  of  any  such  coupons  has  the  right  to  tender  the  same  after 
maturity  in  absolute  payment  of  all  taxes,  debts,  dues,  and  demands  due  from  him  to 
the  State.  The  only  question  of  difficulty  which  can  arise  in  any  case  is  as  to  the 
mode  of  relief  which  the  owner  of  such  coupons  is  entitled  to  in  case  they  are  refused 
when  properly  tendered  in  making  his  payment,  or  as  to  the  cases  which  may  be  ex- 
cepted from  the  operation  of  his  right." 

In  Murray  v.  Charleston,  96  U.  S.  432  (1877),  was  involved  the  validity  of  the 
action  of  the  city  of  Charleston  in  South  Carolina  in  levying  a  tax  upon  bonds  of  the 
city  held  by  non-resident  owners.  Mr.  Justice  Strong,  delivering  the  opinion  of 
the  court,  uses  this  language :  — 

"  We  come,  then,  to  the  question  whether  the  ordinances  decided  by  the  court  to 
be  valid  did  impair  the  obligation  of  the  city's  contract  with  the  plaintiff.  The 
solution  of  this  question  depends  upon  a  correct  understanding  of  what  that  oliligation 
was.  By  the  certificates  of  stock,  or  city  loan,  held  by  the  plaintiff,  the  city  assumed 
to  pay  to  him  the  sum  mentioned  in  them,  and  to  pay  six  per  cent  interest  in 
quarterlv  payments.  The  obligation  undertaken,  therefore,  was  both  to  pay  the 
interest  at  the  rate  specified,  and  to  pay  it  to  the  plaintiff.  Such  was  the  contract, 
and  such  was  the  whole  contract.  It  contained  no  reservation  or  restriction  of  the 
duty  described.  But  the  city  ordinances,  if  they  can  have  any  force,  change  both  the 
form  and  effect  of  the  undertaking.  They  are  the  language  of  the  promisor.  In  sub- 
stance, they  say  to  the  creditor  :  '  True,  our  assumption  was  to  pay  to  you  quarterly  a 
sum  of  money  equal  to  six  per  cent  per  annum  on  the  debt  we  owe  you.  Such  was 
our  express  engagement.  But  we  now  lessen  our  obligation.  Instead  of  paying  all  the 
interest  to  you,  we  retain  a  part  for  ourselves,  and  substitute  the  part  retained  for  a 
part  of  what  we  expressly  promised  you.'  Thus  applying  the  ordinances  to  the  contract, 
it  becomes  a  very  different  thing  from  what  it  was  when  it  was  made ;  and  the  change  is 
effected  by  legislation,  by  ordinances  of  the  city,  enacted  under  the  asserted  authority  of 
laws  passed  by  the  legislature.  That  by  such  legislation  the  obligation  of  the  contract 
is  impaired  is  manifest  enough,  unless  it  can  be  held  there  was  some  implied  reser- 
vation of  a  right  in  the  creditor  to  change  its  terms,  a  right  reserved  when  the  contract 
was  made,  —  unless  some  power  was  withheld,  not  expressed  or  disclosed,  but  which 
entered  into  and  linn'ted  the  express  undertaking.  But  how  that  can  be,  —  how  an 
express  contract  can  contain  an  implication,  or  consist  with  a  reservation  directly  con- 
trary to  the  words  of  the  instrument,  has  never  yet  been  discovered. 

"It  has  been  strenuously  argued  on  behalf  of  the  defendant  that  the  State  of  South 
Carolina  and  the  city  council  of  Charleston  possessed  the  power  of  taxation  when  the 
contracts  were  made,  that  by  the  contracts  the  city  did  not  surrender  this  power.;  that, 
therefore,  the  contracts  were  subject  to  its  possible  exercise,  and  that  the  city  ordi- 
nances were  only  an  exertion  of  it.  We  are  told  tlie  power  of  a  State  to  impose  taxes 
upon  subjects  within  its  jurisdiction  is  unlimited  (with  some  few   exceptions),  and 


SECT.  I.]  SALT   COMPANY   V.    EAST   SAGINAW.  1003 

SALT  COMPANY   v.   EAST   SAGINAW. 
13  Wallace,  373.     1871. 

[In  1859  the  legislature  of  Michigan  passed  an  act  for  encourag- 
ing the  manufacture  of  salt,  which  provided  that  all  corporations 
formed  or  which  might  be  formed  for  the  purpose  of  boring  for  and 
manufacturing  salt  from  salt  water  in  the  State,  and  all  individuals 
engaged  or  to  be  engaged  in  such  boring  and  manufacture,  should 
hold  all  their  property,  real  and  personal,  used  for  the  purpose  exempt 
from  taxation  of  any  kind,  and  that  a  bounty  of  ten  cents  per  bushel 
should  be  paid  to  each  such  corporation  or  individual  for  salt  manu- 
factured from  water  obtained  by  boring  in  the  State.  It  appeared 
that  the  East  Saginaw  Salt  Manufacturing  Company  had,  after  the 
passage  of  this  act,  been  organized  and  operated  as  a  corporation  for 
the  purpose  of  manufacturing  salt  from  salt  water  to  be  obtained  in 
the  State.  In  1861  the  statute  was  amended  by  greatly  limiting  its 
benefits,  and  the  plaintiff  brought  action  to  restrain  the  collection  of 
taxes  which  were  within  the  exemption  of  the  original  act  but  not 
within  the  provisions  of  the  act  as  amended,  alleging  that  it  had, 
after  the  passage  of  the  original  act,  spent  large  sums  of  money  in 
erecting  works  for  the  manufacture  of  salt  and  in  manufacturing  the 
same.  A  demurrer  to  the  bill  was  overruled  in  the  lower  court, 
but  on  appeal  to  the  Supreme  Court  of  the  State  this  ruling  was 
reversed  and  the  bill  was  dismissed,  which  decision  was  by  the  Salt 
Company  brought  to  this  court  for  review  on  error.] 

Mr.  Justice  Bbadley  delivered  the  opinion  of  the  court. 

It  is  unnecessary  at  this  time  to  discuss  the  question  of  power  on 
the  part  lof  a  State  legislature  to  make  a  contract  exempting  certain 

that  it  extends  to  every  thing  that  exists  by  its  authority  or  is  introduced  by  its  per- 
mission. Hence  it  is  inferred  that  the  contracts  of  the  city  of  Charleston  were  made 
with  reference  to  this  power,  and  in  subordination  of  it. 

"  All  this  may  be  admitted,  but  it  does  not  meet  tlie  case  of  the  defendant.  "We  do 
not  question  the  existence  of  a  State  power  to  levy  taxes  as  claimed,  nor  the  subordi- 
nation of  contracts  to  it,  so  far  as  it  is  unrestrained  by  constitutional  limitation.  But 
the  power  is  not  without  limits,  and  one  of  its  limitations  is  found  in  the  clause  of  the 
Federal  Constitution,  that  no  State  shall  pass  a  law  impairing  the  obligation  of  con- 
tracts. A  change  of  the  expressed  stipulations  of  a  contract,  or  a  relief  of  a  debtor 
from  strict  and  literal  compliance  with  its  requirements,  can  no  more  be  effected  by  an 
exertion  of  the  taxing  power  tlian  it  can  be  by  the  exertion  of  any  other  power  of  a 
State  legislature.  The  constitutional  provision  against  impairing  contract  obligations 
is  a  limitation  upon  the  taxing  power,  as  well  as  upon  all  legislation,  whatever  form 
it  mav  assume.  Indeed,  attempted  State  taxation  is  the  mode  most  frequently  adojited 
to  affect  contracts  contrary  to  the  constitutional  inhibition.  It  most  frequently  calls 
for  the  exercise  of  our  supervisory  power.  It  may,  then,  safely  be  affirmed  that  uo 
State,  by  virtue  of  its  taxing  power,  can  say  to  a  debtor,  'You  need  not  pay  to  your 
creditorall  of  what  you  have  promised  to  him.  You  may  .satisfy  yonr  duty  to  him 
by  retaining  a  part  for  yourself,  or  for  some  municipality,  or  for  the  State  treasury.' 
Much  less  can  a  city  .s.ay,  '  We  will  ta.x  our  debt  to  you,  and  in  virtue  of  the  tax 
withhold  a  part  for  our  own  use.' " 


1004      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

property  from  taxation.  Such  a  power  has  been  frequently  asserted 
and  sustained  by  the  decisions  of  this  court. 

The  question  in  this  case  is,  whether  any  contract  was  made  at  all ; 
and,  if  there  was,  whether  it  was  a  contract  determinable  at  will,  or 
of  perpetual  obligation  ? 

Had  the  plaintiif  in  error  been  incorporated  by  a  special  charter, 
and  had  that  charter  contained  the  provision  that  all  its  lands  and 
property  used  in  the  manufacture  of  salt  should  forever,  or  during 
the  continuance  of  its  charter,  be  exempt  from  taxation,  and  had  that 
charter  been  accepted  and  acted  on,  it  would  have  constituted  a  con- 
tract. But  the  case  before  us  is  not  of  that  kind.  It  declares,  in 
purport  and  effect,  that  all  corporations  and  individuals  who  shall 
manufacture  salt  in  Michigan  from  water  obtained  by  boring  in  that 
State,  shall  be  exempt  from  taxation  as  to  all  property  used  for  that 
purpose,  and,  after  they  shall  have  manufactured  five  thousand 
bushels  of  salt,  they  shall  receive  a  bounty  of  ten  cents  per  bushel. 
That  is  the  whole  of  it.  As  the  Supreme  Court  of  Michigan  says,  it 
is  a  bounty  law,  and  nothing  more;  a  law  dictated  by  public  policy 
and  the  general  good,  like  a  law  offering  a  bounty  of  fifty  cents  for 
the  killing  of  every  wolf  or  other  destructive  animal.  Such  a  law 
is  not  a  contract,  except  to  bestow  the  promised  bounty  upon  those 
who  earn  it,  so  long  as  the  law  remains  unrepealed.  There  is  no 
pledge  that  it  shall  not  be  repealed  at  any  time.  As  long  as  it 
remains  a  law  every  inhabitant  of  the  State,  every  corporation  hav- 
ing the  requisite  power,  is  at  liberty  to  avail  himself,  or  itself,  of  its 
advantages,  at  will,  by  complying  with  its  terms,  and  doing  the 
things  which  it  promises  to  reward,  but  is  also  at  liberty,  at  any 
time,  to  abandon  such  a  course.  There  is  no  obligation  on  any 
person  to  comply  with  the  conditions  of  the  law.  It  is  a  matter 
purely  voluntary  ;  and,  as  it  is  purely  voluntary  on  the  one  part,  so 
it  is  purely  voluntary  on  the  other  part ;  that  is,  on  the  part  of  the 
legislature,  to  continue,  or  not  to  continue,  the  law.  The  law  in 
question  says  to  all :  You  shall  have  a  bounty  of  ten  cents  per 
bushel  for  all  salt  manufactured,  and  the  property  used  shall  be  free 
from  taxes.  But  it  does  not  say  how  long  this  shall  continue  ;  nor 
do  the  parties  who  enter  upon  the  business  promise  how  long  they 
will  continue  the  manufacture.  It  is  an  arrangement  determinable 
at  the  will  of  either  of  the  parties,  as  much  so  as  the  hiring  of 
a  laboring  man  by  the  day. 

If  it  be  objected  that  such  a  view  of  the  case  exposes  parties  to 
hardship  and  injustice,  the  answer  is  ready  at  hand,  and  is  this  :  It 
will  not  be  presumed  that  the  legislature  of  a  sovereign  State  will 
do  acts  that  inflict  hardship  and  injustice. 

In  short,  the  law  does  not,  in  our  judgment,  belong  to  that  class  of 
laws  which  can  be  denominated  contracts,  except  so  far  as  they  have 
been  actually  executed  and  complied  with.     There  is  no  stipulation, 


SECT.  I.]  FISK   V.    JEFFERSON   POLICE   JURY.  1005 

express  or  implied,  that  it  shall  not  be  repealed.  General  encour- 
agements, held  out  to  all  persons  indiscriminately,  to  engage  in  a 
particular  trade  or  manufacture,  whether  such  encouragement  be  in 
the  shape  of  bounties  or  drawbacks,  or  other  advantage,  are  always 
under  the  legislative  control,  and  may  be  discontinued  at  any  time. 

Judgment  affirmed. 


FISK  V.  JEFFERSON  POLICE  JURY. 
116  United  States,  131.     1885. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

[This  case  involves  the  question  whether  plaintiff  in  error,  who 
was  an  attorney  at  law,  could,  recover  of  the  Parish  of  Jefferson  for 
salary  and  fees  due  him  from  the  parish  as  district  attorney.  He 
obtained  judgment  in  the  State  court  against  the  police  jury,  which 
is  the  governing  body  of  the  parish,  and  being  unable  to  obtain  the 
payment  of  his  judgment,  he  applied  for  a  writ  of  mandamus  to  com- 
pel the  assessment  and  collection  of  a  tax,  which  right  was  denied, 
in  the  Supreme  Court  of  the  State,  and  the  case  was  brought  to  this 
court  by  writ  of  error.] 

We  do  not  assert  the  proposition  that  a  person  elected  to  an  office 
for  a  definite  term  has  any  such  contract  with  the  government  or 
with  the  appointing  body  as  to  prevent  the  legislature  or  other  proper 
authority  from  abolishing  the  office  or  diminishing  its  duration  or 
removing  him  from  office.  So,  though  when  appointed  the  law  has 
provided  a  fixed  compensation  for  his  services,  there  is  no  contract 
which  forbids  the  legislature  or  other  proper  authority  to  change  the 
rate  of  compensation  for  salary  or  services  after  the  change  is  made, 
though  this  may  include  a  part  of  the  term  of  the  office  then  unex- 
pired.    Butler  V.  Pennsylvania,  10  How,  402. 

But,  after  the  services  have  been  rendered,  under  a  law,  resolution, 
or  ordinance  which  fixes  the  rate  of  compensation,  there  arises  an 
implied  contract  to  pay  for  those  services  at  that  rate.  This  contract 
is  a  completed  contract.  Its  obligation  is  perfect,  and  rests  on  the 
remedies  which  the  law  then  gives  for  its  enforcement.  The  vice  of 
the  argument  of  the  Supreme  Court  of  Louisiana  is  in  limiting  the 
protecting  power  of  the  constitutional  provision  against  impairing 
the  obligation  of  contracts  to  express  contracts,  to  specific  agree- 
ments, and  in  rejecting  that  much  larger  class  in  which  one  party 
having  delivered  property,  paid  money,  rendered  service,  or  suffered 
loss  at  the  request  of  or  for  the  use  of  another,  the  law  completes  the 
contract  by  implying  an  obligation  on  the  part  of  the  latter  to  make 
compensation.  This  obligation  can  no  more  be  impaired  by  a  law  of 
the  State  than  that  arising  on  a  promissory  note. 


1006      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

The  case  of  Fisk  was  of  this  character.  His  appointment  as  dis- 
trict attorney  was  lawful,  and  was  a  request  made  to  him  by  the 
proper  authority  to  render  the  services  demanded  of  that  office.  He 
did  render  these  services  for  the  parish,  and  the  obligation  of  the 
police  jury  to  pay  for  them  was  complete.  Not  only  were  the  ser- 
vices requested  and  rendered,  and  the  obligation  to  pay  for  them 
perfect,  but  the  measure  of  compensation  was  also  fixed  by  the 
previous  order  of  the  police  jury.  There  was  here  wanting  no  ele- 
ment of  a  contract.  The  judgment  in  the  court  for  the  recovery  of 
this  compensation  concluded  all  these  questions.  Hall  v.  AVisconsin, 
103  U.  S.  5,  10;  Newton  v.  Commissioners,  100  U.  S.  548,  559. 

The  judgments  of  the  Supreme  Court  of  Louisiana  are  therefore 
reversed,  and  the  cases  are  remanded  to  that  court  for  further 
proceedings  not  inconsistent  with  this  opinion. 


TRUSTEES   OF   DARTMOUTH   COLLEGE  v.   WOODWARD. 

4  Wheaton,  518;  4  Curtis,  463.     1819. 

[This  was  an  action  of  trover  brought  in  the  State  couit  of  New 
Hampshire  by  plaintiff  in  error  for  the  record  books  and  other  docu- 
ments of  the  corporation  detained  by  defendant  Woodward.  Plain- 
tiffs were,  by  letters  patent  of  King  George  III.  issued  in  1769 
through  the  then  governor  of  the  province  of  New  Hampshire,  created 
a  corporation,  and  continued  to  claim  as  such  by  succession  in  ac- 
cordance with  the  provisions  of  the  original  letters  patent.  Subse- 
quently, in  1816,  certain  statutes  were  passed  by  the  State  providing 
for  the  reorganization  of  the  corporation  and  continuance  of  the  same, 
under  the  title  of  "The  Trustees  of  Dartmouth  University,"  and 
defendant,  who  had  been  the  secretary  and  the  treasurer  of  the 
plaintiff  corporation,  having  been  deposed  from  such  offices  by  that 
corporation  and  elected  to  the  same  position  by  the  body  claiming  to 
act  under  the  State  laws,  retained  possession  of  the  records  of  the 
college,  refusing  to  deliver  them  to  plaintiffs,  who  asserted  their 
right  thereto  under  the  original  charter.  The  jury  in  the  State  court 
returned  a  special  verdict  to  the  effect  that  if  the  State  statutes  were 
valid,  defendant  was  entitled  to  possession  of  the  records;  otherwise 
the  verdict  should  be  entered  for  plaintiff  for  twenty  thousand 
dollars  damages.  It  appears  that  the  judgment  of  the  State  court 
was  for  defendant,  although  the  statement  in  the  case  is  to  the  effect 
that  it  was  for  plaintiff  in  the  lower  court.  Plaintiffs  bring  the  case 
to  this  court  by  writ  of  error.  The  court  discusses  at  length  the 
nature  of  the  organization  provided  for  by  the  letters  patent,  and 
finds  that  such  organization  became  by  the  letters  patent  a  private 


SECT.  I,]       TRUSTEES   OF   DARTMOUTH    COLLEGE   V.    WOODWARD.      1007 

eleemosynary  corporation.  The  portion  of  the  opinion  relating  to  the 
question  whether  the  statutes  of  New  Hampshire  were  invalid  as 
impairing  the  obligation  of  the  contract  involved  in  the  original 
charter  is  as  follows.] 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 

From  this  review  of  the  charter,  it  appears  that  Dartmouth  College 
is  an  eleemosynary  institution,  incorporated  for  the  purpose  of  per- 
petuating the  application  of  the  bounty  of  the  donors  to  the  specified 
objects  of  that  boutity  ;  that  its  trustees  or  governors  were  originally 
named  by  the  founder,  and  invested  with  the  power  of  perpetuating 
themselves  ;  that  they  are  not  public  officers,  nor  is  it  a  civil  institu- 
tion, participating  in  the  administration  of  government ;  but  a  charity 
school,  or  a  seminary  of  education,  incorporated  for  the  preservation 
of  its  property,  and  the  perpetual  application  of  that  property  to  the 
objects  of  its  creation. 

Yet  a  question  remains  to  be  considered,  of  more  real  difficulty,  on 
which  more  doubt  has  been  entertained  than  on  all  that  have  been 
discussed.  The  founders  of  the  college,  at  least  those  whose  contri- 
butions were  in  money,  have  parted  Avith  the  property  bestowed  upon 
it,  and  their  representatives  have  no  interest  in  that  property.  The 
donors  of  land  are  equally  without  interest,  so  long  as  the  corporation 
shall  exist.  Could  they  be  found,  they  are  unaffected  by  any  altera- 
tion in  its  constitution,  and  probably  regardless  of  its  form,  or  even 
of  its  existence.  The  students  are  fluctuating,  and  no  individual 
among  our  youth  has  a  vested  interest  in  the  institution  which  can 
be  asserted  in  a  court  of  justice.  Neither  the  founders  of  the  college, 
nor  the  youth  for  whose  benefit  it  was  founded,  complain  of  the  altera- 
tion made  in  its  charter,  or  think  themselves  injured  by  it.  The  trus- 
tees alone  complain,  and  the  trustees  have  no  beneficial  interest  to  be 
protected.  Can  this  be  such  a  contract  as  the  Constitution  intended 
to  withdraw  from  the  power  of  State  legislation  ?  Contracts  the 
parties  to  which  have  a  vested  beneficial  interest,  and  those  only,  it 
has  been  said,  are  the  objects  about  which  the  Constitution  is  solici- 
tous, and  to  which  its  protection  is  extended. 

The  court  has  bestowed  on  this  argument  the  most  deliberate  con- 
sideration, and  the  result  will  be  stated.  Dr.  Wheelock,  acting  for 
himself,  and  for  those  who  at  his  solicitation  had  made  contributions 
to  his  school,  applied  for  this  charter,  as  the  instrument  which  should 
enable  him  and  them  to  perpetuate  their  beneficent  intention.  It 
was  granted.  An  artificial,  immortal  being  was  created  by  the  crown, 
capable  of  receiving  and  distributing  forever,  according  to  the  will  of 
the  donors,  the  donations  which  should  be  made  to  it.  On  this  being, 
the  contributions  which  had  been  collected  were  immediately  be- 
stowed. These  gifts  were  made,  not  indeed  to  make  a  profit  for  the 
donors  or  their  posterity,  but  for  something  in  their  opinion  of  ines- 
timable value;  for  something  which  they  deemed  a  full  equivalent  for 


1008      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

the  money  with  -which  it  was  purchased.  The  consideration  for  which 
they  stipulated,  is  the  perpetual  application  of  the  fuud  to  its  object, 
in  the  mode  prescribed  by  themselves.  Their  descendants  may  take 
no  interest  in  the  preservation  of  this  consideration.  But  in  this 
respect  their  descendants  are  not  their  representatives.  They  are  rep- 
resented by  the  corporation.  The  corporation  is  the  assignee  of  their 
rights,  stands  in  their  place,  and  distributes  their  bounty,  as  they 
would  themselves  have  distributed  it,  had  they  been  immortal.  So 
with  respect  to  the  students  who  are  to  derive  learning  from  this 
source.  The  corporation  is  a  trustee  for  them  also.  Their  potential 
rights,  which,  taken  distributively,  are  imperceptible,  amount,  collec- 
tively, to  a  most  important  interest.  These  are,  in  the  aggregate,  to 
be  exercised,  asserted,  and  protected  by  the  corporation.  They  were 
as  completely  out  of  the  donors,  at  the  instant  of  their  being  vested 
in  the  corporation,  and  as  incapable  of  being  asserted  by  the  students, 
as  at  present. 

According  to  the  theory  of  the  British  Constitution,  their  parliament 
is  omnipotent.  To  annul  corporate  rights  might  give  a  shock  to 
public  opinion,  which  that  government  has  chosen  to  avoid ;  but  its 
power  is  not  questioned.  Had  parliament,  immediately  after  the 
emanation  of  this  charter,  and  the  execution  of  those  conveyances 
which  followed  it,  annulled  the  instrument,  so  that  the  living  donors 
would  have  witnessed  the  disappointment  of  their  hopes,  the  perfidy 
of  the  transaction  would  have  been  universally  acknowledged.  Yet 
then,  as  now,  the  donors  would  have  had  no  interest  in  the  property; 
then,  as  now,  those  who  might  be  students  would  have  had  no  rights 
to  be  violated;  then,  as  now,  it  might  be  said,  that  the  trustees,  in 
whom  the  rights  of  all  were  combined,  possessed  no  private,  individual, 
beneficial  interest  in  the  property  confided  to  their  protection.  Yet  the 
contract  would  at  that  time  have  been  deemed  sacred  by  all.  What 
has  since  occurred  to  strip  it  of  its  inviolability  ?  Circumstances 
have  not  changed  it.  In  reason,  in  justice,  and  in  law,  it  is  now  what 
it  was  in  1769. 

This  is  plainly  a  contract  to  which  the  donors,  the  trustees,  and  the 
crown  (to  whose  rights  and  obligations  New  Hampshire  succeeds) 
were  the  original  parties.  It  is  a  contract  made  on  a  valuable  con- 
sideration. It  is  a  contract  for  the  security  and  disposition  of  prop- 
erty. It  is  a  contract  on  the  faith  of  which  xeal  and  personal  estate 
has  been  conveyed  to  the  corporation.  It  is  then  a  contract  within  the 
letter  of  the  Constitution,  and  within  its  spirit  also,  unless  the  fact 
that  the  property  is  invested  by  the  donors  in  trustees,  for  the  pro- 
motion of  religion  and  education,  for  the  benefit  of  persons  who  are 
perpetually  changing,  though  the  objects  remain  the  same,  shall  cre- 
ate a  particular  exception,  taking  this  case  out  of  the  prohibition 
contained  in  the  Constitution. 

It  is  more  than  possible  that  the  preservation  of  rights  of  this 
description  was  not  particularly  in  the  view  of  the  framers  of  the 


SECT.  I.]       TRUSTEES   OF   DARTMOUTH   COLLEGE    V.   WOODWARD.      1009 

Constitution,  when  the  clause  under  consideration  was  introduced  into 
that  instrument.  It  is  probable  that  interferences  of  more  frequent 
recurrence,  to  which  the  temptation  was  stronger,  and  of  which  the 
mischief  was  more  extensive,  constituted  the  great  motive  for  imposing 
this  restriction  on  the  State  legislatures.  But  although  a  particular 
and  a  rare  case  may  not,  in  itself,  be  of  sufficient  magnitude  to 
induce  a  rule,  yet  it  must  be  governed  by  the  rule,  when  established, 
unless  some  plain  and  strong  reason  for  excluding  it  can  be  given.  It 
is  not  enough  to  say,  that  this  particular  case  was  not  in  the  mind  of 
the  convention  when  the  article  was  framed,  nor  of  the  American 
people  when  it  was  adopted.  It  is  necessary  to  go  further,  and  to 
say  that,  had  this  particular  case  "been  suggested,  the  language  would 
have  been  so  varied  as  to  exclude  it,  or  it  would  have  been  made  a 
special  exception.  The  case  being  within  the  words  of  the  rule,  must 
be  within  its  operation  likewise,  unless  there  be  something  in  the 
literal  construction  so  obviously  absurd  or  mischievous,  or  repugnant 
to  the  general  spirit  of  the  instrument,  as  to  justify  those  who  ex- 
pound the  Constitution  in  making  it  an  exception. 

The  opinion  of  the  court,  after  mature  deliberation,  is,  that  this  is 
a  contract  the  obligation  of  which  cannot  be  impaired  without 
violating  the  Constitution  of  the  United  States.  This  opinion  ap- 
pears to  us  to  be  equally  supported  by  reason,  and  by  the  former 
decisions  of  this  court. 

2.  We  next  proceed  to  the  inquiry,  whether  its  obligation  has 
been  impaired  by  those  acts  of  the  legislature  of  New  Hampshire  to 
which  the  special  verdict  refers. 

From  the  review  of  this  charter  which  has  been  taken,  it  appears 
that  the  whole  power  of  governing  the  college,  of  appointing  and 
removing  tutors,  of  fixing  their  salaries,  of  directing  the  course  of 
study  to  be  pursued  by  the  students,  and  of  filling  up  vacancies  cre- 
ated in  their  own  body,  was  vested  in  the  trustees.  On  the  part  of 
the  crown,  it  was  expressly  stipulated  that  this  corporation,  thus 
constituted,  should  continue  forever;  and  that  the  number  of  trustees 
should  forever  consist  of  twelve,  and  no  more.  By  this  contract  the 
crown  was  bound,  and  could  have  made  no  violent  alteration  in  its 
essential  terms  without  impairing  its  obligation. 

By  the  Revolution,  the  duties  as  well  as  the  powers  of  government 
devolved  on  the  people  of  New  Hampshire.  It  is  admitted,  that 
among  the  latter  was  comprehended  the  transcendent  power  of  par- 
liament, as  well  as  that  of  the  executive  department.  It  is  too  clear 
to  require  the  support  of  argument,  that  all  contracts  and  rights 
respecting  property  remained  unchanged  by  the  Revolution.  The 
obligations,  then,  which  were  created  by  the  charter  to  Dartmouth 
College,  were  the  same  in  the  new  that  they  had  been  in  the  old 
government.  The  power  of  the  government  was  also  the  same.  A 
repeal  of  this  charter  at  any  time  prior  to  the  adoption  of  the  present 


1010  PROTECTION   TO   CONTRACTS   AND   PROPERTY.       [CHAP.  XVI, 

Constitution  of  the  United  States  would  have  been  an  extraordinary 
and  unprecedented  act  of  power,  but  one  which  could  have  been  con- 
tested only  by  the  restrictions  upon  the  legislature  to  be  found  in 
the  constitution  of  the  State.  But  the  Constitution  of  the  United 
States  has  imposed  this  additional  limitation,  that  the  legislature  of 
a  State  shall  pas5  no  act  "  impairing  the  obligation  of  contracts." 

It  has  been  already  stated,  that  the  act  "  to  amend  the  charter, 
and  enlarge  and  improve  the  corporation  of  Dartmouth  College," 
increases  the  number  of  trustees  to  twenty-one,  gives  the  appoint- 
ment of  the  additional  members  to  the  executive  of  the  State,  and 
creates  a  board  of  overseers,  to  consist  of  twenty-five  persons,  of 
whom  twenty-one  are  also  appointed  by  the  executive  of  New  Hamp- 
shire, who  have  power  to  inspect  and  control  the  most  important 
acts  of  the  trustees. 

On  the  effect  of  this  law,  two  opinions  cannot  be  entertained. 
Between  acting  directly,  and  acting  through  the  agency  of  trustees 
and  overseers,  no  essential  difference  is  perceived.  The  whole  power 
of  governing  the  college  is  transferred  from  trustees,  appointed  accord- 
ing to  the  will  of  the  founder,  expressed  in  the  charter,  to  the  execu- 
tive of  New  Hampshire.  The  management  and  application  of  the 
funds  of  this  eleemosynary  institution,  which  are  placed  by  the 
donors  in  the  hands  of  trustees  named  in  the  charter,  and  empowered 
to  perpetuate  themselves,  are  placed  by  this  act  under  the  control  of 
the  government  of  the  State.  The  will  of  the  State  is  substituted  for 
the  will  of  the  donors,  in  every  essential  operation  of  the  college. 
This  is  not  an  immaterial  change.  The  founders  of  the  college  con- 
tracted not  merely  for  the  perpetual  application  of  the  funds  which 
they  gave  to  the  objects  for  which  those  funds  were  given  ;  they 
contracted,  also,  to  secure  that  application  by  the  constitution  of  the 
corporation.  They  contracted  for  a  system  which  should,  as  far  as 
human  foresight  can  provide,  retain  forever  the  government  of  the 
literary  institution  they  had  formed,  in  the  hands  of  persons  ap- 
proved by  themselves.  This  system  is  totally  changed.  The  charter 
of  1769  exists  no  longer.  It  is  reorganized  ;  and  reorganized  in  such 
a  manner  as  to  convert  a  literary  institution,  moulded  according  to 
the  will  of  its  founders,  and  placed  under  the  control  of  private  lit- 
erary men,  into  a  machine  entirely  subservient  to  the  will  of  govern- 
ment. This  may  be  for  the  advantage  of  this  college  in  particular, 
and  may  be  for  the  advantage  of  literature  in  general ;  but  it  is  not 
according  to  the  will  of  the  donors,  and  is  subversive  of  that  con- 
tract on  the  faith  of  which  their  property  was  given. 

In  the  view  which  has  been  taken  of  this  interesting  case,  the  court 
has  confined  itself  to  the  rights  possessed  by  the  trustees,  as  the 
assignees  and  representatives  of  the  donors  and  founders,  for  the 
benefit  of  religion  and  literature.  Yet  it  is  not  clear  that  the  trustees 
ought  to  be  considered  as  destitute  of  such  beneficial  interest  in  them- 
selves as  the  law  may  respect.      In  addition  to  their  being  the  legal 


SECT.  I.]  THE   BINGHAMPTON   BRIDGE.  1011 

owners  of  the  property,  and  to  their  having  a  freehold  right  in  the 
powers  confided  to  tlieni,  the  charter  itself  countenances  the  idea 
that  trustees  may  also  be  tutors,  with  salaries.  The  first  president 
was  one  of  the  original  trustees;  and  the  charter  provides,  that  in 
case  of  vacancy  in  that  othce,  "  the  senior  professor  or  tutor,  being 
one  of  the  trustees,  shall  exercise  the  office  of  president  until  the 
trustees  shall  make  choice  of.  and  appoint  a  president,"  According 
to  the  tenor  of  the  charter,  then,  the  trustees  might,  without  impro- 
priety, appoint  a  president  and  other  professors  from  their  own  body. 
This  is  a  power  not  entirely  unconnected  with  an  interest.  Even  if 
the  proposition  of  the  counsel  for  the  defendant  were  sustained ;  if  it 
were  admitted  that  those  contracts  only  are  protected  by  the  Con- 
stitution, a  beneficial  interest  in  which  is  vested  in  the  party  who 
appears  in  court  to  assert  that  interest;  yet  it  is  by  no  means  clear 
that  the  trustees  of  Dartmouth  College  have  no  beneficial  interest  in 
themselves. 

But  the  court  has  deemed  it  unnecessary  to  investigate  this  partic- 
ular point,  being  of  opinion,  on  general  principles,  that  in  these 
private  eleemosynary  institutions  the  body  corporate,  as  possessing 
the  whole  legal  and  equitable  interest,  and  completely  representing 
the  donors  for  the  purpose  of  executing  the  trust,  has  rights  which 
are  protected  by  the  Constitution. 

It  results,  from  this  opinion,  that  the  acts  of  the  legislature  of  New 
Hampshire,  which  are  stated  in  the  special  verdict  found  in  this 
cause,  are  repugnant  to  the  Constitution  of  the  United  States ;  and 
that  the  judgment  on  this  special  verdict  ought  to  have  been  for  the 
plaintiffs.  The  judgment  of  the  State  Court  must,  therefore,  be 
reversed.^ 

^  Other  justices  of  the  court  delivered  opinions  concurring  in  the  reversal  of  the 
case,  and  substantially  as  to  the  grounds  assigned  therefor  in  the  opinion  of  the  chief 
justice.     Mr.  Justice  Duvall  dissented. 

In  the  case  of  The  Binghampton  Bridge,  3  Wall.  51  (186,')),  the  question  arose 
as  to  the  rights  of  a  corporation  under  a  charter  autliorizing  it  to  erect  a  toll  bridge, 
and  making  it  unlawful  for  any  person  to  erect  any  other  bridge  or  establish  any  ferry 
across  the  same  stream  within  two  miles  either  above  or  below  the  bridge  erected  l)y 
the  corporation,  and  it  was  contended  that  a  subsetjuent  act  of  the  legislature  autlior- 
izing another  toll  bridge  within  the  specified  limits  was  a  violation  of  the  contract 
involved  in  the  previous  charter.  Mr.  Jdstice  Davis,  delivering  the  opinion  of  the 
court  (Mr.  Chief  Jtstice  Chase,  Mr.  Justice  Field,  and  Mr.  Justice  Greer 
dissenting),  used  this  language:  — 

"  The  constitutional  right  of  one  legislature  to  grant  corporate  privileges  and  fran- 
chises, so  as  to  bind  and  conclude  a  succeeding  one,  has  been  denied.  We  have  suj)- 
posed,  if  anything  was  settled  by  an  unbroken  course  of  decisions  in  the  Federal  and 
State  courts,  it  was  that  an  act  of  incorporation  was  a  contract  between  the  State  and 
the  stockholders.  All  courts  at  this  day  are  estopped  from  questioning  the  doc- 
trine. Tlie  security  of  property  rests  upon  it.  and  every  successful  enterprise  is  under- 
taken in  the  unshaken  belief  that  it  will  never  be  forsaken. 

"  A  departure  from  it  now  would  involve  dangers  to  society  tliat  cannot  be  fore- 
seen, would  shock  the  sense  of  justice  of  the  country,  unhinge  its  l)usiness  interests, 
and  weaken,  if  not  destroy,  that  respect  which  has  always  been  felt  for  the  judicial 
department  of  the  government.     An  attempt  even  to  reaffirm  it  could  only  tend  to 


1012      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

lessen  its  force  and  obligation.  It  received  its  ablest  exposition  in  the  case  of  Dart- 
mouth College  V.  Woodward,  4  AVheat.  418,  which  case  has  ever  since  been  considered 
a  landmark  by  the  profession,  and  no  court  has  since  disregarded  the  doctrine,  that 
the  cliarters  of  private  corporations  are  contracts,  protected  from  -invasion  by  the  Con- 
stitution of  the  United  States.  And  it  ha.s  since  so  often  received  the  solemn  sanction 
of  this  court,  that  it  would  unnecessarily  lengthen  this  opinion  to  refer  to  the  cases,  or 
even  enumerate  them. 

"  The  principle  is  supported  by  reason  as  well  as  authority.  It  was  well  remarked 
by  the  chief  justice  in  the  Dartmouth  College  case,  '  that  the  objects  for  which  a  cor- 
poration is  created  are  universally  such  as  the  government  wishes  to  promote.  They 
are  deemed  beneficial  to  the  country,  and  this  benefit  constitutes  the  consideration,  and 
in  most  cases  the  sole  consideration  for  the  grant.'  The  purposes  to  be  attained  are 
generallv  bevond  the  ability  of  individual  enterprise,  and  can  only  be  accomplished 
through'the  "aid  of  associated  wealth.  This  will  not  be  risked  unless  privileges  are 
given  and  securities  furnished  in  an  act  of  incorporation.  The  wants  of  the  public 
are  often  so  imperative,  that  a  duty  is  imposed  on  government  to  provide  for  them; 
and  as  experience  has  proved  that  a  State  should  not  directly  attempt  to  do  this,  it  is 
necessary  to  confer  on  others  the  faculty  of  doing  what  the  sovereign  power  is  unwill- 
ing to  undertake.  The  legislature,  therefore,  says  to  public-spirited  citizens:  'If  you 
will  embark,  with  your  time,  money,  and  skill,  in  an  enterprise  which  will  accommodate 
the  public  necessities,  we  will  grant  to  you,  for  a  limited  period,  or  in  perpetuity,  privi- 
leges that  will  justify  the  expenditure  of  your  money,  and  the  employment  of  your 
time  and  skill.'  Such  a  grant  is  a  contract,  with  mutual  considerations,  and  justice 
and  good  policy  alike  require  that  the  protection  of  the  law  should  be  assured  to  it. 

"  It  is  argued,  as  a  reason  why  courts  should  not  be  rigid  in  enforcing  the  contracts 
made  bv  States,  that  legislative  bodies  are  often  overreached  by  designing  men,  and 
dispose  of  franchises  with  great  recklessness. 

•'  If  the  knowledge  that  a  contract  made  by  a  State  with  individuals  is  equally  pro- 
tected from  invasion  as  a  contract  made  between  natural  persons,  does  not  awaken 
watchfulness  and  care  on  the  part  of  law-makers,  it  is  difficult  to  perceive  what  would. 
The  corrective  to  improvident  legislation  is  not  in  the  courts,  but  is  to  be  found 
elsewhere." 

The  decree  of  the  Court  of  Appeals  of  New  York  against  the  corporation  claiming 
an  exclusive  privilege  under  the  earlier  charter  w^as  therefore  reversed. 

The  dissent  in  this  case  w^as  based  on  the  view  that,  to  be  effectual  in  conferring 
an  exclusive  privilege  of  this  nature,  the  intention  must  be  clearly  expressed  in  the 
letter  of  the  statute,  and  that  the  charter  in  question  did  not  contain  a  sufficiently 
explicit  statement  of  such  intention. 

In  the  case  of  The  Delaware  Railroad  Tax,  18  Wall.  206  (1873),  it  was  con- 
tended that  a  stipulation  in  a  charter  consolidating  two  railroad  companies,  as  to  the 
rate  of  tax  to  be  paid  annually  into  the  treasury  of  the  State  by  the  new  company, 
was  a  contract  limiting  the  power  of  the  State  in  the  matter  of  taxing  property 
of  such  company.  Mr.  Justice  Field,  delivering  the  opinion  of  the  court,  uses  this 
language :  — 

"  That  the  charter  of  a  ppivate  corporation  is  a  contract  between  the  State  and  the 
corporators,  and  within  the  provision  of  the  Constitution  prohibiting  legislation  im- 
pairing the  obligation  of  contracts,  has  been  the  settled  law  of  this  court  since  the 
decision  in  the  Dartmouth  College  Case,  4  Wheat.  318.  Nor  does  it  make  any  differ- 
ence that  the  uses  of  the  corporation  are  public,  if  the  corporation  itself  be  private. 
The  contract  is  equally  protected  from  legislative  interference,  whether  the  public  be 
interested  in  the  exercise  of  its  franchise  or  the  charter  be  granted  for  the  sole  benefit 
of  its  corporators.  This  doctrine  is  not  controverted  by  any  one ;  it  is  the  established 
law ;  and  the  question  in  all  cases,  when  it  becomes  necessary  to  apply  it,  is  whether 
the  particular  legislative  interference  alleged  does  in  fact  impair  the  obligation  of  the 
contract ;  for  it  is  not  every  kind  of  legislative  interference  with  the  powers,  action, 
and  property  of  the  corporation  which  will  have  that  result. 

"  It  has  also  been  repeatedly  held  by  this  court  that  the  legislature  of  a  State  may 
exempt  particular  parcels  of  property  or  the  property  of  particular  persons  or  corpo- 


SECT.  I.]  PENNSYLVANIA  COLLEGE  CASES.  1013 

rations  from  taxation,  either  for  a  specified  period  or  perpetually,  or  may  limit  the 
amount  or  rate  of  taxation  to  which  such  property  shall  be  subjected.  And  when 
such  immunity  is  conferred,  or  such  limitation  is  prescribed  by  the  charter  of  a  corpo- 
ration, it  becomes  a  part  of  the  contract,  and  is  equally  inviolate  with  its  other  stipu- 
lations. But  before  any  such  exemption  or  limitation  can  be  admitted,  the  intent  of 
the  legislature  to  confer  the  immunity  or  prescribe  the  limitation  must  be  clear  be- 
yond a  reasonable  doubt.  All  public  grants  are  strictly  construed.  Nothing  can  be 
taken  against  the  State  by  presumption  or  inference.  The  established  rule  of  con- 
struction in  such  Ciises  is  that  rights,  privileges,  and  immunities  not  expre.ssly  granted 
are  reserved.  There  is  no  safety  to  the  public  interests  in  any  other  rule.  And  with 
special  force  does  the  principle  upon  whicli  the  rule  rests  apply  when  the  right, 
privilege,  or  immunity  claimed  calls  for  any  abridgment  of  the  powers  of  the  govern- 
ment, or  any  restraint  upon  their  exercise.  The  power  of  taxation  is  an  attribute  of 
sovereignty,  and  is  essential  to  every  independent  government.  As  this  court  has 
said,  the  wiiole  community  is  interested  in  retaining  it  undiminished,  and  has  '  a  riirht 
to  insist  tiiat  its  abandonment  ought  not  to  be  presumed  in  a  case  in  which  the  delib- 
erate purpose  of  the  State  to  abandon  it  does  not  appear.'  Providence  Bank  i:  Billings, 
4  Pet.  561.  If  the  point  were  not  already  adjudged  it  would  admit  of  grave  consid- 
eration, whether  the  legislature  of  a  State  can  surrender  this  power,  and  make  its 
action  in  this  respect  binding  upon  its  successors  any  more  than  it  can  surrender  its 
police  power  or  its  right  of  eminent  domain.  But  the  point  being  adjudged,  the  sur- 
render when  claimed  must  be  shown  by  clear,  unambiguous  language,  which  will 
admit  of  no  reasonable  construction  consistent  with  the  reservation  of  the  power.  If 
a  doubt  arise  as  to  the  intent  of  the  legislature,  that  doubt  must  be  solved  in  favor  of 
the  State." 

In  Pennsylvania  College  Cases,  13  Wall.  190  (1871),  it  appeared  that  a  charter 
was  granted  by  the  State  of  Pennsylvania  to  the  trustees  of  Jefferson  College,  iu 
which  there  was  a  provision  that  the  constitution  of  the  college  "shall  not  be  altered 
or  alterable  bv  any  ordinance  or  law  of  the  said  trustees,  nor  in  any  other  manner  than 
by  an  act  of  the  legislature  of  the  Commonwealth."  Subsequently,  a  State  statute  was 
passed,  uniting  this  college  with  another  under  the  name  of  the  Washington  and  Jef- 
ferson College,  and  the  question  was  made  as  to  the  validity  of  the  act  of  union.  Mr. 
Justice  Clifford,  delivering  the  opinion  of  the  court,  used  this  language:  — 

"  Corporate  franchises  granted  to  private  corporations,  if  duly  accej^ted  l)y  the  cor- 
porators, partake  of  the  nature  of  legal  estates,  as  the  grant  under  such  circumstances 
becomes  a  contract  within  the  protection  of  that  clause  of  the  Constitution  which 
ordains  that  no  State  shall  pass  any  law  impairing  the  obligation  of  contracts.  Dart- 
mouth College  V.  Woodward,  4  Wheat.  700.  Charters  of  private  corporations  are 
reo-arded  as  executed  contracts  between  the  government  and  the  corporators,  and  the 
rule  is  well  settled  that  the  legislature  cannot  repeal,  impair,  or  alter  such  a  charter 
against  the  consent  or  without  the  default  of  the  corporation  judicially  ascertained 
and  declared.  Fletcher  v.  Peck,  6  Cranch,  136;  Terrett  r.  Taylor,  9  id.  51.  Uf 
course  these  remarks  apply  only  to  acts  of  incorporation  which  do  not  contain  any 
reservations  or  provisions  annexing  conditions  to  the  charter  modifying  and  limiting 
the  nature  of  the  contract.  Cases  often  arise  where  the  legislature,  in  granting  an 
act  of  incorporation  for  a  private  purpose,  either  make  the  duration  of  the  charter 
conditional  or  reserve  to  the  State  the  power  to  alter,  modify,  or  repeal  the  same  at 
pleasure.  Where  such  a  provision  is  incorporated  in  the  charter  it  is  clear  that  it 
qualifies  the  grant,  and  that  the  subsequent  exercise  of  that  reserved  power  cannot  be 
regarded  as  an  act  within  the  prohibition  of  the  Constitution.  Such  a  power  also, 
that  is,  the  power  to  alter,  modify,  or  repeal  an  act  of  incorporation,  is  frequently 
reserved  to  the  State  by  a  general  law  applicable  to  all  acts  of  incorporation,  or  to 
certain  classes  of  the  same,  as  the  case  may  be,  in  which  case  it  is  equally  clear  that 
the  power  may  be  exercised  whenever  it  appears  that  the  act  of  incorporation  is  one 
which  falls  within  the  reservation,  and  that  the  charter  was  granted  subsequent  to  the 
passage  of  the  general  law,  even  though  the  charter  contains  no  such  condition  nor 
anv  allusion  to  such  a  reservation.     Dartmouth  College  i'.  Woodward,  4  Wheat.  708; 


1014      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

BEER   COMPANY   v.    MASSACHUSETTS. 

97  United  States,  25.     1877. 

[This  proceeding  was  commenced  in  the  State  Court  of  Massachu- 
setts for  a  forfeiture  of  certain  malt  liquors  belonging  to  the  Boston 
Beer  Company  for  violation  of  the  provisions  of  the  prohibitory 
liquor  law.  The  decision  of  the  lower  State  court  was  that  the 
liquors  were  subject  to  forfeiture,  and  this  decision  was  affirmed  by 
the  Supreme  Judicial  Court.  The  company  brings  the  case  to  this 
court  on  writ  of  error.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  question  raised  in  this  case  is,  whether  the  charter  of  the 
plaintiff,  which  was  granted  in  1828,  contains  any  contract  the 
obligation  of  which  was  impaired  by  the  prohibitory  liquor  law  of 
Massachusetts,  passed  in  1869,  as  applied  to  the  liquor  in  question 
in  this  suit. 

[The  question  whether  the  legislature  had  not,  in  granting  the 
charter  to  the  Beer  Company,  reserved  the  right  to  amend  or  repeal 
the  same  at  its  discretion,  is  considered,  but  the  point  is  not  of 
importance  in  this  connection.] 

The  plaintiff  in  error  was  incorporated  "  for  the  purpose  of  manu- 
facturing malt  liquors  in  all  their  varieties,"  it  is  true;  and  the 
right  to  manufacture,  undoubtedly,  as  the  plaintiff's  counsel  con- 
tends, included  the  incidental  right  to  dispose  of  the  liquors  manu- 
factured. But  although  this  right  or  capacity  was  thus  granted  in 
the  most  unqualified  form,  it  cannot  be  construed  as  conferring  any 
greater  or  more  sacred  right  than  any  citizen  had  to  manufacture 

General  Hospital  v.  Insurance  Co.,  4  Gray,  227;  Suydam  i'.  Moore,  8  Barb.  358; 
Angel  &  Ames  on  Corporations  (9th  ed.),  §  767,  p.  787.  Reservations  in  such  a 
charter,  it  is  admitted,  may  be  made,  and  it  is  also  conceded  that  where  they  exist 
the  exercise  of  the  power  reserved  by  a  subsequent  legislature  does  not  impair  the 
obligation  of  the  contract  created  by  the  original  act  of  incorporation.  Subsequent 
legislation  altering  or  modifying  tiie  provisions  of  such  a  charter,  where  there  is  no 
such  reservation,  is  certaiuly  unauthorized  if  it  Is  prejudicial  to  tiie  rights  of  the  cor- 
por.itors,  and  was  passed  without  their  assent ;  but  the  converse  of  the  proposition  is 
also  true,  that  if  the  new  provisions  altering  and  modifying  the  charter  were  passed 
with  the  assent  of  the  corporation  and  tliey  were  duly  accepted  by  a  corporate  vote  as 
amendments  to  the  original  charter,  they  cannot  be  regarded  as  impairing  the  obliga- 
tion of  the  contract  created  by  the  original  charter.  Private  charters  or  such  as  are 
granted  for  the  private  benefit  of  the  corporators  are  held  to  be  contracts  because 
they  are  based  for  their  consideration  on  the  liabilities  and  duties  which  the  corpora- 
tors assume  by  accepting  the  terms  therein  specified,  and  the  grant  of  the  franchise 
on  that  account  can  no  more  be  resumed  by  the  legislature  or  its  benefits  diminished 
or  impaired  without  the  assent  of  the  corporators  than  any  other  grant  of  property 
or  legal  estate,  unless  the  right  to  do  so  is  reserved  in  the  act  of  incorporation  or  in 
some  general  law  of  thei-  State  which  was  in  operation  at  the  time  the  charter  was 
granted." 


SECT.  I.]  BEER   COMPANY    V.    MASSACHUSETTS.  1015 

malt  liquor;  nor  as  exempting  the  corporation  from  any  control 
therein  to  which  a  citizen  would  be  subject,  if  the  interests  of  the 
comiuimity  should  require  it.  If  the  public  safety  or  the  public 
morals  require  the  discontinuance  of  any  manufacture  or  traffic,  the 
hand  of  the  legislature  cannot  be  stayed  from  providing  for  its  dis- 
continuance, by  any  incidental  inconvenience  which  individuals  or 
corporations  may  suffer.  All  rights  are  held  subject  to  the  police 
power  of  the  State. 

We  do  not  mean  to  say  that  property  actually  in  existence,  and 
in  v»rhich  the  right  of  the  owner  has  become  vested,  may  be  taken 
for  the  public  good  without  due  compensation.  But  we  infer  that 
the  liquor  in  this  case,  as  in  the  case  of  Bartemeyer  v.  Iowa  (18 
Wall.  129),  was  not  in  existence  when  the  liquor  law  of  Massachu- 
setts was  passed.  Had  the  plaintiff  in  error  relied  on  the  existence 
of  the  property  prior  to  the  law,  it  behooved  it  to  show  that  fact. 
But  no  such  fact  is  shown,  and  no  such  point  is  taken.  The  plain- 
tiff in  error  boldly  takes  the  ground  that,  being  a  corporation,  it 
has  a  right,  by  contract,  to  manufacture  and  sell  beer  forever,  not- 
withstanding and  in  spite  of  any  exigencies  which  may  occur  in  the 
morals  or  the  health  of  the  community  requiring  such  manufacture 
to  cease.  '  We  do  not  so  understand  the  rights  of  the  plaintiff.  The 
legislature  had  no  power  to  confer  any  such  rights. 

Whatever  differences  of  opinion  may  exist  as  to  the  extent  and 
boundaries  of  the  police  power,  and  however  difficult  it  may  be  to 
render  a  satisfactory  definition  of  it,  there  seems  to  be  no  doubt 
that  it  does  extend  to  the  protection  of  the  lives,  health,  and 
property  of  the  citizens,  and  to  the  preservation  of  good  order  and 
the  public  morals.  The  legislature  cannot,  by  any  contract,  divest 
itself  of  the  power  to  provide  for  these  objects.  They  belong 
emphatically  to  that  class  of  objects  which  demand  the  application 
of  the  maxim,  salus  populi  supi'ema  lex  ;  and  they  are  to  be  attained 
and  provided  for  by  such  appropriate  means  as  the  legislative  discre- 
tion may  devise.  That  discretion  can  no  more  be  bargained  away 
than  the  power  itself.     Boyd  v.  Alabama,  94  U.  S.  645. 

Since  we  have  already  held,  in  the  case  of  Bartemeyer  v.  Iowa, 
that  as  a  measure  of  police  regulation,  looking  to  the  preservation 
of  public  morals,  a  State  law  prohibiting  the  manufacture  and  sale 
of  intoxicating  liquors  is  not  repugnant  to  any  clause  of  the  Consti- 
tution of  the  United  States,  we  see  nothing  in  the  present  case  that 
can  afford  any  sufficient  ground  for  disturbing  the  decision  of  the 
Supreme  Court  of  Massachusetts. 

Of  course,  we  do  not  mean  to  lay  down  any  rule  at  variance  with 
what  this  court  has  decided  with  regard  to  the  paramount  authority 
of  the  Constitution  and  laws  of  the  United  States,  relating  to  the 
regulatioia  of  commerce  with  foreign  nations  and  among  tlie  several 
States,  or  otherwise.  Brown  v.  Maryland,  12  Wheat.  419;  License 
Cases,  5  How.  504;  Passenger  Cases,  7  id.  283;  Henderson  v.  Mayor 


1016      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

of  New  York,  92  U.  S.  259;  Cby  Lung  v.  Freeman,  id.  275;  Rail- 
road Company  v.  Husen,  95  id,  465.  That  question  does  not  arise 
in  this  case.  Judgment  affirmed.^ 

1  In  Douglas  v.  Kentucky,  168  U.  S.  488  (1897),  the  question  arose  whether  a 
provision  in  the  Constitation  of  Kentucky,  adopted  in  1891,  prohibiting  lotteries,  was 
applicable  to  a  lottery  enterprise  carried  on  under  a  franchise  previously  granted  to 
operate  a  lottery  in  the  State.  This  franchise  had  been  acquired  by  one  Stewart,  and 
after  his  death  passed  to  the  plaintiff  in  error,  who  was  defendant  in  the  lower  court. 
The  action  was  brought  in  the  State  court  to  prevent  the  exercise  by  said  defendant 
of  such  lottery  franchise.  From  a  decision  of  tiie  State  Court  of  Appeals  against 
defendant,  the  case  was  brought  to  this  court  by  writ  of  error.  Mr.  Justice  Harlan, 
delivering  the  opinion  of  the  court,  used  this  language  :  — 

"  The  Federal  question  presented  for  our  determination  arises  upon  the  claim  of 
the  plaintiff  in  error  —  whicii  was  denied  by  the  final  judgment  of  tlie  liighest  court 
of  Kentucky  —  that  the  agreement  between  the  city  of  Frankfort  and  E.  S.  Stewart, 
by  which  the  latter  became  the  owner  of  the  lottery  scheme  devised  by  that  city, 
under  the  authority  of  law,  was  a  contract  the  obligation  of  which  the  State  was 
forbidden  by  the  Constitution  of  the  United  States  to  impair  either  by  legislative 
enactment  or  by  constitutional  provision. 

"  If  this  interpretation  of  the  Federal  Constitution  be  correct,  it  will  follow  that 
any  provision  in  the  constitution  or  in  the  statutes  of  Kentucky  forbidding  lotteries 
and  gift  enterprises  in  that  Commonwealth,  and  revoking  the  lottery  privileges  or 
charters  theretofore  granted,  is  null  and  void  as  to  the  defendant  Douglas,  who  suc- 
ceeded to  the  rights  acquired  by  Stewart  under  the  agreement  of  1875  with  the  city  of 
Frankfort.  This  necessarily  results  from  the  declaration  that  the  Constitution  of  the 
United  States  is  the  supreme  law  of  the  land,  anything  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding. 

"  This  court  had  occasion  many  years  ago  to  say  that  the  common  forms  of  gam- 
bling were  comparatively  innocuous  when  placed  in  contrast  with  the  widespread  pes- 
tilence of  lotteries ;  that  tlie  former  were  confined  to  a  few  persons  and  places,  while 
the  latter  infested  the  whole  community,  entered  every  dwelling,  reached  every  class, 
preyed  upon  the  hard  earnings  of  the  poor,  and  plundered  the  ignorant  and  simple. 
Phalen  v.  Virginia,  8  How.  163. 

"  Is  a  State  forbidden  by  the  supreme  law  of  the  land  from  protecting  its  people  at 
all  times  from  practices  which  it  conceives  to  be  attended  by  such  ruinous  results  ? 
Can  the  legislature  of  a  State  contract  away  its  power  to  establish  such  regulations  as 
are  reasonably  necessary  from  time  to  time  to  protect  the  public  morals  against  tlie 
evils  of  lottery  1 

"  These  questions  arose  and  were  determined,  upon  much  consideration,  in  Stone  v. 
Mississippi.  101  U.  S.  814,  819,  821. 

"  It  will  be  seen  from  the  report  of  that  case  that  the  legislature  of  Mississippi 
chartered  the  Mississippi  Agricultural,  Educational,  and  Manufacturing  Aid  Society, 
with  authority  to  raise  money  by  way  of  lottery ;  and  in  consideration  thereof  the 
society  paid  $,5000  into  the  treasury  of  the  State,  and  agreed  to  pay,  and  did  pay,  an 
annual  tax  of  $1000,  together  with  one-half  of  one  per  cent,  on  the  amount  of  receipts 
derived  from  the  sale  of  certificates.  While  the  society's  charter  was  in  force,  the 
State  adopted  a  new  constitution,  declaring  that  the  legislature  should  never  authorize 
a  lottery,  nor  should  the  sale  of  lottery  tickets  be  allowed,  nor  any  battery  theretofore 
authorized  be  permitted  to  be  drawn  or  tickets  therein  be  sold.  This  was  followed  by 
the  passage  of  an  act  prohibiting  lotteries,  and  making  it  unlawful  to  conduct  one  in 
the  State.  The  question  was  then  raised  by  an  information  in  the  nature  of  qnn  rear- 
ranto,  whether  the  lottery  privilege  given  by  the  society's  charter  could  be  withdrawn 
or  impaired  by  the  State  legislation  —  that  society  having,  as  was  conceded,  complied 
with  all  the  conditions  upon  which  its  charter  was  granted.  The  Supreme  ("!ourt  of 
Mississippi  held  that  the  State  could  withdraw  the  lottery  ])rivi]ege  which  it  had 
granted.  And  that  conclusion  was  questioned  upon  writ  of  error  sued  out  from 
this  court. 


SECT.  I.]       NEW   ORLEANS   GAS   CO.    V.   LOUISIANA   LIGHT   CO.  1017 

"  Chief  Justice  Waite,  who  delivered  the  unaiiimons  judgment  of  the  court  iii  tliat 
case,  said  :  '  The  question  is  therefore  directly  presented,  whetlier,  in  view  of  these 
facts,  the  legislature  of  a  State  can.  hy  the  charter  of  a  lottery  company,  defeat  the 
will  of  the  people,  authoritatively  expressed,  iu  relation  to  the  furtlier  continuance  of 
such  business  iu  their  midst.  We  think  it  cannot.  No  legislature  can  bargain  away 
the  public  health  or  the  public  morals.  Tlie  people  themselves  cannot  do  it,  much 
less  their  servants.  The  supervision  of  both  these  subjects  of  governmental  power  i.s 
continuing  in  its  nature,  and  they  are  to  be  dealt  with  as  the  special  exigencies  <if 
the  moment  may  require.  Government  is  organized  with  a  view  to  their  preserva- 
tion, and  cannot  divest  itself  of  the  power  to  provide  for  them.  For  this  purpose  the 
largest  legislative  discretion  is  allowed,  and  the  discretion  cannot  be  parted  with  any 
more  than  the  power  itself.'  Again,  referring  to  lotteries  :  '  They  disturb  the  checks 
and  balances  of  a  well-ordered  comnmnity.  S(jciety  built  on  such  a  foundation  would 
almost  of  necessity  bring  forth  a  population  of  speculators  anjl  gamblers,  living  on  the 
expectation  of  what,  "  by  the  casting  of  lots,  or  by  lot,  chance,  or  otherwise,"  might 
be  ••  awarded  "  to  them  from  the  accumulation  of  others.  Certainly  the  right  to  sup- 
press them  is  governmental,  to  be  exercised  at  all  times  by  tiiose  in  power,  at  their 
discretion.  Any  one,  therefore,  who  accepts  a  lottery  chnrter  does  so  with  the  implied 
understanding  that  the  people,  in  their  sovereign  capacity  and  through  their  properly 
constituted  agencies,  may  resume  it  at  any  time  when  the  public  good  shall  require, 
whether  it  be  paid  for  or  not.  All  that  one  can  get  by  such  a  charter  is  a  suspension 
of  certain  governmental  rights  in  liis  favor,  subject  to  withdrawal  at  will.  lie  has  in 
legal  effect  nothing  more  than  a  license  to  enjoy  the  privilege  on  the  terms  named  for 
the  specified  time,  unless  it  be  sooner  abrogated  by  the  sovereign  power  of  the  State. 
It  is  a  permit,  good  as  against  existing  laws,  but  subject  to  future  legislative  and  con- 
stitutional control  or  witiidrawal.' " 

Defendant  further  contended  that  he  acquired  the  lottery  franchise  after  it  had  been 
held  by  the  court  of  last  resort  in  Kentucky  that  such  a  francliise  was  irrevocnhle,  and 
therefore  that  he  had  a  vested  right  under  the  decisions  of  the  State  court;  but  on  this 
point  the  following  language  is  used  :  — 

"  The  doctrine  that  this  court  possesses  paramount  authority  when  reviewing  the 
final  judgment  of  a  State  court  upholding  a  State  enactment  alleged  to  be  in  violation 
of  the  contract  clause  of  the  Constitution,  to  determine  for  itself  the  existence  or  non- 
existence of  the  contract  set  up,  and  whether  its  obligati(jn  has  been  impaired  by  the 
State  enactment,  has  been  affirmed  in  numerous  other  cases.  Ohio  Life  Ins.  Co.  v. 
Debolt,  16  How.  416,  452;  Wright  v.  Nagle,  101  U.  S.  791,  794;  Louisville  Gas  Co.  »•. 
Citizens'  Gas  Co.,  115  U.  S.  683,  697 ;  Vicksburg,  Shreveport,  etc.  Railroad  v.  Dennis, 
116  U.  S.  665,  667;  N.  0.  Waterworks  Co.  v.  Louisiana  Sugar  Co.,  125  U.  S.  18,  36; 
Bryan  v.  Board  of  Education,  151  U.  S.  639,  650 ;  Mobile  &  Ohio  Railroad  v.  Tennessee, 
153  U.  S.  486,  493 ;  Bacon  v.  Texas,  163  U.  S.  207,  219. 

"  In  view'  of  these  adjudications  it  is  clear  that  we  are  not  required  to  accept  as 
authoritative  in  this  case  the  decision  of  the  Court  of  Appeals  of  Kentucky  in  Gregory 
V.  Shelby  College  Lottery  Trustees  [2  Met  (Ky.)  589],  above  cited,  to  the  effect  that 
a  legislative  revocation  of  a  lottery  grant  is  a  violation  of  the  Constitution  of  the 
United  States  so  far  as  such  revocation  affects  rights  acquired  on  the  faith  of  the 
privilege  conferred  by  the  grant,  and  the  exercise  of  which  involves  the  continuance 
of  that  privilege  for  such  time  as  may  be  necessary  for  the  full  enjoyment  of  those 
rights." 

In  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650  (1885),  the 
contention  was  as  to  whether  the  plaintiff  in  error  who  brought  action  in  the  Circuit 
Court  of  the  United  States  for  the  Eastern  District  of  Louisiana  w.is  entitled  to  pro- 
tection under  a  grant  of  the  exclusive  privilege  of  manufacturing  and  distributing  gas 
in  tlie  city  of  New  Orleans  as  against  the  defendant  claiming  under  a  subsequent  grant 
of  a  similar  privilege.  The  action  of  the  lower  court  dismissing  plaintiff's  bill  was 
reversed  on  appeal  to  this  court,  and  Mr.  Justice  Harlan,  delivering  the  opinion  of 
the  court,  used  this  language  :  — 

"The  principle  upon  which  the  decisions  in  Beer  Co.  v.  Massachusetts  [97  U.  S.  25]. 


1018      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

Fertilizing  Co.  v.  Hyde  Park  [97  U.  S.  659],  Stone  v.  Mississippi  [1 01  U.  S.  814],  and 
Butchers'  Union  Co.  v.  Crescent  City  Live-Stock  Landing  Co.  [Ill  U.  S.  746],  rest,  is, 
that  one  leuji-slature  cannot  so  limit  the  discretion  of  its  successors,  that  they  may  not 
enact  such  laws  as  are  necessary  to  protect  the  pulilic  health,  or  the  public  morals. 
That  principle,  it  may  be  observed,  was  announced  with  reference  to  particular  kinds 
of  private  business  which,  in  wluitever  manner  conducted,  were  detrimental  to  the 
public  healtli  or  tlie  public  morals.  It  is  fairly  tlie  result  of  those  cases,  that  statutory 
authority  given  by  the  State  to  corporations  or  individuals  to  engage  in  a  particular 
private  business  attended  by  such  results,  while  it  protects  them  for  the  time  against 
public  prosecution,  does  not  constitute  a  contract  preventing  the  withdrawal  of  such 
authority,  or  the  granting  of  it  to  otiiers. 

"  The  present  case  involves  no  such  considerations.  We  have  seen,  the  manufac- 
ture of  gas,  and  its  distribution  for  public  and  private  use  by  means  of  pipes  laid, 
under  legislative  authoritv,  in  the  streets  and  ways  of  a  city,  is  not  an  ordinary  busi- 
ness in  which  every  one  may  engage,  but  is  a  franchise  belonging  to  the  government, 
to  be  granted,  for  the  accomplishment  of  public  objects,  to  whomsoever,  and  upon 
what  terms,  it  pleases.  It  is  a  business  of  a  public  nature,  and  meets  a  public  nece.s- 
sity  for  which  the  State  may  make  provision.  It  is  one  which,  so  far  from  affecting 
the  public  injuriously,  has  become  one  of  the  most  important  agencies  of  civilization, 
for  the  promotion  of  the  public  convenience  and  the  public  safety. 

"  It  is  to  be  presumed  that  the  legislature  of  Louisiana,  wheu  granting  the  exclu- 
sive privileges  in  question,  deemed  it  unwise  to  burden  the  public  with  the  cost  of 
erectiiio-  and  maintaining  gas-works  sufficient  to  meet  tiie  necessities  of  the  municipal 
government  and  the  people  of  New  Orleans,  and  that  the  public  would  be  best  pro- 
tected, as  well  as  best  served,  through  a  single  corporation  invested  with  the  power, 
and  charged  with  the  duty,  of  supplying  gas  of  the  requisite  quality  and  in  such  ((uau- 
tity  as  the  public  needs  demanded.  In  order  to  accomplish  what,  in  its  judgment,  the 
public  welfare  required,  the  legislature  deemed  it  necessary  that  some  inducement 
lie  offered  to  private  capitalists  to  undertake,  at  their  own  cost,  this  work.  That 
inilucement  was  furnished  in  the  grant  of  an  exclusive  privilege  of  manufacturing  and 
distributing  gas  bv  means  of  pipes  laid  in  the  streets  of  New  Orleans  for  a  fixed  period, 
during  wliicli  the  company  would  be  protected  against  competition  from  corporations 
or  companies  engaged  in  like  business.  Without  that  grant  it  was  inevitable  either 
th:it  the  cost  of  supplying  the  city  and  its  people  would  have  been  made,  in  some  form, 
a  charge  upon  the  public,  or  the  public  would  liave  been  deprived  of  the  security  in 
person,  property,  and  business  which  comes  from  well-lighted  streets. 

"  With  reference  to  the  contract  in  this  case,  it  may  be  said  that  it  is  not,  in  any 
legal  sense,  to  the  prejudice  of  the  public  health  or  the  public  safety.  It  is  none  the 
less  a  contract  because  the  manufacture  and  distribution  of  gas,  when  not  subjected 
to  proper  supervision,  may  possibly  work  injury  to  the  public  ;  for  the  grant  of  exclu- 
sive privileges  to  the  plaintiff  does  not  restrict  the  power  of  the  i>tate,  or  of  the  muni- 
cipal government  of  New  Orleans  acting  under  authority  for  that  purpose,  to  establish 
and  enforce  regulations  which  are  not  inconsistent  with  the  essential  rights  granted  by 
plaintiff's  charter,  which  may  be  necessary  for  the  protection  of  the  public  against  in- 
jury, whetiier  arising  from  the  want  of  due  care  in  the  conduct  of  its  business,  or  from 
an  improper  use  of  the  streets  in  laying  gas  pipes,  or  from  the  failure  of  the  grantee 
to  furnish  gas  of  the  required  quality  and  amount.  The  constitutional  prohibition 
upon  State  laws  impairing  the  obligation  of  contracts  does  not  restrict  the  power  of 
the  State  to  protect  the  public  health,  the  public  morals,  or  the  public  safety,  as  the 
one  or  the  other  may  be  involved  in  the  execution  of  such  contracts.  Rights  and 
privileges  arising  from  contracts  with  a  State  are  subject  to  regulations  for  the  pro- 
tection of  the  public  health,  the  public  morals,  and  the  public  safety,  in  the  same 
sense,  and  to  the  same  extent,  as  are  all  contracts  and  all  property,  whether  owned  by 
natural  persons  or  corporations. 

"  Whatever  therefore  in  the  manufacture  or  distribution  of  gas  in  the  city  of  New 
Orleans  proves  to  be  injurious  to  the  public  health,  the  public  comfort,  or  the  public 


SECT.  I.j        GEORGIA   RAILROAD    &   BANKING    CO.    V.    SMITH.  1019 

GEORGIA  RAILROAD  &  BANKING  COMPANY  v.  S:\nTH. 

128  United  States,  174.     1888. 

[Plaintiff  in  error  brought  an  action  in  the  State  court  of  Georgia 
to  restrain  the  State  Board  of  Railroad  Commissioners  from  regulat- 
ing the  rates  of  freight  and  passenger  tariff  on  its  road,  contending 
that  ifl  its  charter  granted  in  1835  it  was  provided  that  the  charges  of 
transportation  or  conveyance  should  not  exceed  fifty  cents  per  hun- 
dred pounds  on  heavy  articles,  and  ten  cents  per  cubic  foot  on  arti- 
cles of  measurement  for  every  one  hundred  miles,  and  live  cents 
per  mile  for  passengers ;  and  that  this  stipulation  constituted  a  con- 
tract which  would  be  violated  by  the  enforcement  against  the  com- 
pany of  regulations  fixing  a  lower  rate.    A  demurrer  to  the  bill  having 

safety,  may,  notwithstanding  the  exchisive  grant  to  plaintiff,  be  prohibited  by  legisla- 
tion, or  by  municipal  ordinance  passed  under  legislative  authority.  It  cannot  be  said 
with  propriety,  that  to  sustain  that  grant  is  to  obstruct  the  State  in  the  exercise  of 
her  pow-er  to  provide  for  the  jjulilic  protection,  htalth,  and  safety.  'J'he  article  in  tlie 
State  constitution  of  1879  in  relation  to  monopolies  is  not  in  any  legal  sense  an  exer- 
cise of  the  police  power  for  the  preservation  of  the  pulilic  health,  or  the  promotion  of 
the  public  safety ;  for  the  exclusiveness  of  a  grant  has  no  relation  whatever  to  the 
public  health  or  to  the  public  safety.  Tiiese  considerations  depend  upon  the  nature 
of  tiie  business  or  duty  to  which  the  grant  relates,  and  not  at  all  upon  the  inqairy 
whetlier  a  franchise  is  exercised  by  one  rather  than  by  many.  The  monopoly  clause 
only  evinces  a  purpose  to  reverse  the  policy,  previously  pursued,  of  granting  to  pri- 
vate corporations  franchises  accompanied  by  exclusive  privileges,  as  a  means  of 
accomplishing  puMic  objects.  That  change  of  policy,  although  manifested  by  con.sti- 
tntional  enactment,  cannot  affect  contracts  which,  when  entered  into,  were  within  the 
power  of  the  State  to  make,  and  which,  consecjueutly,  were  protected  against  impair- 
ment, in  respect  of  their  obligation,  by  the  Constitution  of  the  United  States.  A  State 
can  no  more  impair  the  obligation  of  a  contract  by  her  organic  law  than  by  legislative 
enactment;  for  her  constitution  is  a  law  within  the  meaning  of  the  contract  clause  of 
the  National  Constitution.     Kailroad  Co.  i".  McClure,  10  Wall.  511  ;  Ohio  Life  Ins. 

6  T.  Co.  V.  Debolt,  16  How.  416,  429 ;  Sedgwick's  Stat.  &  Const.  Law,  637.  And  the 
obligation  of  her  contracts  is  as  fully  protected  by  that  instrument  against  impairment 
by  legislation  as  are  contracts  between  individuals  exclusively.    New  .Jersey  v.  Wilson, 

7  Cranch,  164  ;  Providence  Bank  v.  Billings,  4  Pet.  514 ;  Green  i;.  Biddle,  8  Wheat.  1  ; 
Woodruff  V.  Trapnall,  10  How.  190  ;  Wolff  v.  New  Orleans,  103  U.  S.  358. 

"If,  in  the  judgment  of  the  State,  the  public  interests  will  be  best  subserved  by  an 
abandonment  of  the  policy  of  granting  exclusive  privileges  to  corporations,  other  than 
railroad  companies,  in  consideration  of  services  to  be  performed  by  them  for  the  pub- 
lic, the  way  is  open  for  the  accomplishment  of  that  result,  with  respect  to  corporations 
whose  contracts  with  the  State  are  unaffected  by  that  change  in  her  organic  law.  The 
rights  and  franchises  which  have  become  vested  upon  the  faith  of  such  contracts  can 
be  taken  by  the  public,  upon  just  compensation  to  the  company,  under  the  State's 
power  of  eminent  domain.  West  River  Bridge  Co.  v.  Dix  [6  How.  507] ;  Kichmond, 
etc.  Kailroad  Co.  v.  Louisa  Railro.ad  Co.,  13  How.  71,  83;  Boston  Water-Power  Co. 
i;.  Boston  &  Worcester  Railroad,  23  Pick.  360,  393 ;  Boston  &  Lowell  Railroad  Co.  v. 
Salem  &  Lowell  Railroad  Co.,  2  Gray,  1,  35.  In  that  way  th>s  jdigbted  faith  of  tlie 
public  will  be  kept  with  those  who  have  made  large  investments  upon  the  assurance 
by  the  State  that  the  contract  with  them  will  be  perf<jrmed." 


1020  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

been  sustained,  the  decree  was  afi&rmed  in  the  Supreme  Court  of  the 
State,  and  the  case  was  brought  to  this  court  by  writ  of  error.] 
Mr.  Justice  Field  deliv'ered  the  opinion  of  the  court. 

It  has  been  adjudged  by  this  court  in  numerous  instances  that  the 
legislature  of  a  State  has  the  power  to  prescribe  the  charges  of  a 
railroad  company  for  the  carriage  of  persons  and  merchandise  within 
its  limits,  in  the  absence  of  any  provision  in  the  charter  of  the  com- 
pany constituting  a  contract  vesting  in  it  authority  over  those  matters, 
subject  to  the  limitation  that  the  carriage  is  not  required  wfthout 
reward,  or  upon  conditions  amounting  to  the  taking  of  property  for 
public  use  without  just  compensation  ;  and  that  what  is  done  does 
not  amount  to  a  regulation  of  foreign  or  interstate  commerce.  Stone 
V.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.  307,  325,  331 ;  Dow  v. 
Beidelman,  125  U.  S.  680.  The  incorporation  of  the  company,  by 
which  numerous  parties  are  permitted  to  act  as  a  single  body  for  the 
purposes  of  its  creation,  or  as  Chief  Justice  Marshall  expresses  it,  by 
which  "the  character  and  properties  of  individuality  "  are  bestowed 
"on  a  collective  and  changing  body  of  men,"  Providence  Bank  v. 
Billings,  4  Pet.  514,  562 ;  the  grant  to  it  of  special  privileges  to  carry 
out  the  object  of  its  incorporation,  particularly  the  authority  to  exer- 
cise the  State's  right  of  eminent  domain  that  it  may  appropriate 
needed  property,  — a  right  which  can  be  exercised  only  for  public 
purposes ;  and  the  obligation,  assumed  by  the  acceptance  of  its 
charter,  to  transport  all  persons  and  merchandise,  upon  like  condi- 
tions and  upon  reasonable  rates,  affect  the  property  and  employment 
with  a  public  use  ;  and  where  property  is  thus  affected,  the  business 
in  which  it  is  used  is  subject  to  legislative  control.  So  long  as  the 
use  continues,  the  power  of  regulation  remains,  and  the  regulation 
may  extend  not  merely  to  provisions  for  the  security  of  passengers 
and  freight  against  accidents,  and  for  the  convenience  of  the  public, 
but  also  to  prevent  extortion  by  unreasonable  charges,  and  favoritism 
by  unjust  discriminations.  This  is  not  a  new  doctrine  but  an  old 
doctrine,  always  asserted  whenever  property  or  business  is,  by  rea- 
son of  special  privileges  received  from  the  government,  the  better  to 
secure  the  purposes  to  which  the  property  is  dedicated  or  devoted, 
affected  with  a  public  use.  There  have  been  differences  of  opinion 
among  the  judges  of  this  court  in  some  cases  as  to  the  circumstances 
or  conditions  under  which  some  kinds  of  property  or  business  may 
be  properly  held  to  be  thus  affected,  as  in  Munn  v.  Illinois,  94  U.  S. 
113,  126,  139,  146;  but  none  as  to  the  doctrine  that  when  such  use 
exists  the  business  becomes  subject  to  legislative  control  in  all  re- 
spects necessary  to  protect  the  public  against  danger,  injustice,  and 
oppression.  In  almost  every  case  which  has  been  before  this  court, 
where  the  power  of  the  State  to  regulate  the  rates  of  charges  of  rail- 
road companies  for  the  transportation  of  persons  and  freight  within 
its  jurisdictiou  has  been  under  consideration,  the  question  discussed 


SECT.  I.]  EAST    HARTFORD    V.    HARTFORD    BRIDGE   CO.  1021 

has  not  been  the  original  power  of  the  State  over  the  subject,  but 
whether  that  power  had  not  been,  by  stipuhitions  of  the  charter,  or 
other  legislation,  amounting  to  a  contract,  surrendered  to  the  com- 
pany, or  been  in  some  manner  qualified,  it  is  only  upon  the  latter 
point  that  there  have  been  differences  of  opinion. 

The  question  then  arises  whether  there  is  in  the  12th  section  of 
the  charter  of  tlie  plaintiff  in  error  a  contract  that  it  may  make 
any  charges  within  the  limits  there  designated. 

It  is  conceded  that  a  railroad  corporation  is  a  private  corporation, 
though  its  uses  are  public,  and  that  a  contract  embodied  in  terms 
in  its  provisions,  or  necessarily  implied  by  tliem,  is  within  the  con- 
stitutional clause  prohibiting  legislation  impairing  the  obligation  of 
contracts.  If  the  charter  in  this  way  provides  that  the  charges,  which 
the  company  may  make  for  its  services  in  the  transportation  of  per- 
sons and  property,  shall  be  subject  only  to  its  own  control  up  to  the 
limit  designated,  exemption  from  legislative  interference  within  that 
limit  will  be  maintained.  But  to  effect  this  result,  the  exemption 
must  appear  by  such  clear  and  unmistakable  language  that  it  cannot 
be  reasonably  construed  consistently  with  the  reservation  of  the 
power  by  the  State.  There  is  no  sucli  language  in  the  present  case. 
The  contention  of  the  plaintiff  in  error  therefore  fails,  and  the  judg- 
ment must  be  Affirmed. 


EAST  HARTFORD   v.   HARTFORD  BRIDGE  COMPANY. 
10  Howard,  511;  IS  Curtis,  483.     1850. 

[The  Hartford  Bridge  Company  prosecuted  this  action  in  the  courts 
of  Connecticut  to  enjoin  the  town  of  East  Hartford  from  reopening 
a  ferry.  The  town  claimed  the  right  to  operate  the  ferry  by  virtue 
of  an  old  colonial  grant,  but  the  legislature  in  1808  chartered  the 
Bridge  Company  and  gave  it  a  franchise  to  erect  a  bridge  which 
superseded  the  ferry.  Subsequently  the  legislature  formally  discon- 
tinued the  ferry.  Plaintiff  claimed  in  the  State  court  that  the  at- 
tempt of  the  town  to  reopen  the  ferry  was  a  violation  of  contract 
rights  involved  in  the  legislation  in  behalf  of  the  Bridge  Company. 
The  judgment  in  the  Supreme  Court  of  Connecticut  being  adverse  to 
the  town,  it  brings  the  case  to  this  court  by  writ  of  error.] 

Mr.  Justice  Woodbury  delivered  the  opinion  of  the  court. 

But  it  is  not  found  necessary  for  us  to  decide  finally  on  this  first 
and  more  doubtful  question,  as  our  opinion  is  clearly  in  favor  of  the 
defendant  in  error  on  the  other  question  ;  namely,  that  the  parties 


1022  PROTECTION    TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVL 

to  this  grant  did  not  by  their  charter  stand  in  the  attitude  towards 
each  other  of  making  a  contract  by  it,  such  as  is  contemplated  in  the 
constitution,  and  as  could  not  be  modified  by  subsequent  legislation. 
The  legislature  was  acting  here  on  the  one  part,  and  public  muni- 
cipal and  political  corporations  on  the  other.  They  were  acting, 
too,  in  relation  to  a  public  object,  being  virtually  a  highway  across 
the  river,  over  another  highway  up  and  down  the  river.  From  this 
standing  and  relation  of  these  parties,  and  from  the  subject-matter 
of  their  action,  we  think  that  the  doings  of  the  legislature  as  to  tliis 
ferry  must  be  considered  rather  as  public  laws  than  as  contracts. 
They  related  to  public  interests.  They  changed  as  those  interests 
demanded.  The  grantees  likewise,  the  towns  being  mere  organiza- 
tions for  public  purposes,  were  liable  to  have  their  public  powers, 
rights,  and  duties  modified  or  abolished  at  any  moment  by  the 
legislature. 

They  are  incorporated  for  public,  and  not  private  objects.  They 
are  allowed  to  hold  privileges  or  property  only  for  public  purposes. 
The  members  are  not  shareholders,  nor  joint  partners  in  any  corpo- 
rate estate,  which  they  can  sell  or  devise  to  others,  or  which  can  be 
attached  and  levied  on  for  their  debts. 

Hence,  generally,  the  doings  between  them  and  the  legislature  are 
in  the  nature  of  legislation  rather  than  compact,  and  subject  to  all  the 
legislative  conditions  just  named,  and  therefore  to  be  considered  as 
not  violated  by  subsequent  legislative  changes. 

It  is  hardly  possible  to  conceive  the  grounds  on  which  a  different 
result  could  be  vindicated,  without  destroying  all  legislative  sov- 
ereignty, and  checking  most  legislative  improvements  and  amend- 
ments, as  well  as  supervision  over  its  subordinate  public  bodies. 

Thus,  to  go  a  little  into  details,  one  of  the  highest  attributes  and 
duties  of  the  legislature  is  to  regulate  public  matters  with  all  public 
bodies,  no  less  than  the  community,  from  time  to  time,  in  the  man- 
ner which  the  public  welfare  may  appear  to  demand. 

It  can  neither  devolve  these  duties  permanently  on  other  public 
bodies,  nor  permanently  suspend  or  abandon  them  itself,  without 
being  usually  regarded  as  unfaithful,  and,  indeed,  attempting  what 
is  wholly  beyond  its  constitutional  competency. 

It  is  bound,  also,  to  continue  to  regulate  such  public  matters  and 
bodies,  as  much  as  to  organize  them  at  first.  Where  not  restrained 
by  some  constitutional  pi'ovision,  this  power  is  inherent  in  its  nature, 
design,  and  attitude  ;  and  the  community  possess  as  deep  and  per- 
manent an  interest  in  such  power  remaining  in  and  being  exercised 
by  the  legislature,  when  the  public  progress  and  welfare  demand  it, 
as  individuals  or  corporations  can,  in  any  instance,  possess  in  re- 
straining it.     See  Taney,  C.  J.,  in  11  Pet.  547,  548. 

Looking  to  the  subject,  when,  as  here,  the  grantees  as  well  as  the 
grantors  are  public  bodies,    and  created  solely  for   municipal   and 


SECT.  I.]  MORLEY    V.    LAKE    SHORE,    ETC.    RAILWAY    CO.  1023 

political  objects,  the  continued  right  of  the  legislature  to  make  regu- 
lations and  changes  is  still  clearer.  Perhaps  a  stronger  illustration 
of  this  principle  than  any  yet  cited  exists  in  another  of  our  own 
decisions. 

In  the  State  of  Maryland  v.  Baltimore  and  Ohio  Railroad,  3  How. 
551,  this  court  held,  that  a  grant  by  the  legislature  to  a  county,  of 
a  sum  forfeited,  could  be  dispensed  with  by  the  legislature  after- 
wards, as  it  was  made  for  public,  not  private  purposes,  and  to  a 
public  body. 

[The  court  further  considers  the  nature  of  the  grant  to  the  town 
of  East  Hartford,  and  finds  that  it  is  in  the  nature  of  a  public  grant, 
and  holds  therefore  that  the  subsequent  repeal  by  the  legislature  did 
not  violate  any  contract  rights  of  the  town,  and  the  judgment  of 
the  State  court  is  affirmed.] 


MORLEY  V.   LAKE   SHORE  &   MICHIGAN   SOUTHERN 
RAILWAY  COMPANY. 

146  United  States,  162.     1892. 

[In  a  proceeding  in  the  State  courts  of  New  York  a  judgment  was 
rendered  against  a  railroad  company,  to  which  the  defendant  in  error 
is  successor,  and  the  latter  company  being  brought  into  court  as  de- 
fendant for  the  purpose  of  having  the  judgment  enforced  against  it, 
sought  to  have  the  court  declare  the  judgment  satisfied  by  the  pay- 
ment of  a  less  sum  than  the  sum  claimed  to  be  due  thereon,  the 
difference  in  the  claims  of  the  contending  parties  being  based  upon 
a  reduction  of  the  rate  of  interest  payable  on  judgments,  which  was 
made  by  a  statute  of  New  York  passed  after  the  original  decree  was 
rendered  and  long  after  the  making  of  the  contract  under  which  the 
claim  accrued.  It  was  contended  that  the  New  York  statute  reduc- 
ing the  rate  of  interest  on  the  judgment  was  unconstitutional  as  im- 
pairing the  obligation  of  the  contract  on  which  the  judgment  was 
based.  It  was  also  contended  there  was  a  saving  clause  in  the  New 
York  statutes  which  prevented  the  provision  in  question  as  to  the 
reduction  of  the  rate  of  interest  having  application  to  contracts 
already  made,  but  it  was  held  in  the  State  courts  that  the  saving 
clause  applied  only  to  contracts  and  not  to  judgments.  The  decision 
of  the  Court  of  Appeals  of  New  York  was  to  the  effect  that  the 
statute  reducing  the  rate  of  interest  on  judgments  was  applicable  to 
the  judgment  in  question,  and  was  not  unconstitutional  as  impairing 
any  contract  right;  and  this  decision  was  brought  to  this  court  by 
writ  of  error  for  review,  j 


1024  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI, 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

Assuming,  then,  that  the  statute  in  question  was  correctly  con- 
strued by  the  New  York  court,  our  only  inquiry  must  be  as  to  the 
validity  of  the  statute  itself,  as  construed  by  the  State  court.  Did, 
then,  the  law  that  changed  the  rate  of  interest  thereafter  to  accrue 
on  a  subsisting  judgment,  infringe  a  contract  within  the  meaning  of 
the  Constitution  of  the  United  States  ? 

Before  we  state  the  conclusions  reached  by  this  court,  the  conten- 
tion on  behalf  of  the  plaintiff  in  error  may  be  briefly  stated,  as 
follows : 

The  judgment  was  based  on  a  contract  which,  as  soon  as  it  became 
a  cause  of  action  by  the  failure  of  the  defendant  to  comply  with  its 
terms,  began,  under  the  then  existing  law  of  the  State,  to  draw  in- 
terest at  the  rate  of  seven  per  cent  per  annum,  and,  when  merged 
into  judgment,  was  entitled  to  draw  interest  at  that  rate  until  paid  ; 
that  such  judgment  was  itself  a  contract  in  the  constitutional  sense ; 
and  that  the  interest  accruing  and  to  accrue  was  as  much  a  part  of 
the  contract  as  the  principal  itself,  and  equally  within  the  protection 
of  the  Constitution. 

Interest  on  a  principal  sum  may  be  stipulated  for  in  the  contract 
itself,  either  to  run  from  the  date  of  the  contract  until  it  matures, 
or  until  payment  is  made  ;  and  its  payment  in  such  a  case  is  as  much 
a  part  of  the  obligation  of  contract  as  the  principal,  and  equally 
within  the  protection  of  the  Constitution.  But  if  the  contract  itself 
does  not  provide  for  interest,  then,  of  course,  interest  does  not  accrue 
during  the  running  of  the  contract,  and  whether,  after  maturity  and 
a  failure  to  pay,  interest  shall  accrue,  depends  wholly  on  the  law  of 
the  State,  as  declared  by  its  statutes.  If  the  State  declares  that,  in 
case  of  the  breach  of  a  contract,  interest  shall  accrue,  such  interest 
is  in  the  nature  of  damages,  and,  as  between  the  parties  to  the  con- 
tract, such  interest  will  continue  to  run  until  payment,  or  until  the 
owner  of  the  cause  of  action  elects  to  merge  it  into  judgment. 

After  the  cause  of  action,  whether  a  tort  or  a  broken  contract,  not 
itself  prescribing  interest  till  payment,  shall  have  been  merged  into 
a  judgment,  whether  interest  shall  accrue  upon  the  judgment  is  a 
matter  not  of  contract  between  the  parties,  but  of  legislative  discre- 
tion, which  is  free,  so  far  as  the  Constitution  of  the  United  States  is 
concerned,  to  provide  for  interest  as  a  penalty  or  liquidated  damages 
for  the  non-payment  of  the  judgment,  or  not  to  do  so.  When  such 
provision  is  made  by  statute,  the  owner  of  the  judgment  is,  of  course, 
entitled  to  the  interest  so  prescribed  until  payment  is  received,  or 
until  the  State  shall,  in  the  exercise  of  its  discretion,  declare  that 
such  interest  shall  be  changed  or  cease  to  accrue.  Should  the  statu- 
tory damages  for  non-payment  of  a  judgment  be  determined  by  a 
State,  either  in  whole  or  in  part,  the  owner  of  a  judgment  will  be 
entitled  to  receive  and  have  a  vested  right  in  the  damages  which 


SECT.  I.]  MORLEY   V.   LAKE   SHORE,   ETC.    RAILWAY   CO.  1025 

shall  have  accrued  up  to  the  date  of  the  legislative  change  ;  but  after 
that  time  his  rights  as  to  interest  as  damages  are,  as  when  he  first 
obtained  his  judgment,  just  what  the  legislature  chooses  to  declare. 
He  has  no  contract  whatever  on  the  subject  with  the  defendant  in 
the  judgment,  and  his  right  is  to  receive,  and  the  defendant's  obliga- 
tion is  to  pay,  as  damages,  just  what  the  State  chooses  to  prescribe. 

It  is  contended  on  behalf  of  the  plaintiff  in  error,  as  stated  above, 
that  the  judgment  is  itself  a  contract,  and  includes  within  the  scope 
of  its  obligation  the  duty  to  pay  interest  thereon.  As  we  have  seen, 
it  is  doubtless  the  duty  of  the  defendant  to  pay  the  interest  that  shall 
accrue  on  the  judgment,  if  such  interest  be  prescribed  by  statute,  but 
such  duty  is  created  by  the  statute,  and  not  by  the  agreement  of  the 
parties,  and  the  judgment  is  not  itself  a  contract  within  the  mean- 
ing of  the  constitutional  provision  invoked  by  the  plaintiff  in  error. 
The  most  important  elements  of  a  contract  are  wanting.  There  is 
no  aggregatio  mentium.  The  defendant  has  not  voluntarily  assented 
or  promised  to  pay.  "  A  judgment  is,  in  no  sense,  a  contract  or  agree- 
ment between  the  parties."  Wyman  v.  Mitchell,  1  Cowen,  316,  321. 
In  McCoun  v.  New  York  Central,  etc.  R.  R.  Co.,  50  N.  Y.  176,  180,  it 
was  said  that  "  a  statute  liability  wants  all  the  elements  of  a  con- 
tract. Consideration  and  mutuality,  as  well  as  the  assent  of  the  party. 
Even  a  judgment  founded  upon  a  contract  is  no  contract."  In  Bidle- 
son  V.  Whytel,  3  Burrow,  1545,  it  was  held  by  Lord  Mansfield,  after 
great  deliberation,  and  after  consultation  with  all  the  judges,  that 
''  a  judgment  is  no  contract,  nor  can  be  considered  in  the  light  of  a 
contract:  iov  judicium  reddiUir  in  invituniy  To  a.  scire  facias  on  a 
judgment,  entered  in  13  Car.  II.,  the  defendant  for  plea  alleged  that 
the  contract  upon  which  recovery  was  had  was  usurious,  to  which 
plea  the  plaintiff  demurred,  saying  that  judgments  cannot  be  void 
upon  such  a  ground,  since  by  the  judgment  the  original  contract 
which  is  supposed  to  be  usurious  is  determined,  and  cited  tlie  case 
of  Middleton  v.  Hall  (Gouldsb.  128,  and  Cro.  Eliz.  588).  And  accord- 
ing to  this  the  plea  was  ruled  bad,  and  judgment  given  for  the 
plaintiff.  Rowe  v.  Bellaseys,  1  Siderfin,  182.  "To  a  scire  facias  on 
a  judgment  by  confession,  the  defendant  pleaded  that  the  warrant 
of  attorney  was  given  on  an  usurious  contract.  And  upon  demurrer 
it  was  held  that  this  was  not  within  the  statute  12  Anne  [of  usury], 
or  to  be  got  at  this  way,  for  this  is  no  contract  or  assurance,  a  judg- 
ment being  redditum  in  invitum.'^  Bush  v.  Gower,  2  Strange,  1043. 
In  Louisiana  v.  New  Orleans,  109  U.  S.  285,  288,  in  which  it  was 
contended  on  behalf  of  an  owner  of  a  judgment  that  it  was  a  con- 
tract, and  within  the  protection  of  the  Federal  Constitution  as  such, 
it  was  said  that  "  the  term  '  contract '  is  used  in  the  Constitution  in 
its  ordinary  sense,  as  signifying  the  agreement  of  two  or  more  minds, 
for  considerations  proceeding  from  one  to  the  other,  to  do,  or  not  to 
do,  certain  acts.  Mutual  assent  to  its  terms  is  of  its  very  essence." 
Where  the  transaction  is  not  based  upon  any  assent  of  parties  it  can- 

66 


1026      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

not  be  said  that  any  faitli  is  pledged  with  respect  to  it,  and  no  case 
arises  for  the  operation  of  the  constitutional  prohibition.  Garrison 
V.  City  of  New  York,  21  Wall.  196,  203.  It  is  true  that  in  Louisiana 
V.  New  Orleans,  and  in  Garrison  v.  City  of  New  York,  the  causes  of 
action  merged  in  the  judgments  were  not  contract  obligations  ;  but 
iu  both  these  cases,  as  in  this,  the  court  was  dealing  with  the  conten- 
tion that  the  judgments  themselves  were  contracts  propria  v'lgore. 

The  further  contention  of  the  plaintiff  in  error,  that  he  has  been 
deprived  of  his  property  without  due  process  of  law,  can  be  more 
readily  disposed  of.  If,  as  we  have  seen,  the  plaintiff  has  actually 
received  on  account  of  his  judgment  all  that  he  is  entitled  to  receive, 
he  cannot  be  said  to  have  been  deprived  of  his  property ;  and  whether 
or  not  a  statutory  change  in  the  rate  of  interest  thereafter  to  accrue 
on  the  judgment  can  be  regarded  as  a  deprivation  of  property,  the 
adjudication  of  the  plaintiff's  claims  by  the  courts  of  his  own  State 
must  be  admitted  to  be  due  process  of  law.  Nor  are  we  authorized 
by  the  judiciary  act  to  review  this  judgment  of  the  State  court,  be- 
cause this  judgment  refuses  to  give  effect  to  a  valid  contract  or  because 
such  judgment  in  its  effect  impairs  the  obligation  of  a  contract.  If 
we  did,  every  case  decided  in  the  State  courts  could  be  brought  here, 
when  the  party  setting  up  a  contract  alleged  that  the  court  took  a 
different  view  of  its  obligation  from  that  which  he  held.  Knox  ;;. 
Exchange  Bank,  12  Wall.  379,  383. 

The  result  of  these  views  is,  that  we  find  no  error  in  the  record, 
and  that  the  judgment  of  the  New  York  Court  of  Appeals  is 
accordingly  Affirmed.^ 


McCKACKIN  V.   HAYWARD. 

2  Howard,  608  ;  15  Curtis,  228.    184-1. 

[Suit  was  brought  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  Illinois  to  foreclose  a  mortgage.  It  appeared  that 
after  the  execution  of  the  mortgage  in  Illinois  a  State  statute  was 
passed  requiring  that  in  sales  of  real  or  personal  property  under  fore- 
closure of  mortgage  an  appraisement  should  be  made  of  the  value  of 
the  property  and  the  sale  should  be  for  not  less  than  two-thirds  of  such 
appraised  value.  This  statutory  provision  having  been  adopted  by 
rule  of  the  Circuit  Court  as  applicable  to  foreclosure  of  mortgages  in 
that  court,  it  was  contended  that  tlie  statute  and  rule  were  not  appli- 
cable to  a  mortgage  executed  before  the  passage  of  the  statute.     On 

1  Mb.  Justice  Harlan  delivered  a  dissenting  opinion,  iu  which  Mr.  Justice  Field 
and  Mr.  Justice  Brewer  concurred. 


SECT.  I.]  McCRACKIN   V.    HAYWARD.  1027 

certificate  of  division  of  opinion  of  the  judges  of  the  court,  the  case 
was  brought  to  this  court.] 

Mr.  Justice  Baldwin  delivered  the  opinion  of  the  court. 

In  placing  the  obligation  of  contracts  under  the  protection  of  the 
Constitution,  its  framers  looked  to  the  essentials  of  the  contract  more 
than  to  the  forms  and  modes  of  proceeding  by  which  it  was  to  be 
carried  into  execution;  annulling  all  State  legislation  which  impaired 
the  obligation,  it  was  left  to  the  States  to  prescribe  and  shape  the 
remedy  to  enforce  it.  The  obligation  of  a  contract  consists  in  its 
binding  force  on  the  pai-ty  who  makes  it.  This  depends  on  the  laws 
in  existence  when  it  is  made;  these  are  necessarily  referred  to  in  all 
contracts,  and  forming  a  part  of  them  as  the  measure  of  the  obliga- 
tion to  perform  them  by  the  one  party,  and  the  right  acquired  by  the 
other.  There  can  be  no  other  standard  by  which  to  ascertain  the 
extent  of  either,  than  that  which  the  terms  of  the  contract  indicate, 
according  to  their  settled  legal  meaning ;  when  it  becomes  consum- 
mated, the  law  defines  the  duty  and  the  right,  compels  one  party  to 
perform  the  thing  contracted  for,  and  gives  the  other  a  right  to  enforce 
the  performance  by  the  remedies  then  iu  force.  If  any  subsequent 
law  affect  to  diminish  the  duty,  or  to  impair  the  right,  it  necessarily 
bears  on  the  obligation  of  the  contract,  in  favor  of  one  party,  to  the 
injury  of  the  other;  hence  any  law  which  in  its  operation  amounts 
to  a  denial  or  obstruction  of  the  rights  accruing  by  a  contract,  though 
professing  to  act  only  on  the  remedy,  is  directly  obnoxious  to  the 
prohibition  of  the  Constitution. 

This  principle  is  so  clearly  stated  and  fully  settled  in  the  case  of 
Bronson  v.  Kinzie,  decided  at  the  last  term,  1  How.  311,  that  noth- 
ing remains  to  be  added  to  the  reasoning  of  the  court,  or  requires  a 
reference  to  any  other  authority  than  what  is  therein  referred  to; 
it  is,  however,  not  to  be  understood  that  by  that,  or  any  former  de- 
cision of  this  court,  all  State  legislation  on  existing  contracts  is  repug- 
nant to  the  Constitution. 

"  It  is  within  the  undoubted  power  of  State  legislatures  to  pass  re- 
cording acts,  by  which  the  elder  grantee  shall  be  postponed  to  a 
younger,  if  the  prior  deed  is  not  recorded  within  the  limited  time, 
and  the  power  is  the  same  whether  tlie  deed  is  dated  before  or  after 
the  passage  of  the  recording  act.  Thougli  the  effect  of  such  a  law  is 
to  render  the  prior  deed  fraudulent  and  void  as  against  a  subsequent 
purchaser,  it  is  not  a  law  impairing  the  obligation  of  contracts ;  such, 
too,  is  the  power  to  pass  acts  of  limitation,  and  their  effect.  Keasons 
of  sound  policy  have  led  to  the  general  adoption  of  laws  of  both  de- 
scriptions, and  their  validity  cannot  be  questioned.  The  time  and 
manner  of  their  operation,  the  exceptions  to  them,  and  the  acts  from 
which  the  time  limited  shall  begin  to  run,  will  generally  depend  on 
the  sound  discretion  of  the  legislature,  according  to  the  nature  of  the 
titles,  the  situation  of  the  country,  and  the  emergency  which  leads  to 


1028  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

their  enactment.  Cases  may  occur  where  the  provisions  of  a  law 
may  be  so  unreasonable  as  to  amount  to  the  denial  of  a  right,  and 
call  for  the  interposition  of  the  court."     3  Pet.  290. 

The  obligation  of  the  contract  between  the  parties,  in  this  case, 
was  to  perform  the  promises  and  undertakings  contained  therein  ;  the 
right  of  the  plaintiff  was  to  damages  for  the  breach  thereof,  to  bring 
suit  and  obtain  a  judgment,  to  take  out  and  prosecute  an  execution 
against  the  defendant  till  the  judgment  was  satisfied,  pursuant  to  the 
existing  laws  of  Illinois.  These  laws  giving  these  rights  were  as  per- 
fectly binding  on  the  defendant,  and  as  much  a  part  of  the  contract, 
as  if  they  had  been  set  forth  in  its  stipulations  in  the  very  words  of 
tlie  law  relating  to  judgments  and  executions.  If  the  defendant  had 
made  such  an  agreement  as  to  authorize  a  sale  of  his  property,  which 
should  be  levied  on  by  the  sheriff,  for  such  price  as  should  be  bid  for 
it  at  a  fair  public  sale  on  reasonable  notice,  it  would  have  conferred 
a  right  on  the  plaintiff,  which  the  Constitution  made  inviolable ;  and 
it  can  make  no  difference  whether  such  right  is  conferred  by  the 
terms  or  law  of  the  contract.  Any  subsequent  law  which  denies, 
obstructs,  or  impairs  this  right,  by  superadding  a  condition  that 
there  shall  be  no  sale  for  any  sum  less  than  the  value  of  the 
property  levied  on,  to  be  ascertained  by  appraisement,  or  any  other 
mode  of  valuation  than  a  public  sale,  affects  the  obligation  of  the 
contract  as  much  in  the  one  case  as  the  other,  for  it  can  be  en- 
forced only  by  a  sale  of  the  defendant's  property,  and  the  prevention 
of  such  sale  is  the  denial  of  a  right.  The  same  power  in  a  State 
legislature  may  be  carried  to  any  extent,  if  it  exists  at  all ;  it  may 
prohibit  a  sale  for  less  than  the  whole  appraised  value,  or  for  three- 
fourths,  or  nine-tenths,  as  well  as  for  two-thirds  ;  for  if  the  power  can 
be  exercised  to  any  extent,  its  exercise  must  be  a  matter  of  uncon- 
trollable discretion,  in  passing  laws  relating  to  the  remedy  which  are 
regardless  of  the  effect  on  the  right  of  the  plaintiff.  This  was  the 
ruling  principle  of  the  case  of  Bronson  ?;.  Kinzie,  1  How.  311,  which 
arose  on  a  mortgage  containing  a  covenant,  that,  in  default  of 
payment,  the  mortgagee  might  enter  upon,  sell,  and  convey  the 
mortgaged  premises,  as  the  attorney  of  the  mortgagor;  yet  the  case 
was  not  decided  on  the  effect  and  obligation  of  that  covenant, 
but  on  the  broad  and  general  principle,  that  a  State  law,  which 
professedly  provided  a  remedy  for  enforcing  the  contract  of  mort- 
gage, effectually  impaired  the  rights  incident  to,  and  attached  to  it 
by  the  laws  in  force  at  its  date,  was  void.  No  agreement  or  contract 
can  create  more  binding  obligations  than  those  fastened  by  the  law, 
which  the  law  creates  and  attaches  to  contracts ;  the  express  power 
which  a  mortgagor  confers  on  the  mortgagee  to  sell  as  his  agent  is 
not  more  potent  than  that  which  the  law  delegates  to  the  marshal,  to 
sell  and  convey  the  property  levied  on,  under  an  execution.  He  is 
the  constituted  agent  of  the  defendant,  invested  with  all  his  powers 
for  these  purposes.     The  marshal  can  do  under  the  authority  of  the 


SECT.  I.]  MITCHELL   V.    CLARK.  1029 

law  whatever  he  could  do  under  the  fullest  power  of  attorney  from 
the  execution  debtor  ;  and  no  State  law  can  prohibit  it.  It  follows 
that  the  law  of  Illinois  now  under  consideration,  so  far  as  it  prohibits 
a  sale  for  less  than  two-thirds  of  the  appraised  value  of  the  property 
levied  on,  is  unconstitutional  and  void.^ 

1  In  GuNN  V.  Barry,  15  Wail.  610  (1872),  the  validity  of  a  State  statute  increasing 
the  exemption  to  a  debtor,  as  apjilied  to  indebtedness  under  a  contract  already  exist- 
ing, was  brought  in  question.  Mr.  Justice  Swayne,  delivering  the  opinion  of  the 
court,  uses  this  language:  — 

"  The  legal  remedies  for  the  enforcement  of  a  contract,  which  belong  to  it  at  the 
time  and  place  where  it  is  made,  are  a  part  of  its  obligation.  A  State  may  change 
them,  provided  the  change  involve  no  impairment  of  a  substantial  right.  If  the 
provision  of  the  Constitution,  or  the  legislative  act  of  a  State,  fall  within  the  category 
last  mentioned,  they  are  to  that  extent  utterly  void.  Tiiey  are,  for  all  the  purposes  of 
the  contract  which  they  impair,  as  if  they  liad  never  existed.  The  constitutional  pro- 
vision and  statute  here  in  question  are  clearly  within  that  category,  and  are,  there- 
fore, void.  The  jurisdictional  prohibition  which  tliey  coutain  with  respect  to  the 
courts  of  the  State  can,  therefore,  form  no  impediment  to  the  plaintiff  in  error  in  the 
enforcement  of  his  rights  touching  this  judgment,  as  those  rights  are  recognized  by 
this  court.  White  v.  Hart,  13  Wall.  646;  Von  Hoffman  v.  Tlie  City  of  Quincy, 
4  id.  535. 

In  Terry  v.  Anderson,  95  U.  S.  628  (1877),  the  validity  of  a  State  statute  of 
Georgia  passed  in  1869  providing  that  causes  of  action  which  had  accrued  prior  to 
1865,  and  which  were  not  brought  by  the  first  of  January,  1870,  should  be  barred  after 
the  latter  date,  was  called  in  question.  It  appearing  tiiat  under  the  statute  of  limitation 
in  force  when  the  contract  was  made  the  right  of  action  thereunder  would  not  be  barred, 
it  was  contended  that  the  subsequent  statute  impaired  the  obligation  of  the  prior 
contract.  Mr.  Chief  Justice  Waite,  delivering  the  opinion  of  the  court,  uses  this 
language  :  — 

"This  court  has  often  decided  that  statutes  of  limitation  affecting  existing  rights 
are  not  unconstitutional,  if  a  reasonalile  time  is  given  for  the  commencement  of  an 
action  before  the  bar  takes  effect.  Hawkins  v.  Barney,  5  Pet.  451  ;  Jackson  v.  Lam- 
pliire,  3  id.  280;  Sohn  v.  Waterson,  17  Wall.  596;  Christmas  v.  Russell,  5  id.  290; 
Sturges  r.  Crowninshield,  4  Wheat.  122.  It  is  difficult  to  see  why,  if  the  legislature 
may  prescribe  a  limitation  where  none  existed  before,  it  may  not  change  one  which 
has  already  been  established.  The  parties  to  a  contract  have  no  more  a  vested  interest 
in  a  particular  limitation  which  has  been  fixed,  than  they  have  in  an  unrestricted 
riglit  to  sue.  They  have  no  more  a  vested  interest  in  the  time  for  the  commencement 
of  an  action  than  they  have  in  the  form  of  the  action  to  be  commenced  ;  and  as  to 
the  forms  of  action  or  modes  of  remedy,  it  is  well  settled  that  the  legislature  may 
change  them  at  its  discretion,  provided  adequate  means  of  enforcing  the  right 
remain. 

"  In  all  such  cases,  the  question  is  one  of  rea.sonableness,  and  we  have  therefore 
only  to  consider  wliether  the  time  allowed  in  this  statute  is,  under  all  the  circum- 
stances, reasonable.  Of  that  the  legislature  is  primarily  the  judge  ;  and  we  cannot 
overrule  the  decision  of  that  department  of  the  government,  unless  a  palpable  error 
has  been  committed.  In  judging  of  that,  we  must  place  ourselves  in  the  position  of 
the  legislators,  and  must  measure  the  time  of  limiiati(m  in  the  midst  of  the  circum- 
stances which  surrounded  them,  as  nearly  as  possible ;  for  wiiat  is  reasonable  in  a 
particular  case  depends  upon  its  particular  facts." 

In  Mitchell  v.  Clark,  110  U.  S.  633  (1884),  it  appeared  th.at  in  a  State  court  of 
Missouri  the  validity  of  a  statute  of  the  United  States  was  brought  in  (luestion  wiiich 
prescribed  a  limit  to  actions  on  account  of  any  arrest  or  imprisonment  made  or  trespass 
committed  during  the  rel)cllion  by  virtue  or  under  color  of  any  authority  derived 
from  or  exercised  by  or  under  the  President  of  the  United  l^'tates  or  by  or  under  any 


1030      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 


Section  II.  —  Protection  to  Property. 


MISSOURI   PACIFIC   RAILWAY  v,  NEBRASKA. 
164  United  States,  403.     1896. 

[An  action  for  a  mandamus  was  brought  in  the  Supreme  Court  of 
the  State  of  Nebraska  to  compel  the  plaiutitf  iu  error  to  comply  with 
an  order  of  the  Nebraska  State  Board  of  Transportation  which  di- 
rected the  company  to  grant  to  certain  persons  the  right  to  erect  an 
elevator  upon  the  grounds  of  the  railway  company  at  one  of  its 
stations  in  accordance  with  the  provision  of  tlie  constitution  of 
Nebraska  which  declares  that  railways  are  "  public  highways  and 
shall  be  free  to  all  persons  for  the  transportation  of  their  persons 
or  property  thereon  under  such  regulations  as  may  be  prescribed 
by  law,"  and  statutory  provisions  thereunder  providing  for  a  board  of 
transportation  and  authorizing  it  to  investigate  cases  of  discrimina- 
tion, etc.  It  appeared  that  permission  had  been  given  to  two  private 
firms  to  erect  elevators  upon  the  right  of  way  at  this  station,  and 
complainants  who  were  refused  permission  to  erect  a  third  elevator 
under  the  same  terras  and  conditions  as  those  granted  in  the  other 
cases  asked  relief  on  the  ground  that  such  refusal  was  an  unjust 
discrimination.  A  mandamus  having  been  awarded  in  the  trial  court 
and  sustained  in  the  State  Supreme  Court,  the  case  is  brought  to  this 
court  by  writ  of  error.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  order  in  question  was  not,  and  was  not  claimed  to  be,  either 
in  the  opinion  of  the  court  below,  or  in  the  argument  for  the  defend- 
ant in  error  in  this  court,  a  taking  of  private  property  for  a  public 
use  under  the  right  of  eminent  domain.  The  petitioners  were  merely 
private   individuals,  voluntarily  associated  together  for  their   own 

act  of  Congress,  etc.  The  Supreme  Court  of  that  State  having  held  this  legislation  to 
he  invalid,  the  case  was  brought  by  writ  of  error  to  this  court.  Mr.  Jostice  Mili.kr, 
delivering  the  opinion  of  the  court,  uses  this  language:  — 

"  It  is  no  answer  to  this  to  say  that  [such  legislation]  interferes  with  the  validity  of 
contracts,  for  no  provision  of  the  Constitution  prohibits  Congress  from  doing  this,  as 
it  does  the  States ;  and  where  the  question  of  the  power  of  Congress  arises,  as  in  the 
legal  teniler  cases  and  in  bankruptcy  cases,  it  does  not  depend  upon  the  incidental 
effect  of  its  exercise  on  contracts,  but  on  the  existence  of  the  power  itself. 

"  In  regard  to  the  States,  which  are  expressly  forbidden  to  impair  by  legislation 
the  obligation  of  contracts,  it  has  been  repeate<lly  held  that  a  statute  of  liniitatinu 
which  reduces  materially  the  time  witliin  which  suit  may  be  commenced,  tIiou<rh 
passed  after  the  contract  wns  madp,  is  not  void  if  a  re.asonable  time  is  left  for  the 
enforcement  of  the  contract  by  suit  before  the  statute  bars  that  right." 


SECT.  II.]  MISSOURI    PACIFIC   RAILWAY   V.    NEBRASKA.  1031 

benefit.  They  do  not  appear  to  have  been  incorporated  by  the  State 
for  any  public  purpose  whatever  ;  or  to  have  themselves  intended  to 
establish  an  elevator  for  the  use  of  the  public.  On  the  contrary, 
their  own  application  to  the  railroad  company,  as  recited  in  their- 
complaint  to  the  board  of  transportation,  was  only  "for  a  location, 
on  the  right  of  way  at  Elmwood  station  aforesaid,  for  the  erection  of 
an  elevator  of  sufficient  capacity  to  store  from  time  to  time  the  cereal 
products  of  the  farms  and  leaseholds  of  complainants  aforesaid,  as 
well  as  the  products  of  other  neighboring  farms." 

To  require  the  railroad  company  to  grant  to  the  petitioners  a  loca- 
tion on  its  right  of  way,  for  the  erection  of  an  elevator  for  the  speci- 
fied purpose  of  storing  from  time  to  time  the  grain  of  the  petitioners 
and  of  neighboring  farmers,  is  to  compel  the  railroad  company, 
against  its  will,  to  transfer  an  estate  in  part  of  the  land  which  it  owns 
and  holds,  under  its  charter,  as  its  private  property  and  for  a  public 
use,  to  an  association  of  private  individuals,  for  the  purpose  of  erect- 
ing and  maintaining  a  building  thereon  for  storing  grain  for  their 
own  benefit,  without  reserving  any  control  of  the  use  of  such  land,  or 
of  the  building  to  be  erected  thereon,  to  the  railroad  company  for 
the  accommodation  of  its  own  business,  or  for  the  convenience  of  the 
public. 

This  court,  confining  itself  to  what  is  necessary  for  the  decision  of 
the  case  before  it,  is  unanimously  of  opinion,  that  the  order  in  ques- 
tion, so  far  as  it  required  the  railroad  corporation  to  surrender  a 
part  of  its  land  to  the  petitioners,  for  the  purpose  of  building 
and  maintaining  their  elevator  upon  it,  was,  in  essence  and  effect, 
a  taking  of  private  property  of  the  railroad  corporation,  for  the 
private  use  of  the  petitioners.  The  taking  by  a  State  of  the  private 
property  of  one  person  or  corporation,  without  the  owner's  consent, 
for  the  private  use  of  another,  is  not  due  process  of  law,  and  is  a  viola- 
tion of  the  Fourteenth  Article  of  Amendment  of  the  Constitution  of 
the  United  States.  Wilkinson  v.  Leland,  2  Pet.  627,  658  ;  Murray  v. 
Hoboken  Co.,  18  How.  272,  276 ;  Loan  Association  v.  Topeka,  20 
Wall.  655;  Davidson  v.  New  Orleans,  96  U.  S.  97,  102;  Cole  v. 
La  Grange,  113  U.  S.  1 ;  Fallbrook  District  v.  Bradley  [164  U.  S.], 
112,  158,  161 ;  State  v.  Chicago,  Milwaukee,  &  St.  Paul  Railway,  36 
Minn.  402. 

Judgment  rexiersed,  and  case  remanded  to  the  Supreme  Court  of 
the  State  of  Nebraska,  for  further  proceedings  not  inconsistent 
with  this  opinion. 


1032  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP,  XVI. 

PENNOYER  V.  NEFF. 
95  United  States,  714.     1877. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  the  possession  of  a  tract  of  land,  of  the 
alleged  value  of  $15,000,  situated  in  the  State  of  Oregon.  The  plain- 
tiff asserts  title  to  the  premises  by  a  patent  of  the  United  States 
issued  to  him  in  1866,  under  the  act  of  Congress  of  Sept.  27,  1850, 
usually  known  as  the  Donation  Law  of  Oregon.  The  defendant 
claims  to  have  acquired  the  premises  under  a  sherift''s  deed,  made 
upon  a  sale  of  the  property  on  execution  issued  upon  a  judgment 
recovered  against  the  plaintiff  in  one  of  the  Circuit  Courts  of  the 
State.     The  case  turns  upon  the  validity  of  this  judgment. 

It  appears  from  the  record  that  the  judgment  was  rendered  in 
February,  1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  $300, 
including  costs,  in  an  action  brought  by  him  upon  a  demand  for 
services  as  an  attorney  ;  that,  at  the  time  the  action  was  commenced 
and  the  judgment  rendered,  the  defendant  therein,  the  plaintiff  here, 
was  a  non-resident  of  the  State  ;  that  he  was  not  personally  served 
with  process,  and  did  not  appear  therein  ;  and  that  the  judgment  was 
entered  upon  his  default  in  not  answering  the  complaint,  upon  a  con- 
structive service  of  summons  by  publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action  is 
brought  against  a  non-resident  and  absent  defendant,  who  has 
property  within  the  State.  It  also  provides,  where  the  action  is 
for  the  recovery  of  money  or  damages,  for  the  attachment  of  the 
property  of  tlie  non-resident.  And  it  also  declares  that  no  natural 
person  is  subject  to  the  jurisdiction  of  a  court  of  the  State,  "unless 
he  appear  in  the  court,  or  be  found  within  the  State,  or  be  Q,  resident 
thereof,  or  have  property  therein  ;  and,  in  the  last  case,  only  to  the 
extent  of  such  property  at  the  time  the  jurisdiction  attached."  Con- 
struing this  latter  provision  to  mean,  that,  in  an  action  for  money  or 
damages  where  a  defendant  does  not  appear  in  the  court,  and  is  not 
found  within  the  State,  and  is  not  a  resident  thereof,  but  has  prop- 
erty therein,  the  jurisdiction  of  the  court  extends  only  over  such 
property,  the  declaration  expresses  a  principle  of  general,  if  not 
universal,  law.  The  authority  of  every  tribunal  is  necessarily  re- 
stricted by  the  territorial  limits  of  the  State  in  which  it  is  estab- 
lished. Any  attempt  to  exercise  authority  beyond  those  limits 
would  be  deemed  in  every  other  forum,  as  has  been  said  by  this 
court,  an  illegitimate  assumption  of  power,  and  be  resisted  as  mere 
abuse.  D'Arcy  v.  Ketchum  et  al.,  11  How.  165.  In  the  case  against 
the  plaintiff,  the  property  here  in  controversy  sold  under  the  judg- 
ment rendered  was  not  attached,  nor  in  any  way  brought  under  the 
jurisdiction    of  the  court.     Its  first  connection   with  the  case  was 


SECT.  II.]  PENNOYER   V.    NEFF.  1033 

caused  by  a  levy  of  the  execution.  It  was  not,  therefore,  disposed 
of  pursuant  to  any  adjudication,  but  only  in  enforcement  of  a  per- 
sonal judgment,  having  no  relation  to  the  property,  rendered  against 
a  non-resident  without  service  of  process  upon  him  in  the  action,  or 
his  appearance  therein.  The  court  below  did  not  consider  that  an 
attachment  of  tlie  property  was  essential  to  its  jurisdiction  or  to  the 
validity  of  the  sale,  but  held  that  the  judgment  was  invalid  from 
defects  in  the  affidavit  upon  which  the  order  of  piiblication  was  ob- 
tained, and  in  the  affidavit  by  which  the  publication  was  proved. 

But  it  was  also  contended  in  that  court,  and  is  insisted  upon  here, 
that  the  judgment  in  the  State  court  against  the  plaintiff  was  void 
for  want  of  personal  service  of  process  on  him,  or  of  his  apj^earance 
in  the  action  in  which  it  was  rendered,  and  that  the  premises  in  con- 
troversy could  not  be  subjected  to  the  payment  of  the  demand  of  a 
resident  creditor  except  by  a  proceeding  in  rem  ;  that  is,  by  a  direct 
proceeding  against  the  property  for  that  purpose.  If  these  positions 
are  sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity  of  that 
judgment  must  be  sustained,  notwithstanding  our  dissent  from  the 
reasons  upon  which  it  was  made.  And  that  they  are  sound  would 
seem  to  follow  from  two  well-established  principles  of  public  law 
respecting  the  jurisdiction  of  an  independent  State  over  persons  and 
property.  The  several  States  of  the  Union  are  not,  it  is  true,  in 
every  respect  independent,  many  of  the  rights  and  powers  which 
originally  belonged  to  them  being  now  vested  in  the  government 
created  by  the  Constitution.  But,  except  as  restrained  and  limited 
by  that  instrument,  they  possess  and  exercise  the  authority  of  inde- 
pendent States,  and  the  principles  of  public  law  to  which  we  have 
referred  are  applicable  to  them.  One  of  these  principles  is,  that 
every  State  possesses  exclusive  jurisdiction  and  sovereignty  over 
persons  and  property  within  its  territory.  As  a  consequence,  every 
State  has  the  power  to  determine  for  itself  the  civil  status  and  capa- 
cities of  its  inhabitants  ;  to  prescribe  the  subjects  upon  which  they 
may  contract,  the  forms  and  solemnities  with  which  their  contracts 
shall  be  pxecuted,  the  rights  and  obligations  arising  from  them,  and 
the  mode  in  which  their  validity  shall  be  determined  and  their  obli- 
gations enforced;  and  also  to  regulate  the  manner  and  conditions 
upon  which  property  situated  within  such  territory,  both  personal 
and  real,  may  be  acquired,  enjoyed,  and  transferred.  The  other 
principle  of  public  law  referred  to  follows  from  the  one  mentioned; 
that  is,  that  no  State  can  exercise  direct  jurisdiction  and  authority 
over  persons  or  property  without  its  territory.  Story,  Confl.  Laws, 
c.  2 ;  Wheat.  Int.  Law,  pt.  2,  c.  2.  The  several  States  are  of  equal 
dignity  and  authority,  and  the  independence  of  one  implies  the  exclu- 
sion of  power  from  all  others.  And  so  it  is  laid  down  by  jurists,  as 
an  elementary  principle,  that  the  laws  of  one  State  have  no  operation 
outside  of  its  territory,  except  so  far  as  is  allowed  by  comity ;  and 


1034  PROTECTION    TO    CONTRACTS    AND    PROPERTY.       [CHAP.  XVI. 

that  no  tribunal  established  by  it  can  extend  its  process  beyond  that 
territory  so  as  to  subject  either  persons  or  property  to  its  decisions. 
*'Any  exertion  of  authority  of  tins  sort  beyond  this  limit,"  says 
Story,  *'  is  a  mere  nullity,  and  incapable  of  binding  such  persons  or 
property  in  any  other  tribunals."  Story,  Confl.  Laws,  sect.  539. 

But  as  contracts  made  in  one  State  may  be  enforceable  only  in 
another  State,  and  property  may  be  held  by  non-residents,  the  exer- 
cise of  the  jurisdiction  which  every  State  is  admitted  to  possess  over 
persons  and  property  witliin  its  own  territory  will  often  affect  per- 
sons and  property  without  it.  To  any  influence  exerted  in  this  way 
by  a  State  affecting  persons  resident  or  property  situated  elsewhere, 
no  objection  can  be  justly  taken;  whilst  any  direct  exertion  of  au- 
thority upon  them,  in  an  attempt  to  give  ex-territorial  operation  to 
its  laws,  or  to  enforce  an  ex-territorial  jurisdiction  by  its  tribunals, 
would  be  deemed  an  encroachment  upon  the  independence  of  the 
State  in  which  the  persons  are  domiciled  or  the  property  is  situated, 
and  be  resisted  as  usurpation. 

Thus  the  State,  through  its  tribunals,  may  compel  persons  domi- 
ciled within  its  limits  to  execute,,  in  pursuance  of  their  contracts 
respecting  property  elsewhere  situated,  instruments  in  such  form 
and  with  such  solemnities  as  to  transfer  the  title,  so  far  as  such 
formalities  can  be  complied  with  ;  and  the  exercise  of  this  jurisdic- 
tion in  no  manner  interferes  with  the  supreme  control  over  the 
property  by  the  State  within  which  it  is  situated.  Penn  v.  Lord 
Baltimore,  1  Ves.  444;  Massie  v.  Watts,  6  Cranch,  148;  Watkins  v. 
Holman,  16  Pet.  25 ;  Corbett  v.  Nutt,  10  Wall.  464. 

So  the  State,  through  its  tribunals,  may  subject  property  situated 
within  its  limits  owned  by  non-residents  to  the  payment  of  the 
demand  of  its  own  citizens  against  them  ;  and  the  exercise  of  this 
jurisdiction  in  no  respect  infringes  upon  the  sovereignty  of  the 
State  where  the  owners  are  domiciled.  Every  State  owes  protection 
to  its  own  citizens  ;  and,  when  non-residents  deal  with  them,  it  is 
a  legitimate  and  just  exercise  of  authority  to  hold  and  appropriate 
any  property  owned  by  such  non-residents  to  satisfy  the  claims  of 
its  citizens.  It  is  in  virtue  of  the  State's  jurisdiction  over  the  prop- 
erty of  the  non-resident  situated  within  its  limits  that  its  tribunals 
can  inquire  into  that  non-resident's  obligations  to  its  own  citizens, 
and  the  inquiry  can  then  be  carried  only  to  the  extent  necessary  to 
control  the  disposition  of  the  property.  If  the  non-resident  have  no 
property  in  the  State,  there  is  nothing  upon  which  the  tribunals  can 
arljudicate. 

[The  nature  of  proceedings  in  rem  as  illustrated  by  various  cases 
is  then  considered  at  length,  the  case  of  Thompson  v.  Whitman,  18 
Wall.  457,  supra,  p.  844,  being  specially  referred  to.] 

Since  the  adoption  of  the  Fourteenth  Amendment  to  the  Federal 
Constitution,  the  validity  of  such  judgments  may  be  directly  ques- 
tioned, and  their  enforcement  in  the  State  resisted,  on  the  ground 


SECT.  II. J  PENNOYER   V.   NEFF.  1035 

that  proceedings  in  a  court  of  justice  to  determine  the  personal  rights 
and  obligations  of  parties  over  whom  that  court  has  no  jurisdic- 
tion do  not  constitute  due  process  of  law.  Whatever  difficulty  may 
be  experienced  in  giving  to  those  terms  a  definition  which  will  em- 
brace every  permissible  exertion  of  power  affecting  private  rights, 
and  exclude  such  as  is  forbidden,  there  can  be  -no  doubt  of  their 
meaning  when  applied  to  judicial  proceedings.  They  then  mean 
a  course  of  legal  proceedings  according  to  those  rules  and  principles 
which  have  been  established  in  our  systems  of  jurisprudence  for  the 
protection  and  enforcement  of  private  rights.  To  give  such  proceed- 
ings any  validity,  there  must  be  a  tribunal  competent  by  its  con- 
stitution —  that  is,  by  the  law  of  its  creation  —  to  pass  upon  the 
subject-matter  of  the  suit;  and,  if  that  involves  merely  a  determina- 
tion of  the  personal  liability  of  the  defendant,  he  must  be  brought 
within  its  jurisdiction  by  service  of  process  within  the  State,  or  his 
voluntary  appearance. 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff,  and 
cases  in  which  that  mode  of  service  may  be  considered  to  have  been 
assented  to  in  advance,  as  hereinafter  mentioned,  the  substituted 
service  of  process  by  publication,  allowed  by  the  law  of  Oregon  and 
by  similar  laws  in  other  States,  where  actions  are  brought  against 
non-residents,  is  effectual  only  where,  in  connection  with  process 
against  the  person  for  comniencing  the  action,  property  in  the  State 
is  brought  under  the  control  of  the  court,  and  subjected  to  its  dis- 
position by  process  adapted  to  that  purpose,  or  where  the  judgment 
is  sought  as  a  means  of  reaching  such  property  or  affecting  some 
interest  therein  ;  in  other  words,  where  the  action  is  in  the  nature 
of  a  proceeding  m  rein.  As  stated  by  Cooley  in  his  Treatise  on  Con- 
stitutional Limitations,  405,  for  any  other  purpose  than  to  subject 
the  property  of  a  non-resident  to  valid  claims  against  him  in  the 
State,  "  due  process  of  law  would  require  appearance  or  personal 
service  before  the  defendant  could  be  personally  bound  by  any  judg- 
ment rendered." 

.  It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem  is  one  taken 
directly  against  property,  and  has  for  its  object  the  disposition  of  the 
property,  without  reference  to  the  title  of  individual  claimants ; 
but,  in  a  larger  and  more  general  sense,  the  terms  are  applied  to 
actions  between  parties  where  the  direct  object  is  to  reach  and  dis- 
pose of  property  owned  by  them,  or  of  some  interest  therein.  Such  i 
are  cases  commenced  by  attachment  against  the  property  of  debtors, 
or  instituted  to  partition  real  estate,  foreclose  a  mortgage,  or  enforce 
a  lien.  So  far  as  they  affect  property  in  the  State,  they  are  sub- 
stantially proceedings  m  rem  in  the  broader  sense  which  we  have 
mentioned. 

It  is  hardly  necessary  to  observe,  that  in  all  we  have  said  we  have 
had  reference  to  proceedings  in  courts  of  first  instance,  and  to  their 
jurisdiction,   and   not   to   proceedings   in   an   appellate   tribunal    to 


1C33  PROTECTION    TO    CONTRACTS   AND    PROPERTY.       [CHAP.  XYI. 

review  the  action  of  suoh  courts.  The  latter  may  be  taken  upon 
such  notice,  personal  or  constructive,  as  the  State  creating  the 
tribunal  may  provide.  They  are  considered  as  rather  a  continuation 
of  the  original  litigation  than  the  commencement  of  a  new  action. 
Nations  et  al.  v.  Johnson  et  al.,  24  How.  195. 

It  follows  from -the  views  expressed  that  the  personal  judgment 
recovered  in  the  State  court  of  Oregon  against  the  plaintiff  herein, 
then  a  non-resident  of  the  State,  was  without  any  validity,  and  did 
not  authorize  a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this 
opinion,  it  is  proper  to  observe  that  we  do  not  mean  to  assert,  by  any- 
thing we  have  said,  that  a  State  may  not  authorize  proceedings  to 
determine  the  status  of  one  of  its  citizens  towards  a  non-resident, 
which  would  be  binding  within  the  State,  though  made  without 
service  of  process  or  personal  notice  to  the  non-resident.  The  juris- 
diction which  every  State  possesses  to  determine  the  civil  status  and 
capacities  of  all  its  inliabitants  involves  authority  to  prescribe  the 
conditions  on  which  proceedings  affecting  them  may  be  commenced 
and  carried  on  within  its  territory.  The  State,  for  example,  has 
absolute  right  to  prescribe  the  conditions  upon  which  the  marriage 
relation  between  its  own  citizens  shall  be  created,  and  the  causes  for 
which  it  may  be  dissolved.  One  of  the  parties  guilty  of  acts  for 
which,  by  the  law  of  the  State,  a  dissolution  may  be  granted,  may 
have  removed  to  a  State  where  no  dissolution  is  permitted.  The 
complaining  party  would,  therefore,  fail  if  a  divorce  were  sought 
in  the  State  of  the  defendant ;  and  if  application  could  not  be  made 
to  the  tribunals  of  the  complainant's  domicile  in  such  case,  and  pro- 
ceedings be  there  instituted  without  personal  service  of  process  or 
personal  notice  to  the  offending  party,  the  injured  citizen  would  be 
without  redress,     Bish.  INIarr.  and  Div.,  sect.  156. 

Neither  do  we  mean  to  assert  that  a  State  may  not  require  a  non- 
resident entering  into  a  partnership  or  association  within  its  limits, 
or  making  contracts  enforceable  there,  to  appoint  an  agent  or  repre- 
sentative in  the  State  to  receive  service  of  process  and  notice  in 
legal  proceedings  instituted  with  respect  to  such  partnership,  asso- 
ciation, or  contracts,  or  to  designate  a  place  where  such  service  may 
be  made  and  notice  given,  and  provide,  upon  their  failure,  to  make 
such  appointment  or  to  designate  such  place  that  service  may  be 
made  upon  a  public  officer  designated  for  that  purpose,  or  in 
some  other  prescribed  way,  and  that  judgments  rendered  upon  such 
service  may  not  be  binding  upon  the  non-residents  both  within  and 
without  the  State.  As  was  said  by  the  Court  of  Exchequer  in  Vallee 
V.  Dumergue,  4  Exch.  290,  ''  It  is  not  contrary  to  natural  justice 
that  a  man  who  has  agreed  to  receive  a  particular  mode  of  notifica- 
tion of  legal  proceedings  should  be  bound  by  a  judgment  in  which 
that  particular  mode  of  notification  has  been  followed,  even  though 
he  juay  not  have  actual  notice  of  them."     See  also  The  Lafayette 


SECT.  II.]  ARNDT   V.   GRIGGS.  1037 

Insurance  Co.  v.  French  et  al.,  18  How.  404,  and  Gillespie  v.  Com- 
mercial Mutual  Marine  Insurance  Co.,  12  Gray  (Mass.),  201.  ^'or 
do  we  doubt  that  a  State,  on  creating  corporations  or  other  institu- 
tions for  pecuniary  or  charitable  purposes,  may  provide  a  mode 
in  which  their  conduct  may  be  investigated,  their  obligations  en- 
forced, or  their  charters  revoked,  which  shall  require  other  than 
personal  service  upon  their  officers  or  members.  Parties  becoming 
members  of  such  corporations  or  institutions  would  hold  their  in- 
terest subject  to  the  conditions  prescribed  by  law.  Copin  v.  Adam- 
son,  Law  Rep.  9  Ex.  345. 

In  the  present  case  there  is  no  feature  of  this  kind,  and,  conse- 
quently, no  consideration  of  what  would  be  the  effect  of  such  legis- 
lation in  enforcing  the  contract  of  a  non-resident  can  arise.  The 
question  here  respects  only  the  validity  of  a  money  judgment  ren- 
dered in  one  State,  in  an  action  upon  a  simple  contract  against  the 
resident  of  another,  without  service  of  process  upon  him,  or  hia 
appearance  therein.  Judgment  affirmed} 

1  Mr.  Justice  Hcnt  delivered  a  dissenting  opinion. 

In  Akndt  v.  Griggs,  134  U.  S.  316  (1890),  the  question  was  considered  whetlier 
a  State  has  the  power  to  ])rovide  by  statute  that  the  title  to  real  estate  within  its  limits 
may  be  settled  and  determined  by  a  suit  in  which  the  defendant,  being  a  non-resident, 
is  brought  into  court  only  by  publication.  Mu.  Justice  Brewkr,  delivering  the 
opinion  of  the  court,  uses  this  language :  — 

"If  a  State  has  no  power  to  bring  a  non-resident  into  its  courts  for  any  purposes 
by  publication,  it  is  impotent  to  perfect  the  titles  of  real  estate  witin'n  its  limits  held  by 
its  own  citizens;  and  a  cloud  cast  upon  such  title  by  a  claim  of  a  non-resident  will 
remain  for  all  time  a  cloud,  unless  such  non-resident  shall  voluntarily  come  into  its 
courts  for  the  purpose  of  having  it  adjudicated.  Hut  no  such  imperfections  attend  the 
sovereignty  of  the  State.  It  has  control  over  property  within  its  limits;  and  the  con- 
dition of  ownership  of  real  estate  therein,  whether  the  owner  be  .>itraiiger  or  citizen, 
is  subjection  to  its  rules  concerning  the  holding,  the  transfer,  liability  to  obligations, 
private  or  public,  and  the  modes  of  establisiiing  titles  thereto.  It  cannot  bring  the  per- 
son of  a  non-resident  within  its  limits  —  its  process  goes  not  out  beyond  its  borders  — 
but  it  may  determine  the  e.xtent  of  his  title  to  real  estate  within  its  limits  ;  and  for 
the  purpose  of  such  determination  may  provide  any  reasonable  methods  of  imjjarting 
notice.  The  well-i)eing  of  every  community  recjuires  tliat  the  title  of  real  estate 
therein  shall  be  secure,  and  that  there  be  convenient  and  certain  methods  of  determin- 
ing any  unsettled  questions  respecting  it.  The  duty  of  accomplisiiing  this  is  local  in 
its  nature ;  it  is  not  a  matter  of  national  concern  or  veste<l  in  the  general  government ; 
it  remains  with  the  State ;  and  as  this  duty  is  one  of  the  State,  the  manner  of  discharg- 
ing it  must  be  determined  by  the  State,  and  no  proceeding  which  it  provides  can  be 
declared  invalid,  unless  in  conflict  with  some  special  inhibitions  of  the  Constituti<jn,  or 
against  natural  justice.  So  it  has  been  held  repeatedly  that  the  procedure  established 
by  the  State,  in  this  respect,  is  binding  upon  the  Federal  courts. 

"These  various  decisions  of  this  court  establish  that,  in  its  judgment,  a  State  has 
power  by  statute  to  provide  for  the  adjudication  of  titles  to  real  e.state  within  its  limits 
as  against  non-residents  who  are  brougiit  into  court  only  by  publication  ;  and  that  is 
all  that  is  necessary  to  sustain  the  validity  of  the  decree  in  question  in  this  case." 


1038      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

CUNNIUS   V.   KEADIXG   SCHOOL   DISTRICT. 
198  U.  S.  458,  25  Sup.  Ct.  Rep.  721.     1905. 

[This  was  an  appeal  from  a  judgment  of  the  Supreme  Court  of 
Pennsylvania,  sustaining  the  validity  of  a  state  statute  providing  fpr 
administration  upon  the  estates  of  persons  presumed  to  be  dead  by 
reason  of  long  absence.] 

Mr.  Justice  "White  delivered  the  opinion  of  the  court. 

In  their  ultimate  aspect  the  assignments  of  error  and  the  proposi- 
tions based  on  them  all  rest  on  the  assumption  that  the  State  of 
Pennsylvania  had  no  jurisdiction  over  the  person  or  property  of  the 
absentee,  and  therefore  the  proceedings  for  the  appointment  of  the 
administrator  and  all  acts  done  by  him  were  void  and  subject  to  col- 
lateral attack.  But  to  uphold  this  contention,  in  a  broad  sense,  would 
be  to  deny  the  possession  by  the  various  States  of  powers  which  they 
obviously  have  the  riglit  to  exert. 

It  will  be  observed  that  the  propositions  challenge  the  authority  of 
the  State  to  enact  the  statute  which  formed  the  basis  of  the  proceed- 
ings, not  only  because'it  is  insisted  that  there  was  a  complete  want 
of  power  to  do  so,  but  also  because,  even  if  the  State  had  power,  the 
method  of  procedure  which  the  statute  authorized  was  so  wanting  in 
notice  as  not  to  constitute  due  process  of  law.  We  shall  consider 
these  objections  separately : 

1st.  Was  the  State  statute  providing  for  the  administration  of  the 
property  of  an  absentee  under  the  circumstances  contemplated  by  the 
statute  so  beyond  the  scope  of  the  State's  authority  as  to  constitute  a 
want  of  due  process  of  law  within  the  intendment  of  the  Fourteenth 
Amendment  ?  That  the  Amendment  does  not  deprive  the  States  of 
their  police  power  over  subjects  within  their  jurisdiction  is  elemen- 
tary. The  question  then  is,  not  the  wisdom  of  the  statute,  but 
whether  it  was  so  beyond  the  scope  of  municipal  government  as  to 
amount  to  a  want  of  due  process  of  law.  The  solution  of  this  inquiry 
leads  us  therefore  to  consider  the  general  power  of  government  to 
provide  for  the  administration  of  the  estates  of  absentees  under  the 
conditions  enumerated  in  the  Pennsylvania  law.  We  do  not  pause  to 
demonstrate,  by  original  reasoning,  that  the  right  to  regulate  concern- 
ing the  estate  or  property  of  absentees  is  an  attribute,  which,  in  its 
very  essence,  must  belong  to  all  governments,  to  the  end  that  they 
may  be  able  to  perform  the  purposes  for  which  government  exists. 
This  is  not  done,  because  we  propose  rather  to  test  the  question  by 
ascertaining  how  far  such  authority  has  been  deemed  a  proper  gov- 
ernmental attribute  in  all  times  and  under  all  conditions.  If  it  be 
found  that  an  authority  of  that  character  has  ever  been  treated  as 
belonging  to  government  and  embraced  in  the  right  to  protect  and 


SECT.    II.]  CUNNIUS   V.    READING    DISTRICT.  1039 

foster  the  well-being  and  order  of  society,  it  must  follow  that  that 
which  has  at  all  times  been  conceded  to  be  within  the  power  of  gov- 
ernment, cannot,  in  reason,  be  said  to  be  so  beyond  the  scope  of 
governmental  authority  that  the  exertion  of  such  a  power  must  be 
held  to  be  a  want  of  due  process  of  law,  even  although  there  is  no 
constitutional  limitation  affecting  the  exercise  of  the  power.  Whilst 
it  may  be  that  under  the  Roman  Law  tiiere  was  no  complete  and 
coherent  system  provided  for  the  administration  of  the  estate  of  an 
absentee,  Toullier,  title  1,  No.  379 ;  Duranton,  title  1,  No.  384,  it  is 
nevertheless  certain  that  absence,  without  being  heard  from  for  a 
given  length  of  time,  authorized  the  appointment  of  a  curator  to  pro- 
tect and  administer  an  estate.  See  the  references  to  the  Roman  Law 
on  that  subject  in  Domat,  liv.  2,  tit.  2,  sect.  1,  No.  13.  That  in  the 
ancient  law  of  France,  under  varying  conditions,  the  same  govern- 
mental right  was  recognized  is  also  undoubted.  Journal  du  Palais 
Rep.  Verbo  Absence,  p.  20,  from  No.  9  to  25.  In  the  Code  Napoleon 
the  subject  is  especially  provided  for  under  a  title  treating  of  absence, 
in  which  ample  provision  is  made  for  the  administration  of  the  prop- 
erty of  the  absentee,  the  law  providing  for,  first,  the  provisional  and 
ultimately  the  final  distribution  of  such  property  in  accordance  with 
the  restrictions  and  regulations  which  the  title  provides.  Code  Nap., 
title  4,  article  112  et  seq.  Demolombe,  in  generally  treating  upon  the 
subject,  thus  expounds  the  fundamental  conceptions  from  which  the 
power  of  government  on  the  subject  is  derived  : 

"  Three  characters  of  interest  invoke  a  necessity  for  legislation 
concerning  this  difficult  and  important  subject.  First.  The  interest 
of  the  person  himself  who  has  disappeared.  If  it  is  true  that  gen- 
erally speaking  every  person  is  held  at  his  own  peril  to  watch  over 
his  own  property,  nevertheless  the  law  owes  a  duty  to  protect  those 
who  from  incapacity  are  unable  to  direct  their  affairs.  It  is  upon 
this  principle  of  public  order  that  the  appointment  of  tutors  to  minors 
or  curators  to  the  insane  rests.  It  is  indeed  natural  to  presume  that 
a  person  who  has  disappeared,  if  he  continues  to  exist,  is  prevented 
from  returning  by  some  obstacle  stronger  than  his  own  will,  and 
which,  therefore,  places  him  in  the  category  of  an  incapable  person, 
whose  interest  it  is  the  duty  of  the  law  to  protect.  And  it  is  for  this 
reason  that  the  provisions  as  to  absence  in  the  code  are  placed  in  the 
chapter  treating  of  the  status  of  persons  because  the  absentee,  in  the 
legal  sense,  is  a  person  occupying  a  peculiar  legal  status.  Second. 
The  duty  of  the  lawmaker  to  consider  the  rights  of  third  parties 
against  the  absentee,  especially  those  who  have  rights  which  would 
depend  upon  the  death  of  the  absentee.  Third.  Finally,  the  general 
interest  of  society  which  may  require  that  property  does  not  re- 
main abandoned  without  some  one  representing  it  and  without  an 
owner.  ..." 

Provisions  similar  in  character  to  those  of  the  Code  Napoleon  were 
incorporated  in  the  Civil  Code  of  Louisiana  of  1808  under  the  head 


1040      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

of  absentees  in  book  1  of  that  code,  defining  the  status  of  persons, 
and  such  provisions  have  been  in  force  from  that  day  to  the  present 
time.  Louisiana  Civil  Code,  article  47  et  seq.  The  provisions  of 
that  code  on  the  subject  were  referred  to  by  this  court  in  Scott  v. 
McNeal,  154  U.  S.  34,  41.  Under  the  law  of  England,  as  stated  in 
that  case,  a  presumption  of  death  arose  from  an  absence  of  seven 
years  without  being  heard  from ;  and  whilst  it  is  true,  as  we  shall 
hereafter  have  occasion  to  say,  that  such  presumption  was  not  con- 
clusive and  was  rebuttable,  nevertheless  the  very  fact  of  the  pre- 
sumption occasioned  by  absence,  irrespective  of  the  force  of  the 
presumption,  was  a  manifestation  of  the  power  to  give  legal  effect  to 
the  status  arising  from  absence. 

As  the  preceding  statement  shows  that  the  right  to  regulate  the 
estates  of  absentees,  both  in  the  common  and  civil  law,  has  ever  been 
recognized  as  being  within  the  scope  of  governmental  authority,  it 
must  follow  that  the  proposition  that  the  State  of  Pennsylvania  was 
wholly  without  power  to  legislate  concerning  the  property  of  an  ab- 
sentee, is  without  merit,  unless  it  be  that  the  authority  of  a  State  over 
the  subject  is  restrained  by  some  constitutional  limitation.  That  the 
constitution  of  Pennsylvania  does  not  put  such  a  restriction  is  fore- 
closed by  the  decision  of  the  Supreme  Court  of  Pennsylvania  in  this 
case.  But  it  is  insisted,  conceding  that  the  State  of  Pennsylvania  had 
power  to  provide  for  the  administration  of  the  property  of  an  ab- 
sentee, yet  that  authority  could  not  be  exerted  without  violating  the 
due  process  clause  of  the  Fourteenth  Amendment  if  the  administra- 
tive proceeding,  brought  into  play  under  the  exercise  of  the  authority, 
is  made  binding  upon  the  absentee  if  it  should  subsequently  develop 
that  he  was  alive  when  the  administration  was  initiated.  To  sustain 
this  proposition  numerous  decisions  of  State  courts  of  last  resort  are 
relied  upon,  which  are  enumerated  in  the  margin,  and  special  reliance 
is  placed  upon  the  decision  of  this  court  in  Scott  v.  McNeal,  supra. 

In  that  case  a  probate  court  in  the  State  of  Washington  had  issued 
letters  of  administration  upon  the  estate  of  a  person  who  had  disap- 
peared, and  proceeded  to  administer  his  estate  as  that  of  a  dead  per- 
son upon  the  presumption  of  death,  which  the  court  assumed  had 
arisen  from  his  absence.  There  was  no  statute  of  the  State  of  Wash- 
ington providing  for  an  administration  of  the  estate  of  an  absentee  as 
such,  and  creating  rights  and  safeguards  applicable  to  that  situation, 
as  distinct  from  the  general  law  of  the  State,  conferring  upon  courts 
of  probate  power  to  administer  the  estates  of  deceased  persons.  Re- 
ferring to  the  presumption  under  the  law  of  England  of  death  arising 
from  absence,  it  was  held  that  such  presumption  was  not  conclusive, 
and  was  absolutely  rebutted  by  proof  that  the  person  who  was  pre- 
sumed from  the  fact  of  absence  to  be  dead  was,  in  fact,  alive.  Having 
established  this  proposition,  it  was  then  held,  as  death  was  essential 
to  confer  jurisdiction  on  a  probate  court  to  administer  an  estate  as 
such,  the  fact  of  life  at  the  time  the  administration  was  initiated  con- 


SECT.   II.]  CUNNIUS   V,    READING   DISTRICT.  1041 

clnsively  rebutted  the  presumption  and  caused  the  court  to  be  wholly 
without  jurisdiction  to  administer  the  estate  of  a  person  who  was 
alive.  This  conclusion  was  abundantly  sustained  by  a  citation  of  the 
English  and  American  adjudications,  in  none  of  which  was  the  doc- 
trine upon  which  the  case  proceeded  more  cogently  stated  than  in  the 
opinion  of  this  court,  speaking  through  Chief  Justice  Marshall,  in 
Griffith  V.  Frazier,  8  Cr.  9,  23.  That  the  opinion,  however,  in  Scott 
V.  McNeal  was  not  intended  to  and  did  not  imply  that  the  States  were 
wholly  devoid  of  power  to  endow  their  courts  with  jurisdiction  under 
proper  conditions  to  administer  upon  the  estates  of  absentees,  even 
though  they  might  be  alive,  by  special  and  appropriate  proceedings 
applicable  to  that  condition  as  distinct  from  the  general  power  to  ad- 
minister the  estates  of  deceased  persons,  is  conclusively  shown  by  the 
opinion  in  Scott  v.  Mci^eal. 

True  it  is  that  there  are  some  general  expressions  found  in  the 
opinion  (p.  50),  which,  if  separated  from  the  context  of  the  opinion, 
might  lead  to  the  conclusion  that  it  was  held  that  a  State  was  abso- 
lutely without  power  to  provide  by  a  special  proceeding  for  the  ad- 
ministration and  care  of  the  property  of  an  absentee,  and  to  confer 
jurisdiction  on  its  courts  to  do  so,  irrespective  of  the  fact  of  death. 
But  these  general  expressions  are  necessarily  controlled  by  the  case 
which  was  before  the  court,  and  by  the  context  of  the  opinion,  which 
makes  it  clear  that  it  was  alone  decided  that  under  a  law  giving  juris- 
diction to  probate  courts  to  administer  the  estates  of  deceased  persons, 
even  although  a  rebuttable  presumption  existed  as  to  death  after  a 
certain  time,  that  if  such  presumption  was  subsequently  rebutted  by 
the  proof  of  the  fact  of  life  that  the  court,  whose  authority  depended 
upon  death,  was  devoid  of  jurisdiction. 

[The  decision  of  the  Pennsylvania  court  was  therefore  affirmed.] 


GOSHORN  V.   PURCELL. 

11  Ohio  State,  611.     1860. 

[Plaintiff  in  the  lower  court,  who  is  defendant  in  error  in  this 
court,  brought  action  to  have  a  deed  corrected  which  was  executed 
by  defendant  and  his  wife  for  the  conveyance  to  plaintiff  of 
property,  the  fee  simple  title  of  which  was  in  defendant's  wife. 
It  appeared  that  the  deed  did  not  contain  in  the  granting  clause 
thereof  the  name  of  defendant's  wife  as  grantor,  which  was  essen- 
tial by  the  law  of  Ohio  to  the  validity  of  the  deed  as  to  the  wife's 
title.  The  wife,  however,  joined  in  the  execution  of  the  deed. 
Subsequently   a   statute   was   passed   authorizing  tlie  correction  of 

66 


1042      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

conveyances  of  any  husband  and  wife  executed  and  intended  to 
convey  the  lands  of  the  wife,  although  not  executed  as  required  by 
law.  The  lower  court  granted  the  relief  asked,  and  on  appeal  to 
the  Supreme  Court  it  was  contended  that  the  State  statute  was 
invalid  because  in  violation  of  a  provision  in  the  constitution  of 
the  State  prohibiting  the  passing  of  retroactive  laws  "except 
for  the  purpose  of  authorizing  the  courts  to  carry  into  effect  the 
manifest  intention  of  parties  and  officers  by  curing  omissions, 
defects,"  etc.] 

Gholson,  J.  .  .  . 

The  argument  against  the  validity  of  the  law  assumes  that,  as 
applied  to  this  case,  it  interferes  with  vested  rights;  that  the 
married  woman  being  bound  by  no  contract,  and  her  act  being,  as 
the  law  then  stood,  void  and  inoperative,  her  right  to  the  property 
was  left  untouched,  and  that  to  take  it  away  by  subsequent  legisla- 
tion would  operate  as  a  mere  arbitrary  divestiture  of  title.  This, 
it  is  said,  even  a  provision  of  the  constitution  could  not  do.  Upon 
so  grave  an  inquiry  as  our  right,  in  any  case,  to  disregard  a  pro- 
vision of  the  constitution,  we  do  not  think  we  are  required  to  enter. 
For  we  think  that  the  case  which  the  argument  assumes  is  not  pre- 
sented. The  act  of  the  married  woman  may,  under  the  law,  have  been 
void  and  inoperative;  but,  in  justice  and  equity,  it  did  not  leave  her 
right  to  the  property  untouched.  She  had  capacity  to  do  the  act, 
in  a  form  prescribed  by  law  for  her  protection.  She  intended  to 
do  the  act  in  the  prescribed  form.  She  attempted  to  do  it,  and  her 
attempt  was  received  and  act.d  on  in  good  faith.  A  mistake,  sub- 
sequently discovered,  invalidates  the  act;  justice  and  equity  require 
that  she  should  not  take  advantage  of  that  mistake;  and  she  has, 
therefore,  no  just  right  to  the  property.  She  has  no  right  to  com- 
plain if  the  law,  which  prescribed  forms  for  her  protection,  shall 
interfere  to  prevent  her  reliance  upon  them  to  resist  the  demands  of 
justice.  She  has  no  vested  right  to  do  wrong.  "Foster  v.  Essex 
Bank,  16  Mass.  245,  273.  As  said  in  a  recent  case,  "laws  curing 
defects,  which  would  otherwise  operate  to  frustrate  what  must  be 
presumed  to  be  the  desire  of  the  party  affected,  cannot  be  consid- 
ered as  taking  away  vested  rights.  Courts  do  not  regard  rights  as 
vested  contrary  to  the  equity  and  justice  of  the  case."  State  v. 
Newark,  3  Dutcher,  185,  197.  "Retrospective  laws  that  violated  no 
principle  of  natural  justice,  but  that,  on  the  contrary,  were  in  fur- 
therance of  equity  and  good  morals,"  have  been  repeatedly  sustained 
in  this  State.  Trustees  of  Cuyahoga  Falls,  R.  E.  A.  v.  McCaughy, 
2  Ohio  St.  152,  155;  Butler  v.  The  City  of  Toledo,  5  Ohio  St.  225, 
231;  Lewis  y.  McElwain,  16  Ohio,  347,  355;  Johnson  v.  Bentley, 
id.  97,  103. 

[The  judgment  of  the  lower  court  is  therefore  affirmed.^] 

^  In  Bkinton  v.  Seevers.  12  Iowa,  389,  the  valitUty  of  a  State  statute  curing  defects 
in  acknowledgments  of  deeds  previously  recorded  was  in  question,  and  Wright,  J.. 
delivering  the  opinion  of  the  court,  uses  this  language  :  — 


SECT,  II.]  MATTINGLY   V.   DISTRICT   OF   COLUMBIA.  1043 

"  Our  conclusion  is,  that  the  act  is  not  repugnant  to  the  Constitution  upon  the 
ground  that  it  impairs  the  obligation  of  contracts.  It  validates,  rather  than  other- 
wise, the  contracts  in  question.  Satterlee  v.  Matthewsou,  2  Vet.  380;  Watson  v. 
Mercer,  8  lb.  88.  But  it  is  invalid  upon  the  ground  that,  as  applied  to  this  case,  it 
interferes  with  vested  rights.  It  appears  from  the  bill  and  exhibits  that  respondent 
purchased  the  property,  paid  his  nioiiey,  and  received  the  sheriff's  certificate,  before 
the  passage  of  the  curative  act  of  1858;  but  procured  the  sheriff's  deed  afterwards. 
If  the  purchase  had  been  subsequent  to  the  taking  effect  of  this  act,  tiien  he  wuiilil  be 
affected  by  its  curative  terms,  and  could  not  in  any  sense  claim  that  it  interfered  with 
vested  rights.  By  such  voluntary  purcliase,  witli  knowledge  of  the  law,  he  would 
stand  in  no  better  position  than  tiie  parties  to  the  deed.  When  he  purchases  and  parts 
with  his  money,  however,  before,  the  legislature  cannot,  by  afterwards  declaring  the 
title  of  a  tiiird  person  valid,  make  it  paramount  and  deprive  such  purchaser  of  all 
rights  acquired  under  the  sheriff's  sale." 

In  Mattingly  v.  District  of  Collmbia,  97  U.  S.  687  (1878),  it  was  urged  in  a 
bill  filed  in  the  Supreme  Court  for  the  District  of  Columbia,  that  the  board  of  public 
works  of  the  district  were  proceeding  witiiout  authority  to  assess  property  for  improve- 
ments on  the  abutting  street.  Mk.  Justice  Strong,  delivering  the  opinion  of  the 
court  on  appeal  from  tiiat  court,  uses  the  following  language  :  — 

"  We  do  not  propose  to  inquire  wiiether  tbe  charges  of  the  bill  are  well  founded. 
Such  an  inquiry  can  have  no  bearing  upon  tlie  case  as  it  now  .stands ;  for  were  it  con- 
ceded that  the  board  of  public  works  iiad  no  autiiority  to  do  the  work  that  was  done 
at  the  time  when  it  was  done,  and  consequently  no  authority  to  make  an  assessment 
of  a  part  of  its  cost  upon  the  complainants'  property,  or  to  assess  in  tlie  manner  in 
which  the  assessment  was  made,  the  concession  wDuld  not  dispose  of  the  case,  or  estab- 
lish that  the  complainants  have  a  right  to  the  equitable  relief  for  which  they  pray. 
There  has  been  congressional  legislation  since  1872,  the  effect  of  which  upon  the 
assessments  is  controlling.  There  were  also  acts  of  the  legislative  assembly  of  the 
District,  which  very  forcibly  imply  a  confirmation  of  the  acts  and  assessments  of  the 
hoard  of  which  the  bill  complains.  If  Congress  or  the  legislative  a.ssembly  had 
the  power  to  commit  to  the  board  the  duty  of  making  the  improvements,  and  to  pre- 
scribe that  the  assessments  should  be  made  in  the  manner  in  which  they  were  made, 
it  had  power  to  ratify  the  acts  which  it  might  have  authorized.  And  the  ratification, 
if  made,  was  equivalent  to  an  original  authority,  according  to  the  maxim,  Omnis  rat!- 
hnhitio  retrotrahitur  et  mandato  priori  aquifiaratxr.  Under  the  Constitution,  Congress 
had  power  to  exercise  exclusive  legislation  in  all  cases  whatsoever  over  the  District, 
and  this  includes  the  power  of  taxation.  Cohen  i-.  Virginia,  6  Wheat.  264.  Congress 
may  legislate  within  the  District,  respecting  the  people  and  property  therein,  as  may 
the  legislature  of  any  State  over  any  of  its  subordinate  municipalities.  It  may  there- 
fore cure  irregularities,  and  confirm  proceedings  which  without  the  confirmation  would 
he  void,  because  unauthorized,  provided  such  confirmation  docs  not  interfere  with  in- 
tervening rights.  Judge  Cooley,  in  view  of  the  authorities,  asserts  the  following  rule  : 
'If  the  thing  wanting,  or  which  failed  to  be  done,  and  which  constitutes  the  defect  in 
the  proceeding,  is  something  the  necessity  for  which  the  legislature  might  have  dis- 
pensed with  by  prior  statute,  then  it  is  not  beyond  the  power  of  the  legislature  to  dis- 
pense with  it  by  subsequent  statute.  And  if  the  irregularity  consists  in  doing  some 
act.  or  in  the  mode  or  manner  of  doing  some  act,  which  the  legislature  might  have 
made  immaterial  by  prior  law,  it  is  equally  competent  to  make  the  same  immaterial 
by  a  subsequent  law.'  Cooley,  Const.  Lim.  371.  This  rule,  we  tiiiuk,  is  accurately 
stated." 


1044  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

CAMPBELL  V.  HOLT. 
115  United  States,  620.     1885. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

[This  actioii  was  brought  in  a  district  court  of  Texas,  by  defendant 
in  error  to  recover  of  plaintiffs  in  error  as  administrators,  a  sura  of 
money  claimed  to  be  due  for  conversion  of  property  by  testator.  By 
way  of  defence  to  the  claim  the  State  statute  of  limitations  was  set 
up,  but  it  appeared  that  after  the  cause  of  action  became  barred  the 
State  adopted  a  new  constitution  in  which  it  was  declared  that  the 
statutes  of  limitations  of  civil  suits  were  suspended  by  the  so-called 
act  of  secession,  and  should  be  considered  as  suspended  until  the 
adoption  of  this  constitution.  The  bar  of  the  statute  of  limitations 
which  the  defendant  relied  on  accrued  during  the  Rebellion  and  be- 
fore' the  restoration  of  the  State  to  the  Union.  Judgment  was  ren- 
dered for  plaintiff  in  the  lower  court,  and  affirmed  on  appeal  to  the 
commissioners  of  appeal.  By  writ  of  error  the  case  is  brought  to  this 
court.] 

The  action  is  based  on  contract.  It  is  for  hire  of  the  negroes 
used  by  the  father,  and  for  the  money  received  for  the  land  of  his 
daughter,  sold  by  him.  The  allegation  is  of  indebtedness  on  this 
account,  and  tlie  plea  is  that  the  action  is  barred  by  the  statute  of 
limitations.  It  is  not  a  suit  to  recover  possession  of  real  or  personal 
])roperty,  but  to  recover  for  the  violation  of  an  implied  contract  to 
pay  money.  The  distinction  is  clear,  and,  in  the  view  we  take  of 
the  case,  important. 

By  the  long  and  undisturbed  possession  of  tangible  property,  real 
or  personal,  one  may  acquire  a  title  to  it,  or  ownership,  superior  in 
law  to  that  of  another,  who  may  be  able  to  prove  an  antecedent 
and,  at  one  time,  paramount  title.  This  superior  or  antecedent  title 
has  been  lost  by  the  laches  of  the  person  holding  it,  in  failing  within 
a  reasonable  time  to  assert  it  effectively ;  as,  by  resuming  the  posses- 
sion to  which  he  was  entitled,  or  asserting  his  right  by  suit  in  the 
proper  court.  What  the  primary  ownc  has  lost  by  his  laches,  the 
other  party  has  gained  by  continued  possession,  without  question  of 
his  right.  This  is  the  foundation  of  the  doctrine  of  prescriptAon^  a 
doctrine  which,  in  the  English  law,  is  mainly  applied  to  incorporeal 
hereditaments,  but  which,  in  the  Roman  law,  and  the  codes  founded 
on  it,  is  applied  to  property  of  all  kinds. 

Possession  has  always  been  a  means  of  acquiring  title  to  property. 
It  was  the  earliest  mode  recognized  by  mankind  of  the  appropriation 
of  anything  tangible  by  one  person  to  his  own  use,  to  the  exclusion 
of  others,  and  legislators  and  publicists  have  always  acknowledged 
its  efficacy  in  confirming  or  creating  title. 


SECT.  II.]  CAMPBELL   V.    HOLT.  1045 

The  English  and  American  statutes  of  limitation  have  in  many 
cases  the  same  effect,  and,  if  there  is  any  conflict  of  decisions  on  the 
subject,  the  weight  of  authority  is  in  favor  of  the  proposition  that, 
where  one  has  had  the  peaceable,  undisturbed,  open  possession  of 
real  or  personal  property,  with  an  assertion  of  his  ownership,  for  the 
period  which,  under  the  law,  would  bar  an  action  for  its  recovery  by 
the  real  owner,  the  former  has  acquired  a  good  title  —  a  title  superior 
to  that  of  t>he  latter,  whose  neglect  to  avail  himself  of  his  legal  rights 
has  lost  hira  his  title.  This  doctrine  has  been  repeatedly  asserted  in 
this  court.  Leffingwell  v.  Warren,  2  Black,  599;  Croxall  i^.Shererd, 
5  Wall.  268,  289  ;  Dickerson  v.  Colgrove,  100  U.  S.  578,  583;*Bieknell 
V.  Comstock,  113  U.  S.  149,  152.  It  is  the  doctrine  of  the  English 
courts,  and  has  been  often  asserted  in  the  highest  courts  of  the  States 
of  the  Union. 

It  may,  therefore,  very  well  be  held  that,  in  an  action  to  recover 
real  or  personal  property,  where  the  question  is  as  to  the  removal 
of  the  bar  of  the  statute  of  limitations  by  a  legislative  act  passed 
after  the  bar  has  become  perfect,  such  act  deprives  the  party  of  his 
property  without  due  process  of  law.  The  reason  is,  that,  by  the  law 
in  existence  before  the  repealing  act,  the  property  had  become  the 
defendant's.  Both  the  legal  title  and  the  real  ownership  had  become 
vested  in  him,  and  to  give  the  act  the  effect  of  transferring  this  title 
to  plaintiff,  would  be  to  deprive  him  of  his  property  without  due 
process  of  law. 

But  we  are  of  opinion  that  to  remove  the  bar  which  the  statute 
of  limitations  enables  a  debtor  to  interpose  to  prevent  the  payment  of 
his  debt  stands  on  very  different  ground. 

In  all  this  class  of  cases  the  ground  taken  is,  that  there  exists  a 
contract,  but,  by  reason  of  no  remedy  having  been  provided  for  its 
enforcement,  or  the  remedy  ordinarily  applicable  to  that  class  having, 
for  reasons  of  public  policy,  been  forbidden  or  withheld,  the  legislature, 
by  providing  a  remedy  where  none  exists,  or  removing  the  statutory 
obstruction  to  the  use  of  the  remedy,  enables  the  party  to  enforce 
the  contract,  otherwise  unobjectionable. 

Such  is  the  precise  case  before  iis.  The  implied  obligation  of  de- 
fendant's intestate  to  pay  his  child  for  the  use  of  her  property  re- 
mains. It  was  a  valid  contract,  implied  by  the  law  before  the  statute 
began  to  run  in  1866.  Its  nature  and  character  were  not  changed  by 
the  lapse  of  two  years,  though  the  statute  made  that  a  valid  defence 
to  a  suit  on  it.  But  this  defence,  a  purely  arbitrary  creation  of  the 
law,  fell  with  the  repeal  of  the  law  on  which  it  depended. 

It  is  much  insisted  that  this  right  to  defence  is  a  vested  right,  and 
a  right  of  property  which  is  protected  by  the  provisions  of  the 
Fourteenth  Amendment, 

It  is  to  be  observed  that  the  words  "  vested  right  • '  are  nowhere  used 
in  the  Constitution,  neither  in  the  original  instrument  nor  in  any  of 
the  amendments  to  it. 


1046 


PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 


We  understand  very  well  what  is  meant  by  a  vested  right  to  real 
estate,  to  personal  property,  or  to  incorporeal  hereditaments.  But 
when  we  get  beyond  this,  although  vested  rights  may  exist,  they  are 
better  described  by  some  more  exact  term,  as  the  phrase  itself  is  not 
one  found  in  the  language  of  the  Constitution. 

We  cevtaiidy  do  not  understand  that  a  right  to  defeat  a  just  debt 
by  the  statute  of  limitations  is  a  vested  right,  so  as  to  be  beyond 
legislative  power  in  a  proper  case.  The  statutes  of  limitation,  as 
often  asserted  and  especially  by  this  court,  are  founded  in  public 
needs  and  public  policy  — are  arbitrary  enactments  by  the  law-mak- 
ing power.  Tioga  R.  R.  Co.  v.  Blossburg  &  Corning  R.  R.  Co.,  20 
Wall.  137, 150.  And  other  statutes,  shortening  the  period  or  making 
it  longer,  which  is  necessary  to  its  oj^eration,  have  always  been  held 
to  be  within  the  legislative  power  until  the  bar  is  complete.  The 
right  does  not  enter  into  or  become  a  part  of  the  contract.  No  man 
promises  to  pay  money  with  any  view  to  being  released  from  that 
obligation  by  lapse  of  time.  It  violates  no  right  of  his,  therefore, 
when  the  legislature  says,  time  shall  be  no  bar,  though  such  was  the 
law  when  the  contract  was  made.  The  authorities  we  have  cited, 
especially  in  this  court,  show  that  no  right  is  destroyed  when  the 
law  restores  a  remedy  which  had  been  lost. 

We  are  unable  to  see  how  a  man  can  be  said  to  have  property  in 
the  bar  of  the  statute  as  a  defence  to  his  promise  to  pay.  In  the 
most*  liberal  extension  of  the  use  of  the  word  "  property,"  to  choses  in 
action,  to  incorporeal  rights,  it  is  new  to  call  the  defence  of  lapse  of 
time  to  the  obligation  to  pay  money,  property.  It  is  no  natural  right. 
It  is  the  creation  of  conventional  law. 

We  can  understand  a  right  to  enforce  the  payment  of  a  lawful 
debt.  The  Constitution  says  that  no  State  shall  pass  any  law  im- 
pairing this  obligation.  But  we  do  not  understand  the  right  to 
satisfy  that  obligation  by  a  protracted  failure  to  pay.  We  can  see 
no  right  which  the  promisor  has  in  the  law  which  permits  him  to 
plead  lapse  of  time  instead  of  payment,  which  shall  prevent  the 
legislature  from  repealing  that  law,  because  its  effect  is  to  make  him 
fulfil  his  honest  obligations. 

[The  court  follows  the  Texas  decisions  in  sustaining  the  validity 
of  the  constitutional  provision  repealing  all  statutes  of  limitation 
formerly  in  existence ;  and  the  judgment  of  the  lower  court  is 
affirmed.^] 

^  Mr.  JrsTiCE  Bradley  delivered  a  dissenting  opinion,  in  which  Mr.  Justicb 
Harlan  concurred. 


SECT.  II.]  LOUISIANA    V.   MAYOR   OF   NEW   ORLEANS.  1047 


LOUISIANA  EX  REL.   FOLSOM  v.   MAYOR  OF  NEW 
ORLEANS. 

109  United  States,  285.     1883. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  relators  are  the  holders  of  two  judgments  against  the  city 
of  New  Orleans,  one  for  $26,850,  the  other  for  $2,000.  Both  were 
recovered  in  the  courts  of  Louisiana  —  the  first  in  June,  1877,  by  the 
relators  ;  the  second  in  June,  1874,  by  parties  who  assigned  it  to 
them.  Both  judgments  were  for  damages  done  to  the  property  of 
the  plaintiffs  therein  by  a  mob  or  riotous  assemblage  of  people  in 
the  year  1873.  A  statute  of  the  State  made  municipal  corporations 
liable  for  damages  thus  caused  within  their  limits.  Rev.  Stats,  of 
La.,  1870,  sect.  2453. 

The  judgments  were  duly  registered  in  the  office  of  the  comptroller 
of  the  city,  pursuant  to  the  provisions  of  the  act  known  as  No.  5  of 
the  extra  session  of  1870,  and  the  present  proceeding  was  taken  by 
the  relators  to  compel  the  authorities  of  the  city  to  provide  for  their 
payment.  At  the  time  the  injuries  complained  of  were  committed, 
and  one  of  the  judgments  was  recovered,  the  city  of  New  Orleans 
was  authorized  to  levy  and  collect  a  tax  upon  property  within  its 
limits  of  one  dollar  and  seventy-five  cents  upon  every  one  hundred 
dollars  of  its  assessed  value.  At  the  time  the  other  judgment  was 
recovered  this  limit  of  taxation  was  reduced  to  one  dollar  and  fifty 
cents  on  every  one  hundred  dollars  of  the  assessed  value  of  the 
property.  By  the  constitution  of  the  State,  adopted  in  1879,  the 
power  of  the  city  to  impose  taxes  on  property  within  its  limits  was 
further  restricted  to  ten  mills  on  the  dollar  of  the  valuation. 

The  effect  of  this  last  limitation  is  to  prevent  the  relators,  who  are 
not  allowed  to  issue  executions  against  the  city,  from  collecting  their 
judgments,  as  the  funds  receivable  from  the  tax  thus  authorized  to  be 
levied  are  exhausted  by  the  current  expenses  of  the  city,  which  must 
first  be  met. 

The  relators  sought  in  the  State  courts  to  compel  a  levy  by  the 
city  of  taxes  to  meet  their  judgments  at  the  rate  permitted  when  the 
damages  were  done  for  which  the  judgments  were  obtained.  They 
contended  that  the  subsequent  limitation  imposed  upon  its  powers 
violated  that  clause  of  the  Federal  Constitution  which  prohibits  a 
State  from  passing  a  law  impairing  the  obligation  of  contracts,  and 
also  that  clause  of  the  Fourteenth  Amendment  which  forbids  a  State 
to  deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law.  The  Supreme  Court  of  the  State,  reversing  the  lower  court, 
decided  against  the  relators,  and  the  same  contention  is  renewed 
here. 


f 


1048  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

The  right  to  reimbursement  for  damages  caused  by  a  mob  or  riot- 
ous assemblage  of  people  is  not  founded  upon  any  contract  between 
the  city  and  the  sufferers.  Its  liability  for  the  damages  is  created 
by  a  law  of  the  legislature,  and  can  be  withdrawn  or  limited  at  its 
pleasure.  ^Municipal  corporations  are  instrumentalities  of  the  State 
for  the  convenient  administration  of  government  within  their  limits. 
They  are  invested  with  authority  to  establish  a  police  to  guard 
against  disturbance ;  and  it  is  their  duty  to  exercise  their  authority 
so  as  to  prevent  violence  from  any  cause,  and  particularly  from  mobs 
and  riotous  assemblages.  It  has,  therefore,  been  generally  consid- 
ered as  a  just  burden  cast  upon  them  to  require  them  to  make  good 
any  loss  sustained  from  the  acts  of  such  assemblages  which  they 
should  have  repressed.  The  imposition  has  been  supposed  to  create, 
in  the  holders  of  property  liable  to  taxation  within  tlieir  limits,  au 
interest  to  discourage  and  prevent  any  movements  tending  to  such 
violent  proceedings.  But,  however  considered,  the  imposition  is 
simply  a  measure  of  legislative  policy,  in  no  respect  resting  upon 
contract,  and  subject,  like  all  other  measures  of  policy,  to  any 
change  the  legislature  may  see  fit  to  make,  either  in  the  extent  of 
the  liability  or  in  the  means  of  its  enforcement.  And  its  character 
is  not  at  all  changed  by  the  fact  that  the  amount  of  loss,  in  pecuniary 
estimation,  has  been  ascertained  and  established  by  the  judgments 
rendered.  The  obligation  to  make  indemnity  created  by  the  statute 
has  no  more  element  of  contract  in  it  because  merged  in  the  judg- 
ments than  it  had  previously.  The  term  "  contract  "  is  used  in  the 
Constitution  in  its  ordinary  sense,  as  signifying  the  agreement  of 
two  or  more  minds,  for  considerations  proceeding  from  one  to  the 
other,  to  do,  or  not  to  do,  certain  acts.  Mutual  assent  to  its  terms 
is  of  its  very  essence. 

A  judgment  for  damages,  estimated  in  money,  is  sometimes  called 
by  text-writers  a  specialty  or  contract  of  record,  because  it  estab- 
lishes a  legal  obligation  to  pay  the  amount  recovered ;  and,  by  a 
fiction  of  law,  a  promise  to  pay  is  implied  where  such  legal  obliga- 
tion exists.  It  is  on  this  principle  that  an  action  ex  contractu  will 
lie  upon  a  judgment.  Chitty  on  Contracts,  Perkins'  ed.,  87.  But 
this  fiction  cannot  convert  a  transaction  wanting  the  assent  of  parties 
into  one  which  necessarily  implies  it.  Judgments  for  torts  are 
usually  the  result  of  violent  contests,  and,  as  observed  by  the  court 
below,  are  imposed  upon  the  losing  party  by  a  higher  authority 
against  his  will  and  protest.  The  prohibition  of  the  Federal  Con- 
stitution was  intended  to  secure  the  observance  of  good  faith  in  the 
stipulation  of  parties  against  any  State  action.  "Where  a  transaction 
is  not  based  upon  any  assent  of  parties,  it  cannot  be  said  that  any 
faith  is  pledged  with  respect  to  it ;  and  no  case  arises  for  the  opera- 
tion of  the  prohibition.  Garrison  v.  City  of  Xew  York,  21  Wall.  203. 
There  is,  therefore,  nothing  in  the  liabilities  of  the  city  by  reason 
of  which  the  relators  recovered  their  judgments,  that  precluded  the 


i 


SECT.  11.]  LOUISIANA    V.    MAYOR   OF   NEW    ORLEANS.  1049 

State  from  changing  the  taxing  power  of  the  city,  even  though  the 
taxation  be  so  limited  as  to  postpone  tlae  payment  of  the  judgments. 

The  clause  of  the  Fourteenth  Amendment  cited  is  equally  inopera- 
tive to  restrain  the  action  of  the  State.  Conceding  that  the  judg- 
ments, though  founded  upon  claims  to  indemnity  for  unlawful  acts 
of  mobs  or  riotous  assemblages,  are  property  in  the  sense  that  are 
capable  of  ownership,  and  may  have  a  pecuniary  value,  the  relators 
cannot  be  said  to  be  deprived  of  them  so  long  as  they  continue  an 
existing  liability  against  the  city.  Although  the  present  limitation  of 
the  taxing  power  of  the  city  may  prevent  the  receipt  of  sufficient  funds 
to  pay  the  judgments,  the  legislature  of  the  State  may,  upon  proper 
appeal,  make  other  provision  for  their  satisfaction.  The  judgments 
may  also,  perhaps,  be  used  by  the  relators  or  their  assigns  as 
offsets  to  demands  of  the  city  ;  at  least  it  is  possible  that  they  may 
be  available  in  various  ways.  Be  this  as  it  may,  the  relators  have  no 
such  vested  right  in  the  taxing  power  of  the  city  as  to  render  its 
diminution  by  the  State  to  a  degree  affecting  the  present  collection 
of  their  judgments  a  deprivation  of  their  property  in  the  sense  of 
the  constitutional  prohibition.  A  party  cannot  be  said  to  be  deprived 
of  his  property  in  a  judgment  because  at  the  time  he  is  unable  to 
collect  it. 

The  cases  in  which  we  have  held  that  the  taxing  power  of  a  muni- 
cipality continues,  notwithstanding  a  legislative  act  of  limitation  or 
repeal,  are  founded  upon  contracts ;  and  decisions  in  them  do  not 
rest  upon  the  principle  that  the  party  affected  in  the  enforcement 
of  his  contract  rights  has  been  thereby  deprived  of  any  property, 
but  upon  the  principle  that  the  remedies  for  the  enforcement  of  his 
contracts  existing  when  they  were  made  have  been  by  such  legisla- 
tion impaired.  The  usual  mode  in  which  municipal  bodies  meet  their 
pecuniary  contracts  is  by  taxation.  And  when,  upon  the  faith  that 
such  taxation  will  be  levied,  contracts  have  been  made,  the  constitu- 
tional inhibition  has  been  held  to  restrain  the  State  from  repealing 
or  diminishing  the  power  of  the  corporation  so  as  to  deprive  the 
holder  of  the  contract  of  all  adequate  and  efficacious  remedy.  As 
we  have  often  said,  the  power  of  taxation  belongs  exclusively  to  the 
legislative  department  of  the  government,  and  the  extent  to  which 
it  shall  be  delegated  to  a  municipal  body  is  a  matter  of  discretion, 
and  may  be  limited  or  revoked  at  the  pleasure  of  the  legislature. 
But,  as  we  held  in  Wolff  v.  New  Orleans,  103  U.  S.  358,  and  re- 
peated in  Louisiana  v.  Pilsbury,  105  U.  S.  278,  in  both  cases  by  the 
unanimous  judgment  of  the  court,  the  legislation  in  that  respect  is 
subject  to  tins  qualification,  which  attends  all  State  legislation,  that 
it  "  shall  not  conflict  with  the  prohibitions  of  the  Constitution  of 
the  United  States,  and,  among  other  things,  shall  not  operate  directly 
upon  contracts  of  the  corporation,  so  as  to  impair  their  obligation 
by  abrogating  or  lessening  the  means  of  their  enforcement.  Legis- 
lation producing  this  latter  result,  not  indirectly  as  a  consequence 


1050      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

of  legitimate  measures  taken,  as  will  sometimes  happen,  but  directly 
by  operating  upon  those  means,  is  prohibited  by  the  Constitution,  and 
must  be  disregarded  —  treated  as  if  never  enacted  —  by  all  courts 
recognizing  the  Constitution  as  the  paramount  law  of  the  land. 
This  doctrine  has  been  repeatedly  asserted  by  this  court  when  at- 
tempts have  been  made  to  limit  the  power  of  taxation  of  a  municipal 
body,  upon  the  faith  of  which  contracts  have  been  made,  and  by 
means  of  which  alone  they  could  be  performed.  .  .  .  However  great 
the  control  of  the  legislature  over  the  corporation  while  it  is  in 
existence,  it  must  be  exercised  in  subordination  to  the  principle 
which  secures  the  inviolability  of  contracts." 

This  doctrine  can  have  no  application  to  claims  against  munici- 
pal corporations,  founded  upon  torts  of  the  character  mentioned. 
Whether  or  not  the  State,  in  so  limiting  the  power  of  the  city  to 
raise  funds  by  taxation  that  it  cannot  satisfy  all  claims  against  it 
recognized  by  law,  though  not  resting  upon  contract,  does  a  wrong 
to  the  relators,  which  a  wise  policy  and  a  just  sense  of  public  honor 
should  not  sanction,  is  not  a  question  upon  which  this  court  can  pass. 
If  the  action  of  the  State  does  not  fall  within  any  prohibition  of  the 
Federal  Constitution,  it  lies  beyond  the  reach  of  our  authority. 

The  question  of  the  effect  of  legislation  upon  the  means  of  enforc- 
ing an  ordinary  judgment  of  damages  for  a  tort,  rendered  against  the 
person  committing  it,  in  favor  of  the  person  injured,  may  involve 
other  considerations,  and  is  not  presented  by  the  case  before  us. 

Judgment  affirmed} 


Section  III.  —  Eminent  Domain. 


MUGLER  V.    KANSAS. 

123  United  States,  623.     1887. 
[See  supra,  p.  938.] 


PUMPELLY  V.   GREEN  BAY   COMPANY. 

13  Wallace,  166.     1871. 

[Action  was  brought  in  the  Circuit  Court  of  the  United  States 
to   recover    damages   against   defendant  company   for  overflowing 

^  Mr.  JrsTicE  Bradley  delivered  a  dissenting  opinion. 


SECT.  Ill]  PUMPELLY    V.    GKEEN    BAY    COMPANY.  1051 

plaintiff's  land  by  means  of  a  dam  erected  across  Fox  River  in  Wis- 
consin. Defendant  attempted  to  justify  under  authority  from  the 
legislature  of  Wisconsin  authorizing  the  construction  of  such  a 
dam;  and  this  defence  being  held  good  on  demurrer,  plaintiff 
brought  the  case  to  this  court  by  writ  of  error.] 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Counsel  for  the  defendant,  with  becoming  candor,  argue  that  the 
damages  of  which  the  plaintiff  complains  are  such  as  the  State  had 
a  right  to  inflict  in  improving  the  navigation  of  the  Fox  River, 
without  making  any  compensation  for  them. 

This  requires  a  construction  of  the  constitution  of  Wisconsin; 
for  though  the  Constitution  of  the  United  States  provides  that 
private  property  shall  not  be  taken  for  public  use  without  just 
compensation,  it  is  well  settled  that  this  is  a  limitation  on  the 
power  of  the  Federal  government,  and  not  on  the  States.  The 
constitution  of  Wisconsin,  however,  has  a  provision  almost  iden- 
tical in  language,  viz. :  that  "  the  property  of  no  person  shall  be 
taken -for  public  use  without  just  compensation  therefor."  Sec. 
13,  Article  1.  Indeed  this  limitation  on  the  exercise  of  the  right 
of  eminent  domain  is  so  essentially  a  part  of  American  constitu- 
tional law  that  it  is  believed  that  no  State  is  now  without  it,  and 
the  only  question  that  we  are  to  consider  is  whether  the  injury  to 
plaintiff's  property,  as  set  forth  in  his  declaration,  is  within  its 
protection. 

The  declaration  states  that,  by  reason  of  the  dam,  the  water  of 
the  lake  was  so  raised  as  to  cause  it  to  overflow  all  his  land,  and 
that  the  overflow  remained  continuously  from  the  completion  of 
the  dam,  in  the  year  18G1,  to  the  commencement  of  the  suit  in  the 
year  1867,  and  the  nature  of  the  injuries  set  out  in  the  declaration 
are  such  as  show  that  it  worked  an  almost  complete  destruction  of 
the  value  of  the  land. 

The  argument  of  the  defendant  is  that  there  is  no  taking  of  the 
land  within  the  meaning  of  the  constitutional  provision,  and  that 
the  damage  is  a  consequential  result  of  such  use  of  a  navigable 
stream  as  the  government  had  a  right  to  for  the  improvement  of  its 
navigation. 

It  would  be  a  very  curious  and  unsatisfactory  result,  if  in  con- 
struing a  provision  of  constitutional  law,  always  understood  to  have 
been  adopted  for  protection  and  security  to  the  rights  of  the  indi- 
vidual as  against  the  government,  and  which  has  received  the  com- 
mendation of  jurists,  statesmen,  and  commentators  as  placing  the 
just  principles  of  the  common  law  on  that  subject  beyond  the  power 
of  ordinary  legislation  to  change  or  control  them,  it  shall  be  held 
that  if  the  government  refrains  from  the  absolute  conversion  of 
real  property  to  the  uses  of  the  public  it  can  destroy  its  value 
entirely,  can  inflict  irreparable  and  permanent  injury  to  any  extent, 


1052      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVT, 

can,  in  effect,  subject  it  to  total  destruction  without  making  any 
compensation,  because,  in  the  narrowest  sense  of  that  word,  it  is  not 
tahen  for  the  public  use.  Such  a  construction  would  pervert  the 
constitutional  provision  into  a  restriction  upon  the  rights  of  the 
citizen,  as  those  rights  stood  at  the  common  law,  instead  of  the  gov- 
ernment, and  make  it  an  authority  for  invasion  of  private  right 
under  the  pretext  of  the  public  good,  which  had  no  warrant  in  the 
laws  or  practices  of  our  ancestors. 

AVe  are  not  unaware  of  the  numerous  cases  in  the  State  courts  in 
which  the  doctrine  has  been  successfully  invoked  that  for  a  conse- 
quential injury  to  the  property  of  the  individual  arising  from  the 
prosecution  of  improvements  of  roads,  streets,  rivers,  and  other 
highways,  for  the  public  good,  there  is  no  redress;  and  we  do  not 
deny  that  the  principle  is  a  sound  one,  in  its  proper  application,  to 
many  injuries  to  property  so  originating.  And  when,  in  the  exer- 
cise of  our  duties  here,  we  shall  be  called  upon  to  construe  other 
State  constitutions,  we  shall  not  be  unmindful  of  the  weight  due  to 
the  decisions  of  the  courts  of  those  States.  But  we  are  of  opinion 
that  the  decisions  referred  to  have  gone  to  the  uttermost  limit  of 
sound  judicial  construction  in  favor  of  this  principle,  and,  in  some 
cases,  beyond  it,  and  that  it  remains  true  that  where  real  estate  is 
actually  invaded  by  superinduced  additions  of  water,  earth,  sand, 
or  other  material,  or  by  having  any  artificial  structure  placed  on 
it,  so  as  to  effectually  destroy  or  impair  its  usefulness,  it  is  a  tak- 
ing, within  the  meaning  of  the  Constitution,  and  that  this  proposi- 
tion is  not  in  conflict  with  the  weight  of  judicial  authority  in  this 
country,  and  certainly  not  with  sound  principle.  Beyond  this  we 
do  not  go,  and  this  case  calls  us  to  go  no  further. 

We  are,  therefore,  of  opinion  that  the  second  plea  set  up  no 
valid  defence,  and  that  the  demurrer  to  it  should  have  been 
sustained. 


CENTRAL   BRIDGE   CORPORATION  v.  CITY  OF  LOWELL. 

4  Gray,  474.     1855. 

[The  plaintiff  corporation  sought  to  enjoin  the  defendant  city 
from  proceeding  under  the  authority  of  a  statute  of  Massachusetts 
to  enter  upon,  take,  and  lay  out  as  a  public  highway  a  bridge  already 
constructed  by  the  plaintiff  under  a  charter  granted  by  the  State 
authorizing  the  corporation  to  construct  such  bridge  and  receive 
toll  and  income  therefrom.] 


I 


SECT.  III.]         CENTRAL   BRIDGE   CORPORATION   V.    LOWELL.  1053 

BiGELOW,  J.,  delivered  the  opinion  of  tlie  court. 

The  whole  controversy  in  the  present  case  turns  upon  the  validity 
of  the  acts  of  the  defendants,  by  which  they  proceeded  in  July, 
1855,  to  take,  lay  out,  and  appropriate  the  bridge  constructed  and 
owned  by  the  plaintiffs,  as  and  for  a  town  way.  This  was  done  in 
pursuance  of  a  power  expressly  granted  to  the  defendants  by  St. 
1853,  c.  356,  §  3;  and  it  is  clear  that  if  this  act  was  originally 
valid  and  still  continues  in  force,  and  the  defendants  have  done 
nothing  by  which  they  have  surrendered  or  lost  the  power  and 
authority  conferred  upon  them  by  it,  their  doings  have  been  legal, 
and  there  is  no  ground  for  maintaining  this  suit. 

1.  The  plaintiffs  rely  upon  various  objections  to  defeat  and  annul 
these  proceedings,  the  first  and  most  important  of  which  is,  that 
the  section  of  the  statute  above  cited,  which  gives  to  the  defendants 
the  right  to  enter  upon  and  take  the  bridge  of  the  plaintiffs,  and 
lay  it  out  as  a  town  way,  is  unconstitutional  and  void.  This  posi- 
tion is  based  on  the  familiar  principle,  that  the  act  incorporating 
the  plaintiffs  is  a  contract  with  the  government,  which  it  cannot 
legitimately  impair  or  destroy.  Starting  with  this,  the  plaintiffs 
then  contend  that  the  effect  and  necessary  consequence  of  the 
power  given  to  the  defendants  by  the  act  in  question  is  to  infringe 
on  the  obligation  of  this  contract,  because  it  takes  away  their  fran- 
chise and  deprives  them  of  the  rights  and  privileges  conferred  upon 
them  by  their  original  act  of  incorporation. 

It  is  true  that  the  plaintiffs,  by  accepting  and  acting  under  the 
act  by  which  they  were  created,  and  by  advancing  their  money  and 
building  the  bridge  upon  the  faith  of  it,  are  entitled  to  insist  that 
the  legislature  shall  not  invalidate  or  disregard  the  power  granted 
to  them  or  the  right  created  and  vested  by  their  charter.  But  it 
is  also  true  that  their  powers  and  privileges,  including  everything 
which  constitutes  their  franchise,  are  held  and  enjoyed  in  the 
same  manner  and  by  the  like  tenure  as  all  other  property  and  every 
species  of  valuable  right  and  interest  are  possessed  and  owned 
under  our  Constitution  and  laws.  They  can  claim  no  special  exemp- 
tion or  privilege  for  their  franchise.  It  is  subject  to  the  same 
sovereign  right  of  eminent  domain,  by  which  the  property  and 
rights  of  all  subjects  and  individuals  are  liable  to  be  taken  and 
appropriated  to  a  public  use,  in  the  manner  provided  in  the  Consti- 
tution, whenever  the  legislature  shall  deem  that  the  public  exi- 
gencies require  it.  This  principle  is  too  well  settled  by  the  highest 
authority  to  be  now  open  to  question.  West  River  Bridge  v.  Dix, 
6  How.  507;  Richmond,  Fredericksburg,  &  Potomac  Railroad  v. 
Louisa  Railroad,  13  How.  83;  Boston  &  Lowell  Railroad  v. 
Salem  &  Lowell  Railroad,  2  Gray,  So;  Springfield  r.  Connecticut 
River  Railroad,  4  Cush.  63.  In  the  case  first  cited,  it  was  fully 
recognized  and  applied  to  facts  very  similar  to  those  in  the  case  at 


1054      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   fcHAP.  XVI. 

bar.  It  was  there  held,  that  a  franchise  to  buikl  and  maintain  a 
bridge  might  be  taken  and  appropriated  to  a  public  use,  and  that 
the  right  of  a  corporation,  under  a  charter  from  a  State  legislature, 
to  erect  and  keep  up  a  bridge  and  take  tolls  thereon,  might  be  taken 
for  a  highway  in  the  due  exercise  of  the  right  of  eminent  domain. 

Nor  is  the  principle  thus  recognized  any  violation  of  justice  or 
sound  policy,  nor  does  it  in  any  degree  tend  to  impair  the  obliga- 
tion or  infringe  upon  the  sanctity  of  contracts.  It  rests  on  the 
basis  that  public  convenience  and  necessity  are  of  paramount  im- 
portance and  obligation,  to  which,  when  duly  ascertained  and 
declared  by  the  sovereign  authority,  all  minor  considerations  and 
private  rights  and  interests  must  be  held,  in  a  measure  and  to  a 
certain  extent,  subordinate.  By  the  grant  of  a  franchise  to  indi- 
viduals for  one  public  purpose,  the  legislature  do  not  forever  debar 
themselves  from  giving  to  others  new  and  paramount  rights  and 
privileges  when  required  by  public  exigencies,  although  it  may  be 
necessary  in  the  exercise  of  such  rights  and  privileges  to  take  and 
appropriate  a  franchise  previously  granted.  If  such  were  the  rule, 
great  public  improvements,  rendered  necessary  by  the  increasing 
wants  of  society  in  the  development  of  civilization  and  the  progress 
of  the  arts,  might  be  prevented  by  legislative  grants  which  were 
wise  and  expedient  in  their  time,  but  which  the  public  necessities 
have  outgrown  and  rendered  obsolete.  The  only  true  rule  of 
policy,  as  well  as  of  law,  is  that  a  grant  for  one  public  purpose 
must  yield  to  another  more  urgent  and  important,  and  this  can  be 
effected  without  any  infringement  on  the  constitutional  rights  of 
the  subject.  If  in  such  cases  suitable  and  adequate  provision  is 
made  by  the  legislature  for  the  compensation  of  those  whose  prop- 
erty or  franchise  is  injured  or  taken  away,  there  is  no  violation  of 
public  faith  or  private  right.  The  obligation  of  the  contract  created 
by  the  original  charter  is  thereby  recognized.  The  property  of 
individuals  in  it,  and  the  rights  acquired  by  them  under  it,  like 
other  property  appropriated  for  public  uses,  form  proper  subjects 
for  indemnity  in  damages  under  the  provision  in  the  tenth  article 
of  our  Declaration  of  Rights. 

These  well-established  principles  leave  no  room  for  doubt  as  to 
the  validity  and  binding  force  of  the  provision  contained  in  St. 
1853,  c.  356,  §  3,  under  which  the  acts  set  forth  in  the  bill  have 
been  done  by  the  defendants.  The  intent  of  the  legislature  to 
empower  them  to  enter  upon  and  take  the  bridge  of  the  plaintiffs 
for  a  public  use  is  unequivocally  expressed;  and  adequate  provision 
is  made,  by  which  the  plaintiffs  can  seek  and  obtain  compensation 
for  all  injuries  and  damage  Avhich  they  may  sustain  by  reason  of 
such  appropriation. 

[Other  questions  are  considered,  and  the  bill  of  the  plaintiff  is 
dismissed.] 


SECT.  III.]  PIERCE   V.    DREW.  1055 


PIERCE   V.    DREW. 
136  Massachusetts,  75.     1883. 

Devens,  J.  The  facts  admitted  by  the  demurrer  may  be  thus 
stated:  The  plaintiffs  own  land  on  a  certain  street  or  public  high- 
way in  Brookline;  they  also  own  a  fee  in  the  half  of  the  street 
which  is  next  to  their  abutting  land. 

The  defendants  are  the  selectmen  of  Brookline,  and,  on  the  api>li- 
cation  of  the  American  Rapid  Telegraph  Company,  a  corporation 
organized  under  the  St.  of  1874,  c.  165  (Pub.  Sts.  c.  106,  §  14),  for 
the  transmission  of  intelligence  by  electricity,  are  about  to  grant 
to  that  company,  under  the  Pub.  Sts.  c.  109,  a  location  along  said 
highway  for  their  posts,  wires,  &c.  The  bill  seeks  to  restrain  tlie 
defendants,  upon  the  ground  that  the  last-named  statute  is  uncon- 
stitutional. 

[The  substance  of  Pub.  Sts.  c.  109,  relating  to  the  erection  of 
telegraph  poles  in  highways  is  summarized.  The  essential  pro- 
visions involved  in  the  opinion  are  sufficiently  stated  hereafter.] 

That  it  was  the  intent  of  the  statute  to  grant  to  those  corpora- 
tions, formed  under  the  general  incorporation  laws,  for  the  purpose 
of  transmitting  intelligence  by  electricity,  the  right  to  construct 
lines  of  telegraph  upon  and  along  highways  and  public  roads  upon 
the  locations  assigned  them  by  the  officers  of  the  municipality 
wherein  such  ways  are  situate,  cannot  be  doubted.  The  use  of  the 
words  "every  company  "  permit  no  other  interpretation.  ISTor  are 
we  able  to  conceive  why,  if  this  authority  might  be  given  to  cor- 
porations specially  chartered,  it  may  not  equally  be  given  to  those 
organized  under  the  general  law. 

If  this  use  of  property  already  appropriated  to  certain  public  uses 
is  to  be  deemed  of  itself  an  exercise  of  the  right  of  eminent  domain, 
the  determination  of  the  legislature  that  the  purpose  for  which  it 
now  directs  it  to  be  taken  is  a  public  use,  is  not  necessarily  con- 
clusive; but,  if  the  use  be  public,  it  is  conclusive  that  the  neces- 
sity exists  which  requires  it  to  be  taken.  Tnlbot  v.  Hudson,  10 
Gray,  417.  While  in  some  cases  there  may  be  difficulty  in  deciding 
whether  an  appropriation  of  property  is  for  a  public  or  private 
use,  such  difficulty  does  not  seem  to  exist  in  the  present  case.  The 
transmission  of  intelligence  by  electricity  is  a  business  of  public 
character,  to  be  exercised  under  public  control,  in  the  same  manner 
as  transportation  of  goods  or  passengers  by  railroads.  The  St.  of 
1849,  c.  93,  of  which,  with  additions,  the  Pub.  Sts.  c.  109,  is  a  re- 
enactment,  recognized  its  public  nature;  and  in  Young  v.  Yarmouth, 
9  Gray,  386,  which  was  an  action  for  injuries  sustained  by  a  trav- 
eller  on  the  highway  by  reason  of  the  telegraph  poles  erected  there 


1056      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

under  the  location  granted  by  the  selectmen  by  authority  of  the 
St.  of  1849,  the  town  was  held  not  liable  because  the  poles  were 
lawfully  within  the  limits  of  the  highway,  and  thus  not  such  an 
obstruction  or  defect  as  to  render  it  responsible.  See  also  Common- 
wealth V.  Boston,  97  Mass,  555;  Bay  State  Brick  Co.  v.  Foster,  115 
Mass.  431.  The  public  nature  of  this  business  has  been  recognized 
by  the  legislation  of  Congress,  the  decisions  of  the  United  States 
courts,  and  of  many  of  the  States  of  the  Union.  So  far  as  known 
to  us,  it  has  not  been  held  otherwise  anywhere.  U.  S.  Sts.  of 
July  1,  1862;  March  3,  1863;  July  2,  1864;  July  24,  1866.  Pensa- 
cola  Telegraph  v.  Western  Union  Telegraph,  96  U.  S.  1. 

As  the  chapter  does  not,  in  our  opinion,  provide  for  damages  to 
the  owner  of  the  fee  in  the  highway  by  reason  of  the  erection  of  the 
telegraphic  posts  and  apparatus,  it  is  to  be  determined  whether 
such  a  use  of  the  highway  creates  a  separate  and  additional  burden, 
requiring  an  independent  assessment  of  damages,  for  which  the 
owner  of  the  land  was  not  compensated  when  the  highway  was  laid 
out,  and  thus  whether  the  omission  of  the  act  to  provide  for  this 
compensation  renders  it  unconstitutional. 

No  right  to  take  the  private  property  of  the  owner  of  the  fee  in 
the  highway  is  conferred  by  this  act;  all  that  is  given  is  the  right 
to  use  land,  by  permission  of  the  municipal  authorities,  the  whole 
beneficial  use  of  which  had  been  previously  taken  from  the  owner 
and  appropriated  to  the  public.  It  is  a  temporary  privilege  only 
which  is  conferred;  no  right  is  acquired  as  against  the  owner  of  the 
fee  by  its  enjoyment,  nor  is  any  legal  right  acquired  to  the  con- 
tinued enjoyment  of  the  privilege,  or  any  presumption  of  a  grant 
raised  thereby.  Pub.  Sts.  c.  109,  §  15.  The  discontinuance  of  a 
highway  would  annul  any  permit  granted  under  the  statute,  and  no 
encumbrance  would  remain  upon  the  land. 

When  land  has  been  taken  or  granted  for  highways,  it  is  so  taken 
or  granted  for  the  passing  and  repassing  of  travellers  thereon, 
whether  on  foot  or  horseback,  or  with  carriages  and  teams  for 
the  transportation  and  conveyance  of  passengers  and  property,  and 
for  the  transmission  of  intelligence  between  the  points  connected 
thereby.  As  every  such  grant  has  for  its  object  the  procurement  of 
an  easement  for  the  public,  the  incidental  powers  granted  must  be 
so  construed  as  most  effectually  to  secure  to  the  public  the  full 
enjoyment  of  such  easement.  Commonwealth  v.  Temple,  14  Gray, 
69,  77. 

It  has  never  been  doubted  that,  by  authority  of  the  legislature, 
highways  might  be  used  for  gas  or  water  pipes,  intended  for  the 
convenience  of  the  citizens,  although  the  gas  or  water  was  con- 
ducted thereunder  by  companies   formed  for  the  purpose;   or   for 


SECT.  III.]  PIERCE    V.    DREW.  1057 

sewers,  whose  object  was  not  merely  the  incidental  one  of  cleansing 
the  streets,  but  also  the  drainage  of  private  estates,  the  rights  of 
which  to  enter  therein  were  subject  to  public  regulations.  Common- 
wealth V.  Lowell  Gas  Light  Co.,  12  Allen,  75;  Attorney-General  v. 
^Metropolitan  Eailroad,  125  Mass.  515,  517;  Boston  v.  Richardson 
[13  Alien,  146J. 

Nor  can  we  perceive  that  these  are  to  be  treated  as  incidental 
uses,  as  suggested  by  the  plaintiif,  because  the  pipes  are  conducted 
under  the  surface  of  the  travelled  way,  rathei-  than  above  it.  The 
rights  of  the  owner  of  the  fee  must  be  the  same  in  either  case,  and 
the  use  of  the  land  under  the  way  for  gas-pipes  or  sewers  would 
effectually  prevent  his  own  use  of  it  for  cellarage  or  similar  purposes. 

When  the  land  was  taken  for  a  highway,  that  which  was  taken 
was  not  merely  the  privilege  of  travelling  over  it  in  the  then  known 
vehicles,  or  of  using  it  in  the  then  known  methods,  for  either  the 
conveyance  of  property  or  transmission  of  intelligence.  Although 
the  horse  railroad  was  deemed  a  new  invention,  it  was  held  that  a 
portion  of  the  road  might  be  set  aside  for  it,  and  the  rights  of  other 
travellers,  to  some  extent,  limited  by  those  privileges  necessary  for 
its  use.  Commonwealth  v.  Temple,  ubi  stq^ra.  Attorney-General 
V.  Metropolitan  Railroad,  itbi  sujjra.  The  discovery  of  the  telegraph 
developed  a  new  and  valuable  mode  of  communicating  intelligence. 
Its  use  is  certainly  similar  to,  if  not  identical  with,  that  public  use 
of  transmitting  information  for  which  the  highway  was  originally 
taken,  even  if  the  means  adopted  are  quite  different  from  the  post- 
boy or  the  mail-coach.  It  is  a  newly  discovered  method  of  exercis- 
ing the  old  public  easement,  and  all  appropriate  methods  must  have 
been  deemed  to  have  been  paid  for  when  the  road  was  laid  out. 
Under  the  clause  to  regulate  commerce  among  the  States,  conferred 
on  Congress  by  the  Constitution  of  the  United  States,  although  tele- 
graphic communication  was  unknown  when  it  was  adopted,  it  has 
been  held  that  it  is  the  right  of  Congress  to  prevent  the  obstruction 
of  telegraphic  communication  by  hostile  State  legislation,  as  it  has 
become  an  indispensable  means  of  intercommunication.  Pensacola 
Telegraph  v.  Western  Union  Telegraph,  uhi  supra. 

No  question  arises  as  to  any  interference  with  the  old  methods  of 
communication,  as  the  statute  we  are  considering,  by  §  8,  guards 
carefully  against  this  by  providing  that  the  telegraphic  structures 
are  not  to  be  permitted  to  incommode  the  public  use  of  highways 
or  public  roads.  We  are  therefore  of  opinion  that  the  use  of  a  por- 
tion of  a  highway  for  the  public  use  of  companies  organized  under 
the  laws  of  the  State  for  the  transmission  of  intelligence  by  elec- 
tricity, and  subject  to  the  supervision  of  the  local  munici])al 
authorities,  which  has  been  permitted  by  the  legislature,  is  a  public 
use  similar  to  that  for  which  the  highway  was  originally  taken,  or 
to  which  it  was  originally  devoted,  and  that  the  owner  of  the  fee  is 
entitled  to  no  further  compensation. 

67 


1058      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

There  remains  the  inquiry,  whether  there  is  any  objection  to  the 
statute  because  it  does  not  provide  a  sufficient  remedy  for  the  owners 
of  property  near  to  or  adjoining  the  way,  who  may  be  incidentally 
injured  by  the  structures  which  the  telegraph  companies  may  have 
been  permitted  to  erect  along  the  line  of  the  highway  and  within 
its  limits.  Such  remedy  is  given  by  §  4  as  the  legislature  deemed 
sufficient.  We  should  not  be  willing  to  believe  that  the  landowner 
thus  injured  would  be  without  remedy,  if  the  company  failed  to 
pay  the  damages  lawfully  assessed  under  this  section,  while  it  still 
endeavored  to  maintain  its  structures;  but  the  only  compensation 
to  which  such  osvner  is  entitled  is  that  which  the  legislature  deems 
just,  when  it  permits  the  erection  of  these  structures.  The  legisla- 
ture may  provide  for  compensation  to  the  adjoining  owners,  but 
without  such  provision  there  can  be  no  legal  claim  to  it,  as  the  use 
of  the  highway  is  a  lawful  one.  Attorney-General  v.  Metropolitan 
Railroad,  uhi  supra. 

The  clause  in  the  Declaration  of  Eights  which  provides  that, 
"whenever  the  public  exigencies  require  that  the  property  of  any 
individual  should  be  appropriated  to  public  uses,  he  shall  receive  a 
reasonable  compensation  therefor,"  is  confined  in  its  application  to 
property  actually  taken  and  appropriated  by  the  government.  Xo 
construction  can  be  given  to  it  which  can  extend  the  benefit  of  it  to 
the  case  of  one  who  suffers  an  indirect  or  consequential  damage  or 
expense  by  means  of  the  rightful  use  of  property  already  belonging 
to  the  public.     Callender  v.  Marsh,  1  Pick.  418,  430. 

The  majority  of  the  court  is  therefore  satisfied  that  the  demurrer 
to  this  bill  was  properly  sustained,  and  the  entry  will  be. 

Decree  affirmed.^ 

1  Mr.  Justice  C.  Allen  delivered  a  dissenting  opinion  in  which  Me.  Justice 
William  Allen  concurred. 

In  Zehren  v.  Milwaukee  Electric  Railway  &  Light  Compaxt,  99  "Wis.  83 
(1898),  the  question  was  whether  an  electric  passenger  railway  can  be  constructed  on 
a  country  highway  without  paymentofadditimial  compensation  to  abutting  landowners. 
WiN'SLOw,  J.,  delivering  the  opinion  of  the  court,  used  the  following  language  :  — 

"  That  there  are  many  and  marked  differences  between  the  uses  to  which  a  city 
street  is  put  and  the  uses  to  whicli  a  country  highway  is  put  cannot  be  denied ;  nor 
can  it  be  denied  that  the  uses  contemplated  when  the  laud  is  taken  vary  widely, 
except  that  both  are  intended  for  purposes  of  travel.  The  street  railway  in  its 
inception  is  a  purely  urban  institution.  It  is  intended  to  facilitate  travel  in  and  about 
the  city,  from  one  part  of  the  municipality  to  another,  and  thus  relieve  the  sidewalks 
of  foot  passengers  and  the  roadway  of  vehicles.  It  is  thus  an  aid  to  the  exercise  of 
the  easement  of  p:issage ;  strictly,  a  city  convenience,  for  use  in  the  city,  by  people 
living  or  stopping  therein,  and  fully  under  the  control  of  municipal  authorities,  who 
have  been  endowed  with  ample  power  for  that  purpose.  This  .strictly  urban  character 
of  the  street  railways  remained  practically  unchanged  for  many  years,  and  during 
these  years  the  long  line  of  decisions  grew  up  recognizing  the  street  railway  as  merely 
an  improved  method  of  using  the  street,  and  rather  as  a  help  to  the  street  than  as  a 
burden  thereon.  Time,  however,  has  made  changes  in  conditions.  New  motive 
power  has  been  discovered,  and  it  is  found  that  by  its  use  an  enlarged  city  street  car 
may  profitably  run  long  distances,  and  compete  to  some  extent  with  the  steam  rail- 
way.   It  is  proposed  to  convert  the  city  railways  into  lines  of  passenger  transportation, 


SECT.  III.]  BAUMAN   V.    ROSS.  1059 

BAUMAN  V.  EOSS. 
167  United  States,  548.     1897. 

[Erom  a  decision  of  the  Court  of  Appeals  of  the  District  of  Colum- 
bia in  certain  proceedings  for  the  condemnation  of  a  right  of  way  for 
a  highway  over  lands  situated  in  the  District  of  Columbia  outside  the 
limits  of  the  cities  of  Washington  and  Georgetown,  brought  under 
act  of  March  2,  1893,  c.  197,  27  Stat.  532,  an  appeal  was  taken  to 
this  court.  The  decision  of  the  lower  court  involved  the  constitu- 
tionality of  provisions  in  the  act  of  Congress  directing  that  in  the 
assessment  of  compensation  to  the  owners  of  property  in  such  cases, 
the  tribunal  making  the  assessment  should  take  into  consideration,  by 
way  of  lessening  the  damages  due  to  such  owners,  any  special  or  di- 
rect benefits,  capable  of  present  estimate  and  reasonable  computation, 
caused  by  the  establishment  of  the  highway  to  the  part  not  taken.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

covering  long  distances,  and  connecting  widely  sejtarated  cities  and  villages,  by  using 
the  country  highways,  and  operating  long  and  heav}'  coaches,  sumetimes  made  up 
into  trains  of  several  cars.  Thus  the  urban  railway  lias  developed  into  the  interurba.i 
railway,  and  threatens  s  JOn  to  develop  into  the  interstate  railway.  The  small  car 
which  took  up  passengers  at  one  corner,  and  dropped  them  at  another,  has  liecome  a 
large  coach,  appro.ximating  the  ordinary  railway  coach  in  size,  and  has  becotne  a 
part,  perhaps,  of  a  train  which  sweeps  across  the  country  from  one  city  to  another,  bear- 
ing its  load  of  passengers  ticketed  through,  with  an  occasional  local  passenger  picked 
up  on  the  highway.  The  purely  city  purpose  which  the  urban  railway  subserved  has 
developed  into  or  l)een  supplanted  by  an  entirely  different  purpose  ;  nanielv,  the  trans- 
portation of  passengers  from  city  to  city  over  long  stretches  of  intervening  country. 
When  this  traiu  or  car,  with  its  load  of  through  passengers,  is  ])assiug  through  a 
country  town,  it  is  clearly  serving  no  township  purpose,  save  in  the  most  limited 
sense.  It  is  very  difficult  to  say  that  this  use  of  a  country  highway  is  not  an  additional 
burden.  It  is  built  and  operated  mainly  to  obtain  the  through  travel  from  city  to  city, 
and  only  incidentally  to  take  up  a  passenger  in  the  country  town.  This  through  travel 
is  unquestionably  composed  of  people  who  otherwise  would  travel  on  the  ordinary 
steam  railroad,  and  wuul  1  not  use  tJie  highway  at  all.  Thus,  the  operation  of  this 
newly-developed  street  railway  (so  called)  upon  the  country  ro.ad  is  precisely  opposite 
to  the  operation  of  the  urban  railway  upon  the  city  street.  It  burdens  the  road  with 
travel  which  would  otherwise  not  be  there,  instead  of  relieving  it  by  tlie  substitution  of 
one  vehicle  for  many.  However  we  regard  this  development  of  the  urban  into  the 
interurban  railway,  it  seems  utterly  impossible  and  illogical  to  say  that  it  is  essentially 
the  same  in  its  purpose  or  effects  as  the  mere  street  railway,  wliich  was  hehl  in  tlio 
Hobart  Case  not  to  be  an  additional  burden  on  the  fee.  The  reasons  given  for  that 
holding  in  that  case  either  do  not  apply  at  all,  or  only  in  a  very  limited  degree,  to  the 
internrban  railway.  The  difference  is  not  so  much  in  the  change  of  motive  power, 
but  in  the  entirely  different  character  of  the  use.  Suppose  a  steaiii-railw.ay  cor[)oration 
were  organized  to  carry  passengers  only  from  citj'  to  city,  and  siionld  attempt  to  lay 
its  track  upon  the  country  roads  without  compensation;  is  there  any  <ioubt  but  that 
it  would  he  held  that  it  could  not  do  so  ?  \Ve  think  not.  Our  conclusion  is  that  an 
interurban  electric  railway,  running  upon  the  highways  through  country  towns,  is  an 
additional  burden  upon  the  highway,  renusylvauia  R.  Co.  u.  Montgomery  Co.  Tass. 
lly.  Co.,  1G7  i'a.  St.  62." 


1060       PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

Tn  the  Fifth  Article  of  the  earliest  amendments  to  the  Constitution 
of  the  United  States,  in  the  nature  of  a  Bill  of  Rights,  the  inherent 
and  necessary  power  of  the  government  to  appropriate  private  prop- 
erty to  the  public  use  is  recognized,  and  the  rights  of  private  owners 
are  secured,  by  the  declaration,  "  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation." 

The  right  of  eminent  domain,  as  was  said  by  this  court,  speaking 
through  the  Chief  Justice,  in  a  recent  case,  "is  the  offspring  of  poli- 
tical necessity,  and  is  inseparable  from  sovereignty  unless  denied  to 
it  hy  its  fundamental  law.  It  cannot  be  exercised,  except  upon  con- 
dition that  just  compensation  shall  be  made  to  the  owner  ;  and  it  is 
the  duty  of  the  State,  in  the  conduct  of  the  inquest  by  which  the 
compensation  is  ascertained,  to  see  that  it  is  just,  not  merely  to  the 
individual  whose  property  is  taken,  but  to  the  public  which  is  to  pay 
for  it.'-  Searl  v.  School  District,  133  U.  S.  553,'562.  The  just  com- 
pensation required  by  the  Constitution  to  be  made  to  the  owner  is  to 
be  measured  by  the  loss  caused  to  him  by  the  appropriation.  He 
is  entitled  to  receive  the  value  of  what  he  has  been  deprived  of,  and 
no  more.  To  award  him  less  would  be  unjust  to  him  ;  to  award  him 
more  would  be  unjust  to  the  public. 

Consequently,  when  part  only  of  a  parcel  of  land  is  taken  for  a 
highway,  the  value  of  that  part  is  not  the  sole  measure  of  the  com- 
pensation or  damages  to  be  paid  to  the  owner;  but  the  incidental  in- 
jury or  benefit  to  the  part  not  taken  is  also  to  be  considered.  When 
the  part  not  taken  is  left  in  such  shape  or  condition  as  to  be  in  itself 
of  less  value  than  before,  the  owner  is  entitled  to  additional  damages 
on  that  account.  When,  on  the  other  hand,  the  part  which  he  retains 
is  specially  and  directly  increased  in  value  by  the  public  improve- 
ment, the  damages  to  the  whole  parcel  by  the  appropriation  of  part 
of  it  are  lessened.  If,  for  example,  by  the  widening  of  a  street,  the 
part  which  lies  next  the  street,  being  the  most  valuable  part  of  the 
land,  is  taken  for  the  public  use,  and  what  was  before  in  the  rear 
becomes  the  front  part,  and  upon  a  wider  street,  and  thereby  of 
greater  value  than  the  whole  was  before,  it  is  neither  just  in  itself, 
nor  required  by  the  Constitution,  that  the  owner  should  be  entitled 
both  to  receive  the  full  value  of  the  part  taken,  considered  as  front 
land,  and  to  retain  the  increase  in  value  of  the  back  land,  which  has 
been  made  front  land  by  the  same  taking. 

The  careful  collection  and  olassification  of  the  cases  upon  this  sub- 
ject in  Lewis  on  Eminent  Domain,  §§  465-471,  shows  that  in  the 
greater  number  of  the  States,  unless  expressly  forbidden  by  consti- 
tution or  statute,  special  benefits  are  allowed  to  be  set  oflF,  both 
against  the  value  of  the  part  taken,  and  against  damages  to  the 
remainder;  that  in  some  of  those  States  general  benefits  also  are 
allowed  to  be  thus  set  off;  that  in  comparativel}' few  States  both 
kinds  of  benefits,  or  at  least  special  benefits,  are  allowed  to  be  set  off 


SECT.  III.]  KOHL    V.    UNITED   STATES.  1001 

agaiust  damages  to  the  remainder,  but  not  against  the  value  of  the 
part  taken;  and  that  in  IMississippi  alone  benefits  are  not  allowed  to 
be  considered  at  all.  See  also  Couley,  Const.  Lim.  (Gth  ed.)  697-702  ; 
2  Dillon,  Mun.  Corp.  (4th  ed.)  §§  624,  625;  Randolph  on  Eminent 
Domain,  §§  254-273. 

The  Constitution  of  the  United  States  contains  no  express  prohibi- 
tion against  considering  benefits  in  estimating  the  just  compensation 
to  be  paid  for  private  property  taken  for  the  public  use  ;  and,  for  the 
reasons  and  upon  the  authorities  above  stated,  no  such  prohibition 
can  be  implied  ;  and  it  is  therefore  within  the  authority  of  Congress, 
in  the  exercise  of  the  right  of  eminent  domain,  to  direct  that,  when 
part  of  a  parcel  of  land  is  appropriated  to  the  public  use  for  a  high- 
way in  the  District  of  Columbia,  the  tribunal  vested  by  law  with  the 
duty  of  assessing  the  compensation  or  damages  due  to  the  owner, 
whether  for  the  value  of  the  part  taken,  or  for  any  injury  to  the  rest, 
shall  take  into  consideration,  by  way  of  lessening  the  whole  or  either 
part  of  the  sum  due  him,  any  special  and  direct  benefits,  capable  of 
present  estimate  and  reasonable  computation,  caused  by  the  establish- 
ment of  the  highway  to  the  part  not  taken. 

[Other  objections  to  the  statute  are  considered,  but  the  act  is 
held  to  be  constitutional,  and  the  judgment  of  the  lower  court  is 
reversed.] 


KOHL   V.   UXITED   STATES. 

91  United  States,  3G7.     1875. 

[Proceedings  were  instituted  in  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Ohio  to  appropriate  certain  prop- 
erty for  the  use  of  the  United  States  iu  the  erection  thereon  of  a 
Federal  building ;  and  from  rulings  in  the  lower  court  in  favor  of  the 
United  States  as  to  certain  questions  involved,  an  appeal  was  taken 
to  this  court.] 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

It  has  not  been  seriously  contended  during  the  argument  that  the 
United  States  government  is  without  power  to  appropriate  lands  or 
other  [)roperty  within  the  States  for  its  own  uses,  and  to  onabki  it  to 
perform  its  proper  functions.  Such  an  authority  is  essential  to  its 
independent  existence  and  perpetuity.  Tliese  cannot  be  preserved  if 
the  obstinacy  of  a  private  person,  or  if  any  other  authorit}-,  can  pre- 
vent the  acquisition  of  the  means  or  instruments  by  which  alone 
governmental  functions  can  be  performed.  The  {)owers  vested  by 
the  Constitution  in  the  general  government  demand  for  their  exercise 
the  acquisition  of  lands  in  all  the  States.  These  are  needed  for  forts, 
armories,  and  arsenals,  for  navy-yards  and  light-liouses,  for  custom- 


1062  PROTECTION*  TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

houses,  post  offices,  and  court-houses,  aud  for  other  public  uses.  If 
the  right  to  acquire  property  for  such  uses  may  be  made  a  barren 
right  by  the  unwillingness  of  property-holders  to  sell,  or  by  the  action 
of  a  State  prohibiting  a  sale  to  the  Federal  government,  the  constitu- 
tional grants  of  power  may  be  rendered  nugator}',  and  the  government 
is  dependent  for  its  practical  existence  upon  the  will  of  a  State,  or 
even  upon  that  of  a  private  citizen.  This  cannot  be.  No  one  doubts 
the  existence  in  the  State  governments  of  the  right  of  eminent  domain, 
—  a  right  distinct  from  and  paramount  to  the  right  of  ultimate  owner- 
ship. It  grows  out  of  the  necessities  of  their  being,  not  out  of  the 
tenure  by  which  lauds  are  held.  It  may  be  exercised,  though  the 
lands  are  not  held  by  grant  from  the  government,  either  mediately 
or  immediately,  and  independent  of  the  consideration  whether  they 
would  escheat  to  the  government  in  case  of  a  failure  of  heirs.  The 
right  is  the  offspring  of  political  necessity ;  and  it  is  inseparable 
from  sovereignty,  unless  denied  to  it  by  its  fundamental  law.  Vat- 
tel,  c.  20,  34;  Bynk.,  lib.  2,  c.  15;  Kent's  Com.  338-340;  Cooley  on 
Const.  Lim.  584  et  seq.  But  it  is  no  more  necessary  for  the  exercise 
of  the  powers  of  a  State  government  than  it  is  for  the  exercise  of  the 
conceded  powers  of  the  Federal  government.  That  government  is  as 
sovereign  within  its  sphere  as  the  States  are  within  theirs.  True,  its 
sphere  is  limited.  Certain  subjects  only  are  committed  to  it;  but  its 
power  over  those  subjects  is  as  full  and  complete  as  is  the  power  of 
the  States  over  the  subjects  to  which  their  sovereignty  extends.  The 
power  is  not  changed  by  its  transfer  to  another  holder. 

But,  if  the  right  of  eminent  domain  exists  in  the  Federal  govern- 
ment, it  is  a  right  which  may  be  exercised  within  the  States,  so  far 
as  is  necessary  to  the  enjoyment  of  the  powers  conferred  upon  it  by 
the  Constitution.  In  Ableman  v.  Booth,  21  How.  523,  Chief  Justice 
Taney  described  in  plain  language  the  complex  nature  of  our  govern- 
ment, and  the  existence  of  two  distinct  and  separate  sovereignties 
within  the  same  territorial  space,  each  of  them  restricted  in  its 
powers,  and  each,  within  its  sphere  of  action  prescribed  by  the  Con- 
stitution of  the  United  States,  independent  of  the  other.  Neither  is 
under  the  necessity  of  applying  to  the  other  for  permission  to  exer- 
cise its  lawful  powers.  Within  its  own  sphere,  it  may  employ  all  the 
agencies  for  exerting  them  which  are  appropriate  or  necessary,  and 
which  are  not  forbidden  by  the  law  of  its  being.  "When  the  i)Ower  to 
establish  post-offices  and  to  create  courts  within  the  States  was  con- 
ferred upon  the  Federal  government,  included  in  it  was  authority  to 
obtain  sites  for  such  offices  and  for  court-houses,  and  to  obtain  them 
by  such  means  as  were  known  and  appropriate.  The  right  of  emi- 
nent domain  was  one  of  those  means  well  known  when  the  Constitu- 
tion was  adopted,  and  employed  to  obtain  lands  for  public  uses.  Its 
existence,  therefore,  in  the  grantee  of  that  power,  ought  not  to  be 
questioned.  The  Constitution  itself  contains  an  implied  recognition 
of  it  bsyond  what  may  justly  be  implied  from  the  express  grants. 


SECT.  III.]      CHEROKEE   NATION    V.    KANSAS   RAILWAY   CO.  IO60 

The  Fifth  Amendment  contains  a  provision  that  private  property  shall 
not  be  taken  for  public  use  without  just  compensation.  What  is  that 
but  an  implied  assertion,  that,  on  making  just  compensation,  it  may- 
be taken  ? 

It  is  true,  this  power  of  the  Federal  government  has  not  heretofore 
been  exercised  adversely ;  but  the  non-user  of  a  power  does  not  dis- 
prove its  existence.  lu  some  instances,  the  States,  by  virtue  of  their 
own  right  of  eminent  domain,  have  condemned  lands  for  the  use  of 
the  general  government,  and  such  condemnations  have  been  sustained 
by  their  courts,  without,  however,  denying  the  right  of  the  United 
States  to  act  independently  of  the  States.  Such  was  the  ruling  in 
Gilmer  v.  Line  Point,  18  Cal.  229,  where  lands  were  condemned  by  a 
proceeding  in  a  State  court  and  under  a  State  law  for  a  United  States 
fortification.  A  similar  decision  was  made  in  Burt  v.  The  Merchants' 
Ins.  Co.,  106  Mass.  '3oQ,  where  land  was  taken  under  a  State  law  as  a 
site  for  a  post-office  and  sub-treasury  building.  Neither  of  these  cases 
denies  the  right  of  the  Federal  government  to  have  lands  in  the  States 
condemned  for  its  uses  under  its  own  power  and  by  its  own  action. 
The  question  was,  whether  the  State  could  take  lands  for  any  other 
public  use  than  that  of  the  State,  In  Trombley  v.  Humphrey,  23 
Mich.  471,  a  different  doctrine  was  asserted,  founded,  we  think,  upon 
better  reason.  The  proper  view  of  the  right  of  eminent  domain  seems 
to  be,  that  it  is  a  right  belonging  to  a  sovereignty  to  take  private 
property  for  its  own  public  uses,  and  not  for  those  of  another.  Be- 
yond that,  there  exists  no  necessity;  which  alone  is  the  foundation 
of  the  right.  If  the  United  States  have  the  pov/er,  it  must  be  com- 
plete in  itself.  It  can  neither  be  enlarged  nor  diminished  by  a  State. 
Nor  can  any  State  prescribe  the  manner  in  which  it  must  be  exercised. 
The  consent  of  a  State  can  never  be  a  condition  precedent  to  its  en- 
joyment. Such  consent  is  needed  only,  if  at  all,  for  the  transfer  of 
jurisdiction  and  of  the  right  of  exclusive  legislation  after  the  land 
shall  have  been  acquired. 

[Other  questions  involved  in  the  appeal  are  considered,  and  the 
judgment  of  the  lower  court  is  affirmed.^] 

^  Mr.  Justice  Field  delivered  a  dissenting  opinion. 

In  Cherokee  Nation  v.  Kansas  Kaii.wav  Company,  1.35  U  S.  641  (1890), 
which  was  an  appeal  from  the  District  Court  of  the  United  States  for  tlie  Western 
"District  of  Kansas,  the  question  involved  was  the  right  of  the  railway  company  to 
condemn  a  right  of  way  under  authority  of  Congress  through  the  territory  of  the 
Clierokee  Nation.  It  was  contended  tliat  the  Clierokce  Nation  was  an  independent 
power,  and  that  Congress  could  not  authorize  such  ]>rocoeilings.  Mr.  Justice 
Harlan,  delivering  the  opinion  of  the  court,  uses  tlie  following  language:  — 

"In  view  of  these  authorities,  the  contention  that  the  lands  through  which  the  de- 
fendant was  authorized  by  Congress  to  construct  its  railway,  are  held  by  tlie  Chcrokees 
as  a  sovereign  nation,  without  dependence  on  any  other,  and  that  the  right  of  eminent 
domain  within  its  territory  can  only  be  exercised  by  it,  and  not  by  the  United  States, 
except  with  the  consent  of  the  Cherokee  Nation,  cinnot  be  sustained.  The  fact  that 
the  Cherokee  Nation  holds  tliese  lauds  in  fee  simple  under  patencs  from  the  Unitei] 


1064      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVI. 

States,  is  of  no  consequence  in  the  present  discussion ;  for  the  United  States  may  ex- 
ercise the  right  of  eminent  domain,  even  within  the  limits  of  the  several  States,  for 
purposes  necessary  to  the  execution  of  the  powers  granted  to  the  general  government 
by  the  Constitution.  Sucli  an  authority,  as  was  said  in  Kohl  l\  United  States,  91 
U.  S.  367,  is  essential  to  the  independent  existence  and  perpetuity  of  the  United 
States,  and  is  not  dependent  upon  the  consent  of  the  States.  United  ^States  v.  Fox, 
94  U.  S.  315,  320;  United  States  v.  Jones,  109  U.  S.  513  ;  United  States  v.  Great  Falls 
Manufacturing  Co.,  112  U.  S.  645;  Van  Brocklin  v.  State  of  Tennessee,  117  U.  S-  151, 
154.  As  was  said  by  Mr.  Justice  Bradley  in  Stockton  v.  Baltimore,  &c.  Railroad,  35 
Fed.  Rep.  9,  19:  'The  argument  based  upon  the  doctrine  that  the  States  have  tlie 
eminent  domain  or  highest  dominion  in  the  lands  comprised  within  their  limits, 
and  that  the  United  States  have  no  dominion  in  such  lands,  cannot  avail  to  frustrate 
the  supremacy  given  by  the  Constitution  to  the  government  of  the  United  States  in  all 
matters  within  the  scope  of  its  sovereignty.  This  is  not  a  matter  of  words,  but  of 
things.  If  it  is  necessary  that  the  United  States  government  should  have  an  eminent 
domain  still  higher  than  that  of  the  State,  in  order  that  it  may  fully  carry  out  the  ob- 
jects and  purposes  of  the  Constitution,  then  it  has  it.  Whatever  may  be  the  necessities 
or  conclusions  of  theoretical  law  as  to  eminent  domain  or  anything  else,  it  must  be 
received  as  a  postulate  of  the  Constitution  that  the  government  of  tlie  United  States 
is  invested  with  full  and  complete  power  to  execute  and  carry  out  its  purposes.'  It 
would  be  very  strange  if  the  national  government,  in  the  execution  of  its  riglitful 
authority,  conid  exercise  the  power  of  eminent  domain  in  the  several  States,  and  could 
not  exercise  the  same  power  in  a  Territory  occupied  by  an  Indian  nation  or  tribe,  the 
members  of  which  were  wards  of  the  United  States,  and  directly  subject  to  its  political 
control.  The  lands  in  the  Cherokee  Territory,  like  the  lands  held  by  private  owners 
everywhere  within  the  geographical  limits  of  the  United  States,  are  held  subject  to 
the  authority  of  the  genei'al  government  to  take  them  for  such  objects  as  are  germane 
to  the  execution  of  the  powers  granted  to  it ;  provided  only,  that  they  are  not  taken 
without  just  compensation  being  made  to  the  owner. 

"  But  it  is  said  that  the  objects  for  which  the  act  of  1884  was  passed  are  not  such  as 
admit  of  the  exercise  of  the  right  of  eminent  domain.  This  contention  is  without  merit. 
Congress  has  power  to  regulate  commerce,  not  only  with  foreign  nations  and  among  the 
several  States,  but  with  the  Indian  tribes.  It  is  not  necessary  that  an  act  of  Congress 
should  express,  in  words,  the  ])urpose  for  which  it  was  passed.  The  court  will  deter- 
mine for  itself  whether  the  means  employed  by  Congress  have  any  relation  to  the 
powers  granted  by  the  Constitution.  The  railroad  which  the  defendant  was  authorized 
to  construct  and  maintain  will  have,  if  constructed  and  put  into  operation,  direct  rela- 
tion to  commerce  with  the  Indian  tribes,  as  well  as  with  commerce  among  the  States, 
especially  with  the  States  immediately  nortli  and  south  of  the  Indian  Territorv.  It  is 
true  that  the  company  authorized  to  construct  and  maintain  it  is  a  corporation  created 
by  the  laws  of  a  State,  but  it  is  none  the  less  a  fit  instrumentality  to  accom-^lish  the 
public  objects  contemplated  by  the  act  of  1884.  Other  means  might  have  been  em- 
ployed, but  those  designated  in  that  act,  altliougli  not  indispensably  necessary  to 
accomplish  the  end  in  view,  are  appropriate  and  conducive  to  that  end,  and,  therefore, 
within  the  power  of  Congress  to  adopt.  The  question  is  no  longer  an  open  one,  as  to 
whether  a  railroad  is  a  public  highway,  established  primarily  for  the  convenience  of 
the  people,  and  to  subserve  public  ends,  and.  therefore,  sul>ject  tn  governmental  con- 
trol and  regulation.  It  is  because  it  is  a  public  highway,  and  subject  to  such  control, 
that  the  corporation  by  which  it  is  constructed,  and  by  which  it  is  to  be  maintained, 
may  be  permitted,  under  legislative  sanction,  to  appropriate  private  property  for  the 
purposes  of  a  right  of  way,  upon  making  jnst  compensation  to  the  owner,  in  the  mode 
prescribed  by  law.  It  is  well  said  by  Mr.  Cooley,  in  his  Treatise  on  Constitutional 
Limitations,  section  537,  that  'while  there  are  unquestionably  some  objections  to  com- 
pelling a  citizen  to  surrender  his  property  to  a  corporation,  whose  corporators,  in  re- 
ceiving it,  are  influenced  by  motives  of  private  gain  and  emolument,  so  that  to  them 
the  purpose  of  the  a])propriation  is  altogether  private,  yet  conceding  it  to  be  .settled 
that  these  facilities  for  travel  and  commerce  ai'e  a  public  necessity,  if  the  legislature, 
reflecting  the  public  sentiment,  decide  that  this  general  benefit  is  better  promoted 


SECT.  III.]      UNITED  STATES  V.  GETTYSBURG  ELECTRIC  RY.  CO.  1065 


UNITED  STATES  v.    GETTYSBURG  ELECTRIC   RAILWAY 

COMPANY. 

160  United  States,  668.     1896. 

[A  WRIT  of  error  is  brought  to  this  court  from  the  decision  of  the 
Circuit  Court  of  the  United  States  for  the  Eastern  District  of 
Pennsylvania,  in  a  proceeding  under  act  of  Congress  to  acquire  land 
including  the  right  of  way  of  a  railroad,  for  the  purpose  of  estab- 
lishing a  public  park  on  the  site  of  the  battlefield  of  Gettysburg.] 

Mk.  Justice  Peckham,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

The  really  important  question  to  be  determined  in  these  proceed- 
ings is,  whether  the  use  to  which  the  petitioner  desires  to  put  the 
land  described  in  the  petitions  is  of  that  kind  of  public  use  for 

by  their  construction  through  individuals  or  corporations  tlian  by  the  State  itself,  it 
would  clearly  be  pressing  a  constitutional  maxim  to  an  absurd  extreme  if  it  were  to 
be  held  that  the  public  necessity  should  only  be  provided  for  in  the  way  which  is  least 
consistent  witii  the  public  interest.'  But  this  precise  (]uestion  was  determined  upon 
full  consideration  in  California  v.  Pacific  Railroad  Company,  127  U.  S.  1,  39,  where 
this  court  said :  '  The  power  to  construct,  or  to  autliorize  individuals  or  corporations 
to  construct,  national  highways  and  bridges  from  State  to  State,  is  essential  to  the 
complete  control  and  regulation  of  interstate  commerce.  Witliout  authority  in  Con- 
gress to  establish  and  maintain  such  highways  and  bridges,  it  would  be  without  au- 
thority to  regulate  one  of  the  most  imjjortant  adjuncts  of  commerce.  ...  Of  course 
the  autiiority  of  Congress  over  the  Territories  of  the  United  States  and  its  power  to 
grant  franchises  exercisable  therein  are,  and  ever  have  been,  undoubted.  But  the 
wider  power  was  very  freely  exercised,  and  much  to  the  general  satisfaction,  in  the 
creation  of  the  vast  system  of  railronds  connecting  the  East  with  the  Pacific,  traversing 
States  as  well  as  Territories,  and  employing  tlie  agency  of  State  as  well  as  Federal  cor- 
porations.'    Upon  this  point  nothing  more  need  be  said. 

"  It  is  further  suggested  that  the  act  of  Congress  violates  the  Constitution  in  tliat 
it  does  not  provide  for  compensation  to  be  made  to  the  plaintiff  before  the  defendant 
entered  upon  these  lands  for  tlie  purpose  of  constructing  its  road  over  tiiem.  This 
objection  to  the  act  cannot  lie  sustained.  The  Constitution  declares  that  private  prop- 
erty shall  not  be  taken  '  for  j)ublic  use  without  just  compensation.'  It  does  not  provide 
or  require  that  compensation  shall  be  actually  paid  in  advance  of  the  occupancy  of  the 
land  to  be  taken.  But  the  owner  is  entitled  to  reasonable,  certain,  and  adeipiate 
provision  for  obtaining  compensation  before  his  occupancy  is  di.sturbed.  Wliether  a 
particular  provision  be  sufficient  to  secure  the  com]>ensation  to  which,  under  the  Con- 
stitution, he  is  entitled,  is  .sometimes  r  question  of  difficulty.  In  the  present  case,  the 
requirements  of  the  Constitution  h;ive,  in  our  judgment,  been  fully  met.  Tlie  third 
section  provides  that  before  the  railway  shall  be  constructed  through  any  lands  jiro- 
posed  to  be  taken,  full  com])ensation  shall  be  made  to  the  owner  for  all  proj)erty  to  be 
taken  or  damage  done  by  rea.son  of  tlie  construction  of  the  road.  In  the  event  of  an 
appeal  from  the  finding  of  the  referees,  the  company  is  required  to  pay  into  court 
double  the  amount  of  the  award,  to  abide  its  judgment;  and,  that  being  done,  tlie 
company  may  enter  upon  the  projierty  sought  to  be  condemned,  and  proceed  with  the 
construction  of  its  road.  We  are  of  the  opinion  that  this  provision  is  sufiiciently  rea- 
sonable, certain,  and  adequate  to  secure  the  just  compensation  to  which  tlie  owner  is 
entitled." 


1066      PROTECTION  TO  CONTRACTS  AND  PROPERTY.   [CHAP.  XVT. 

which  the  government  of  the  United  States  is  authorized  to  con- 
demn land. 

It  has  authority  to  do  so  whenever  it  is  necessary  or  appropriate 
to  use  the  land  in  the  execution  of  any  of  the  powers  granted  to  it 
by  the  Constitution.  Kohl  v.  United  States,  91  U.  S.  367; 
Cherokee  Nation  v.  Kansas  Railway  Co.,  135  U.  S.  641,  656;  Chap- 
pell  V.  United  States,  160  U.  S.  499. 

Is  the  proposed  use,  to  which  this  land  is  to  be  put,  a  public  use 
within  this  limitation? 

The  purpose  of  the  use  is  stated  in  the  first  act  of  Congress, 
passed  on  the  3d  day  of  March,  1893  (the  Appropriation  Act  of 
189.3),  and  is  quoted  in  the  above  statement  of  facts.  The  appro- 
priation act  of  August  18,  1894,  also  contained  the  following: 
"For  continuing  the  work  of  surveying,  locating,  and  preserving 
the  lines  of  battle  at  Gettysburg,  Pennsylvania,  and  for  purchasing, 
opening,  constructing,  and  improving  avenues  along  the  portions 
occupied  by  the  various  commands  of  the  armies  of  the  Potomac  and 
Northern  Virginia  on  that  field,  and  for  fencing  the  same ;  and  for 
the  purchase,  at  private  sale  or  by  condemnation,  of  such  parcels  of 
land  as  the  Secretary  of  War  may  deem  necessary  for  the  sites  of 
tablets,  and  for  the  construction  of  the  said  avenues;  for  determin- 
ing the  leading  tactical  positions  and  properly  marking  the  same 
with  tablets  of  batteries,  regiments,  brigades,  divisions,  corps,  and 
other  organizations  with  reference  to  the  study  and  correct  under- 
standing of  the  battle,  each  tablet  bearing  a  brief  historical  legend, 
compiled  without  praise  and  without  censure;  fifty  thousand  dollars, 
to  be  expended  under  the  direction  of  the  Secretary  of  War." 

In  these  acts  of  Congress  and  in  the  joint  resolution  the  intended 
use  of  this  land  is  plainly  set  forth.  It  is  stated  in  the  second 
volume  of  Judge  Dillon's  work  on  Municipal  Corporations  (4th  ed. 
§  600),  that  when  the  legislature  has  declared  the  use  or  purpose  to 
be  a  public  one,  its  judgment  will  be  respected  by  the  courts,  unless 
the  use  be  palpably  without  reasonable  foundation.  Many  authori- 
ties are  cited  in  the  note,  and,  indeed,  the  rule  commends  itself  as  a 
rational  and  proper  one. 

As  just  compensation,  which  is  the  full  value  of  the  property 
taken,  is  to  be  paid,  and  the  amount  must  be  raised  by  taxation 
where  the  land  is  taken  by  the  government  itself,  there  is  not  much 
ground  to  fear  any  abuse  of  the  power.  The  responsibility  of  Con- 
gress to  the  people  will  generally,  if  not  always,  result  in  a  most 
conservative  exercise  of  the  right.  It  is  quite  a  different  view  of 
the  question  which  courts  will  take  when  this  power  is  delegated 
to  a  private  corporation.  In  that  case  the  presumption  that  the 
intended  use  for  which  the  corporation  proposes  to  take  the  land 
is  public,  is  not  so  strong  as  where  the  government  intends  to  use 
the  land  itself. 

In  examining  an  act  of  Congress  it  has  been  frequently  said  that 


SECT.  IIT.]       UNITED  STATES  V.  GETTYSBURG  ELECTRIC  RY.  CO.  1067 

every  intendment  is  in  favor  of  its  constitutionality.  Such  acf 
is  presumed  to  be  valid  unless  its  invalidity  is  plain  and  apparent; 
no  presumption  of  invalidity  can  be  indulged  in;  it  must  be  shown 
clearly  and  unmistakably.  This  rule  has  been  stated  and  followed 
by  this  court  from  the  foundation  of  the  government. 

Upon  the  question  whether  the  proposed  use  of  this  land  is  a 
public  one,  we  think  there  can  be  no  well-founded  doubt.  And 
also,  in  our  judgment,  the  government  has  the  constitutional  power 
to  condemn  the  land  for  the  proposed  use.  It  is,  of  course,  not 
necessary  that  the  power  of  condemnation  for  such  purpose  be 
expressly  given  by  the  Constitution.  The  right  to  condemn  at  all 
is  not  so  given.  It  results  from  the  powers  that  are  given,  and  it 
is  implied  because  of  its  necessity,  or  because  it  is  appropriate  in 
exercising  those  powers.  Congress  has  power  to  declare  war  and 
to  create  and  equip  armies  and  navies.  It  has  the  great  power  of 
taxation  to  be  exercised  for  the  common  defence  and  general  wel- 
fare. Having  such  powers,  it  has  such  other  and  implied  ones  as 
are  necessary  and  appropriate  for  the  purpose  of  carrying  the  powers 
expressly  given  into  effect.  Any  act  of  Congress  which  plainly  and 
directly  tends  to  enhance  the  respect  and  love  of  the  citizen  for  the 
institutions  of  his  country  and  to  quicken  and  strengthen  his 
motives  to  defend  them,  and  which  is  germane  to  and  intimately 
connected  with  and  appropriate  to  the  exercise  of  some  one  or  all 
of  the  powers  granted  by  Congress  must  be  valid.  This  proposed 
use  comes  within  such  description.  The  provision  comes  within 
the  rule  laid  down  by  Chief  Justice  Marshall,  in  McCuUoch  v. 
Maryland,  4  Wheat.  316,  421,  in  these  words:  "Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adequate  to  that 
end,  which  are  not  prohibited  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional." 

The  end  to  be  attained  by  this  proposed  use  as  provided  for  by  the 
act  of  Congress,  is  legitimate,  and  lies  within  the  scope  of  the 
Constitution.  The  battle  of  Gettysburg  was  one  of  the  great 
battles  of  the  world.  The  numbers  contained  in  the  opposing 
armies  were  great;  the  sacrifice  of  life  was  dreadful;  while  the 
bravery  and,  indeed,  heroism  displnyed  by  both  the  contending 
forces  rank  with  the  highest  exhibition  of  those  qualities  ever  made 
by  man.  The  importance  of  the  issue  involved  in  the  contest  of 
which  this  great  battle  w^as  a  part  cannot  be  overestimated.  The 
existence  of  the  government  itself  and  the  perpetuity  of  our  insti- 
tutions  depended  upon  the  result.  Valuable  lessons  in  the  art  of 
war  can  now  be  learned  from  an  examination  of  this  great  battle- 
field in  connection  with  the  history  of  the  events  which  there  took 
place.  Can  it  be  that  the  government  is  without  power  to  preserve 
the  land,  and  properly  mark  out  the  various  sites  upon  which  this 
struggle  took  place?     Can  it  not  erect  the  monuments  provided  for 


1068  PROTECTION   TO    CONTRACTS   AND   PROPERTY.       [CHAP.  XVI. 

■by  these  acts  of  Congress,  or  even  take  possession  of  the  fiehl  of 
battle  in  the  name  and  for  the  benefit  of  all  the  citizens  of  the 
country  for  the  present  and  for  the  future?  Such  a  use  seems 
necessarily  not  only  a  public  use,  but  one  so  closely  connected  with 
the  welfare  of  the  republic  itself  as  to  be  within  the  powers  granted 
Congress  by  the  Constitution  for  the  purpose  of  protecting  and 
preserving  the  whole  country.  It  would  be  a  great  object  lesson  to 
all  who  looked  upon  the  laud  thus  cared  for,  and  it  would  show  a 
proper  recognition  of  the  great  things  that  were  done  there  on  those 
momentous  days.  By  this  use  the  government  manifests  for  the 
benefit  of  all  its  citizens  the  value  put  upon  the  services  and  exer- 
tions of  the  citizen  soldiers  of  that  period.  Their  successful  effort 
to  preserve  the  integrity  and  solidarity  of  the  great  republic  of 
modern  times  is  forcibly  impressed  upon  every  one  who  looks  over 
the  field.  The  value  of  the  sacrifices  then  freely  made  is  rendered 
plainer  and  more  durable  by  the  fact  that  the  government  of  the 
United  States,  through  its  representatives  in  Congress  assembled, 
appreciates  and  endeavors  to  perpetuate  it  by  this  most  suitable 
recognition.  Such  action  on  the  part  of  Congress  touches  the  heart, 
and  comes  home  to  the  imagination  of  every  citizen,  and  greatly 
tends  to  enhance  his  love  and  respect  for  those  institutions  for 
which  these  heroic  sacrifices  were  made.  The  greater  the  love  of 
the  citizen  for  the  institutions  of  his  country  the  greater  is  the 
dependence  properly  to  be  placed  upon  him  for  their  defence  in 
time  of  necessity,  and  it  is  to  such  men  that  the  country  must  look 
for  its  safety.  The  institutions  of  our  country  which  were  saved 
at  this  enormous  expenditure  of  life  and  property  ought  to  and  will 
be  regarded  with  proportionate  affection.  Here  upon  this  battle- 
field is  one  of  the  proofs  of  that  expenditure,  and  the  sacrifices  are 
rendered  more  obvious  and  more  easily  appreciated  when  such  a 
battlefield  is  preserved  by  the  government  at  the  public  expense. 
The  right  to  take  land  for  cemeteries  for  the  burial  of  the  deceased 
soldiers  of  the  country  rests  on  the  same  footing  and  is  connected 
with  and  springs  from  tJie  same  powers  of  the  Constitution.  It 
seems  very  clear  that  the  government  has  the  right  to  bury  its  own 
soldiers  and  to  see  to  it  that  their  graves  shall  not  remain  unknown 
or  unhonored. 

No  narrow  view  of  the  character  of  this  proposed  use  should  be 
taken.  Its  national  character  and  importance,  we  think,  are  plain. 
The  power  to  condemn  for  this  purpose  need  not  be  plainly  and 
unmistakably  deduced  from  any  one  of  the  particularly  specified 
powers.  Any  number  of  those  powers  may  be  grouped  together, 
and  an  inference  from  them  all  may  be  drawn  that  the  power 
claimed  has  been  conferred. 

It  is  needless  to  enlarge  upon  the  subject,  and  the  determination 
is  arrived  at  without  hesitation  that  the  use  intended  as  set  forth  in 
the  petition  in  this  proceeding  is  of  that  public  nature  which  comes 


SECT.  III.]  BEDFORD    V.    UNITED    STATES.  1069 

within  the  constitutional  power  of  Congress  to  provide  for  by  the 
condemnation  of  land. 

[Other  objections  to  the  validity  of  the  statute  are  considered;  but 
for  the  reasons  pointed  out  in  the  portion  of  the  opinion  winch  is 
given,  the  decision  of  the  lower  court,  which  was  to  the  effect  that 
the  intended  use  of  the  land  was  not  that  kind  of  a  public  use  for 
which  the  United  States  had  the  constitutional  power  to  condemD 
land,  was  reversed  ] 


BEDFORD  V.   UNITED   STATES. 
192  U.  S.  217;  24  Sup.  Ct.  Rep.  238.     1904. 

[The  plaintiffs  sued  in  the  Court  of  Claims  to  recover  damages  to 
land  by  flooding  as  the  result  of  revetments  erected  by  the  United 
States.along  the  banks  of  the  Mississippi  River  to  prevent  erosion  from 
natural  causes.     The  claim  was  disallowed  and  plaintiffs  appeal.] 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

There  is  no  dispute  about  the  power  of  the  government  to  con- 
struct the  works  which,  it  is  claimed,  caused  the  damage  to  appellants' 
land.  It  was  alleged  by  appellants  that  they  were  constructed  by  the 
*'  United  States  in  the  execution  of  its  rights  and  powers,  in  and  over 
said  river  and  in  pursuance  of  its  lawful  control  over  the  navigation 
of  said  river  and  for  the  betterment  and  improvement  thereof."  And 
also  that  the  works  were  not  constructed  upon  appellants'  land,  and 
their  immediate  object  was  to'  prevent  further  erosion  at  De  Soto 
Point.  In  other  words,  the  object  of  the  works  was  to  preserve  the 
conditions  made  by  natural  causes.  By  constructing  works  to  secure 
that  object  appellants  contend  there  was  given  to  them  a  right  to 
compensation.  The  contention  asserts  a  right  in  a  riparian  proprietor 
to  the  unrestrained  operation  of  natural  causes,  and  that  works  of  the 
government  which  resist  or  disturb  those  causes,  if  injury  result  to 
riparian  owners,  have  the  effect  of  taking  private  property  for  public 
uses  within  the  meaning  of  the  Fifth  Amendment  of  the  Constitution 
of  the  United  States.  The  consequences  of  the  contention  immedi- 
ately challenge  its  soundness.  .  .  .  Conceding  the  power  of  the  govern- 
ment over  navigable  rivers,  it  would  make  that  power  impossible  of 
exercise,  or  would  prevent  its  exercise  by  the  dread  of  an  immeasur- 
able responsibility. 

There  is  another  principle  by  which  the  rights  of  riparian  property 
and  the  power  of  the  government  over  navigable  rivers  are  better  ac- 
commodated.    It  is  illustrated  in  many  cases. 

The  Constitution  provides  that  private  property  shall  not  be  taken 
without  just  compensation,  but  a  distinction  has  been  made  between 


1070  PROTECTION    TO    CONTRACTS    AND    PROPERTT.         [CHAP.    XVI. 

damage  and  taking,  and  that  distinction  must  be  observed  in  apply- 
ing the  constitutional  provision.  An  excellent  illustration  is  found 
in  Gibson  v.  United  States,  166  U.  S.  269.  The  distinction  is  there 
instructively  explained,  and  other  cases  need  not  be  cited.  It  is, 
however,  necessary  to  refer  to  United  States  v.  Lynah,  188  U.  S. 
445,  as  it  is  especially  relied  upon  by  appellants.  The  facts  are 
stated  in  the  following  excerpt  from  the  opinion  : 

"It  appears  from  the  finding,  as  amended,  that  a  large  portion  of 
the  land  flooded  was  in  its  natural  condition  between  high-water  mark 
and  low-water  mark,  and  was  subject  to  overflow  as  the  water  passed 
from  one  stage  to  the  other;  that  this  natural  gverflow  was  stopped 
by  an  embankment,  and  in  lieu  thereof,  by  means  of  flood  gates,  the 
land  was  flooded  and  drained  at  the  will  of  the  owner.  From  this  it 
is  contended  that  the  only  result  of  the  raising  of  the  level  of  the 
river  by  the  government  works  was  to  take  away  the  possibility  of 
drainage.  But  findings  nine  and  ten  show  that,  both  by  seepage  and 
percolation  through  the  embankment  and  an  actual  flowing  upon  the 
plantation  above  the  obstruction,  the  water  has  been  raised  in  the 
plantation  about  eighteen  inches,  that  it  is  impossible  to  remove  this 
overflow  of  water,  and,  as  a  consequence,  the  property  has  become  an 
irreclaimable  bog,  unfit  for  the  purpose  of  rice  culture  or  any  other 
known  agriculture,  and  deprived  of  all  value.  It  is  clear  from  these 
findings  that  what  was  a  valuable  rice  plantation  has  been  perma- 
nently flooded,  wholly  destroyed  in  value,  and  turned  into  an  irre- 
claimable bog;  and  this  as  the  necessary  result  of  the  work  which 
the  government  has  undertaken." 

The  question  was  asked:  "Does  this  amount  to  a  taking?"  To 
■which  it  was  replied:  "The  case  of  Pumpelly  v.  Green  Bay  Co.,  13 
Wall.  166  [1050],  answers  this  question  in  the  affirmative."  And 
further:  "The  Green  Ba}^  Company,  as  authorized  by  statute,  con- 
structed a  dam  across  Fox  Eiver,  by  means  of  which  the  land  of 
Pumpelly  was  overflowed  and  rendered  practically  useless  to  him. 
There,  as  here,  no  proceedings  had  been  taken  to  formally  condemu 
the  land."  In  both  cases,  therefore,  it  was  said  that  there  was  an 
actual  invasion  and  appropriation  of  land  as  distinguished  from 
consequential  damage.  In  the  case  at  bar  the  damage  was  strictly 
consequential.  It  was  the  result  of  the  action  of  the  river  through 
a  course  of  years.  The  case  at  bar,  therefore,  is  distinguishable 
from  the  Lynah  case  in  the  cause  and  manner  of  the  injury.  In 
the  Lynah  case  the  works  were  constructed  in  the  bed  of  the  river, 
obstructed  the  natural  flow  of  its  water,  and  were  held  to  have 
caused,  as  a  direct  consequence,  the  overflow  of  Lynah's  plantation. 
In  the  case  at  bar  the  works  were  constructed  along  the  banks  of 
the  river  and  their  effect  was  to  resist  erosion  of  the  banks  by  the 
waters  of  the  river.  There  was  no  other  interference  with  natural 
conditions.  Therefore,  the  damage  to  appellants'  land,  if  it  can 
be  assigned  to  the  works  at  all,  was  but  an  incidental  consequence 
of  them.  Judgment  offi)"med. 


1 


APPENDIX  A. 

ADDITIONAL  CASES  RELATING   TO   REGULATION  OF 
COMMERCE. 


1.   The  Extent  of  Federal  Power. 


LOTTERY   CASE. 

(CHAMPIOX    V.    AMES.) 

188  U.  S.  321;  23  Sup.  Ct.  Rep.  321.    1903. 

[The  plaintiff  was  held  under  arrest  on  a  charge  of  conspiring  to 
commit  the  offense  against  the  United  States  of  causing  to  be  carried 
from  one  State  to  another  in  the  United  States  certain  lottery  tickets 
for  the  purpose  of  disposing  of  the  same  to  purchasers  thereof,  in 
violation  of  the  first  section  of  the  Act  of  Congress  of  March  2, 1895, 
c.  191,  entitled,  "  An  act  for  the  suppression  of  lottery  traffic  through 
national  and  interstate  commerce  and  the  postal  service  subject  to 
the  jurisdiction  and  laws  of  the  United  States."  •  28  Stat.  963.  It  was 
charged  that  this  transportation  was  attempted  to  be  effected  by 
depositing  lottery  tickets  with  the  Wells-Fargo  Express  Company  in 
Texas  to  be  transported  by  said  corporation,  engaged  in  carrying 
freight  and  packages  through  several  States  and  having  the  same 
transported  to  the  State  of  California  for  the  purpose  of  disposing  of 
the  same.  Plaintiff  instituted  proceedings  in  the  Circuit  Court  of 
the  United  States  for  the  Northern  District  of  Illinois  to  secure  his 
release  from  arrest  by  means  of  a  writ  of  habeas  corpus,  claiming 
that  he  was  restrained  of  his  liberty  by  the  marshal  of  the  United 
States  in  violation  of  the  Constitution  and  laws  of  the  United  States. 
The  application  for  the  writ  having  been  denied,  plaintiff  appeals.] 

Mr.  Justice  Haklax  delivered  the  opinion  of  the  court. 

The  appellant  insists  that  the  carrying  of  lottery  tickets  from  one 
State  to  another  State  by  an  express  company  engaged  in  carrying 
freight  and  packages  from  State  to  State,  although  such  tickets  may 
be  contained  in  a  box  or  package,  does  not  constitute,  and  cannot  by 
any  act  of  Congress  be  legally  made  to  constitute,  commerce  among 


1072        ADDITIONAL    CASES   RELATING   TO    REGULATION    OF   COMMERCE. 

the  States  within  the  meaning  of  the  clause  of  the  Constitution  of 
the  United  States,  providing  that  Congress  shall  have  power  "  to 
regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes  ; "  consequently,  that  Congress 
cannot  make  it  an  offense  to  cause  such  tickets  to  be  carried  from 
one  State  to  another. 

The  government  insists  that  express  companies,  when  engaged  for 
hire  in  the  business  of  transportation  from  one  State  to  another,  are 
instrumentalities  of  commerce  among  the  States;  that  the  carrying 
of  lottery  tickets  from  one  State  to  another  is  commerce  which  Con- 
gress may  regulate ;  and  that  as  a  means  of  executing  the  power  to 
regulate  interstate  commerce  Congress  may  make  it  an  offense  against 
the  United  States  to  cause  lottery  tickets  to  be  carried  from  one  State 
to  another. 

The  questions  presented  by  these  opposing  contentions  are  of  great 
moment,  and  are  entitled  to  receive,  as  they  have  received,  the  most 
careful  consideration. 

What  is  the  import  of  the  word  "commerce"  as  used  in  the  Con- 
stitution ?  It  is  not  defined  by  that  instrument.  Undoubtedly,  the 
carrying  from  one  State  to  another  by  independent  carriers  of  things 
or  commodities  that  are  ordinary  subjects  of  traffic,  and  which  have 
in  themselves  a  recognized  value  in  money,  constitutes  interstate  com- 
merce. But  does  not  commerce  among  the  several  States  include 
something  more  ?  Does  not  the  carrying  from  one  State  to  another, 
by  independent  carriers,  of  lottery  tickets  that  entitle  the  holder  to 
the  payment  of  a  certain  amount  of  money  therein  specified,  also  con- 
stitute commerce  among  the  States  ? 

It  is  contended  by  the  parties  that  these  questions  are  answered  in 
the  former  decisions  of  this  court,  the  government  insisting  that  the 
principles  heretofore  announced  support  its  position,  while  the  con- 
trary is  confidently  asserted  by  the  appellant.  This  makes  it  neces- 
sary to  ascertain  the  import  of  such  decisions.  Upon  that  inquiry 
we  now  enter,  premising  that  some  propositions  were  advanced  in 
argument  that  need  not  be  considered.  In  the  examination  of  former 
judgments  it  will  be  best  to  look  at  them  somewhat  in  the  order  in 
which  they  were  rendered.  When  prior  adjudications  have  been  thus 
collated  the  particular  grounds  upon  which  the  judgment  in  the  pres- 
ent case  must  necessarily  rest  can  be  readily  determined.  We  may 
here  remark  that  some  of  the  cases  referred  to  may  not  bear  directly 
upon  the  questions  necessary  to  be  decided,  but  attention  will  be 
directed  to  them  as  throwing  light  upon  the  general  inquiry  as  to 
the  meaning  and  scope  of  the  commerce  clause  of  the  Constitution. 

[After  quoting  at  some  length  from  the  opinions  in  Gibbons  v, 
Odgen,  supra,  p.  235;  Brown  v.  Maryland,  supra,  p.  303;  Almy  u. 
California,  supra,  p.  404;  Henderson  v.  Mayor,  supra^^.  244;  and 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  supra,  p.  282;  and 
citing  many  other  cases,  the  court  continues.] 


I 


I 


LOTTERY   CASE.  1073 

This  reference  to  prior  adjudications  could  be  extended  if  it  were 
necessary  to  do  so.  The  cases  cited,  .however,  sufficiently  indicate 
the  grounds  upon  which  this  court  has  proceeded  when  determining 
the  meaning  and  scope  of  the  commerce  clause.  They  show  that 
commerce  among  the  States  embraces  navigation,  intercourse,  com- 
munication, traffic,  the  transit  of  persons,  and  the  transmission  of 
messages  by  telegraph.  They  also  show  that  the  power  to  regulate 
commerce  among  the  several  States  is  vested  in  Congress  as  abso- 
lutely as  it  would  be  in  a  single  government,  having  in  its  constitu- 
tion the  same  restrictions  on  the  exercise  of  the  power  as  are  found 
in  the  Constitution  of  the  United  States;  that  such  power  is  plenary, 
complete  in  itself,  and  may  be  exerted  by  Congress  to  its  utmost  ex- 
tent, subject  only  to  such  limitations  as  the  Constitution  imposes  upon 
the  exercise  of  the  powers  granted  by  it ;  and  that  in  determining 
the  character  of  the  regulations  to  be  adopted  Congress  has  a  large 
discretion  which  is  not  to  be  controlled  by  the  courts,  simply  because, 
in  their  opinion,  such  regulations  may  not  be  the  best  or  most  effec- 
tive that  could  be  employed. 

We  come,  then,  to  inquire  whether  there  is  any  solid  foundation 
upon  which  to  rest  the  contention  that  Congress  may  not  regulate  the 
carrying  of  lottery  tickets  from  one  State  to  another,  at  least  by  cor- 
porations or  companies  whose  business  it  is,  for  hire,  to  carry  tangible 
property  from  one  State  to  another. 

It  was  said  in  argument  that  lottery  tickets  are  not  of  any  real 
or  substantial  value  in  themselves,  and  therefore  are  not  subjects  of 
commerce.  If  that  were  conceded  to  be  the  only  legal  test  as  to  what 
are  to  be  deemed  subjects  of  the  commerce  that  may  be  regulated  by 
Congress,  we  cannot  accept  as  accurate  the  broad  statement  that  such 
tickets  are  of  no  value.  Upon  their  face  they  showed  that  the  lot- 
tery company  offered  a  large  capital  prize,  to  be  paid  to  the  holder  of 
the  ticket  winning  the  prize  at  the  drawing,  advertised  to  be  held  at 
Asuncion,  Paraguay.  Money  was  placed  on  deposit  in  different  banks 
in  the  United  States  to  be  applied  by  the  agents  representing  the 
lottery  company  to  the  prompt  payment  of  prizes.  These  tickets 
were  the  subject  of  traffic ;  they  could  have  been  sold  ;  and  the  holder 
was  assured  that  the  company  would  pay  to  him  the  amount  of  the 
prize  drawn.  That  the  holder  might  not  have  been  able  to  enforce 
his  claim  in  the  courts  of  any  country  making  the  drawing  of  lotteries 
illegal,  and  forbidding  the  circulation  of  lottery  tickets,  did  not  change 
the  fact  that  the  tickets  issued  by  the  foreign  company  represented 
so  much  money  payable  to  the  person  holding  them  and  who  might 
draw  the  prizes  affixed  to  them.  Even  if  a  holder  did  not  draw  a 
prize,  the  tickets,  before  the  drawing,  had  a  money  value  in  the 
market  among  those  who  chose  to  sell  or  buy  lottery  tickets.  In 
short,  a  lottery  ticket  is  a  subject  of  traffic,  and  is  so  designated  in 
the  act  of  1895.  28  Stat.  963.  That  fact  is  not  without  signifi- 
cance in  view  of  what  this  court  has  said.     That  act,  counsel  for 

68 


1074      ADDITIONAL   CASES   RELATING   TO   REGULATION    OF   COMMERCE. 

the  accused  well  remarks,  "was  intended  to  supplement  the  pro- 
visions of  prior  acts,  excluding  lottery  tickets  from  the  mails,  and 
prohibiting  the  importation  of  lottery  matter  Trom  abroad,  and  to 
prohibit  the  causing  lottery  tickets  to  be  carried,  and  lottery  tickets 
and  lottery  advertisements  to  be  transferred  from  one  State  to  an- 
other by  any  means  or  method."  15  Stat.  196 ;  17  Stat.  302  ;  19  Stat. 
90  ;  Rev.  Stat.  §  3894 ;  26  Stat.  465 ;  28  Stat.  963. 

We  are  of  opinion  that  lottery  tickets  are  subjects  of  traffic,  and 
therefore  are  subjects  of  commerce,  and  the  regulation  of  the  carriage 
of  such  tickets  from  State  to  State,  at  least  by  independent  carriers, 
is  a  regulation  of  commerce  among  the  several  States. 

But  it  is  said  that  the  statute  in  question  does  not  regulate  the 
carrying  of  lottery  tickets  from  State  to  State,  but  by  punishing  those 
who  cause  them  to  be  so  carried  Congress  in  effect  prohibits  such 
carrying;  that  in  respect  of  the  carrying  from  one  State  to  another  of 
articles  or  things  that  are,  in  fact,  or  according  to  usage  in  business, 
the  subjects  of  commerce,  the  authority  given  Congress  was  not  to 
prohibit,  but  only  to  regulate.  This  view  was  earnestly  pressed  at  the 
bar  by  learned  counsel,  and  must  be  examined. 

It  is  to  be  remarked  that  the  Constitution  does  not  define  what  is  to 
be  deemed  a  legitimate  regulation  of  interstate  commerce.  In  Gibbons 
V.  Ogden  it  was  said  that  the  power  to  regulate  such  commerce  is  the 
power  to  prescribe  the  rule  by  which  it  is  to  be  governed.  But  this 
general  observation  leaves  it  to  be  determined,  when  the  question 
comes  before  the  court,  whether  Congress,  in  prescribing  a  particular 
rule,  has  exceeded  its  power  under  the  Constitution.  While  our  gov- 
ernment must  be  acknowledged  by  all  to  be  one  of  enumerated  powers 
(M'Cullough  V.  Maryland,  4  Wheat.  316,  405,  407)  [1],  the  Consti- 
tution does  not  attempt  to  set  forth  all  the  means  by  which  such 
powers  may  be  carried  into  execution.  It  leaves  to  Congress  a  large 
discretion  as  to  the  means  that  may  be  employed  in  executing  a  given 
power.  The  sound  construction  of  the  Constitution,  this  court  has 
said,  '*  must  allow  to  the  national  legislature  that  discretion,  with 
respect  to  the  means  by  which  the  powers  it  confers  are  to  be  carried 
into  execution,  which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most  beneficial  to  the  people.  Let  the 
end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and 
all  means  which  are  appropriate,  which  are  plainly  adapted  to  that 
end,  which  are  not  prohibited,  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional."     4  Wheat.  421. 

We  have  said  that  the  carrying  from  State  to  State  of  lottery  tickets 
constitutes  interstate  commerce,  and  that  the  regulation  of  such  com- 
merce is  within  the  power  of  Congress  under  the  Constitution.  Are 
we  prepared  to  say  that  a  provision  which  is,  in  effect,  Sb prohibition  of 
the  carriage  of  such  articles  from  State  to  State  is  not  a  fit  or  appro- 
priate mode  for  the  regulation  of  that  particular  kind  of  commerce? 
If  lottery  traffic,  carried  on  through  interstate  commerce,  is  a  matter  of 


LOTTERY   CASE.  1075 

which  Congress  may  take  cognizance  and  over  which  its  power  may 
be  exerted,  can  it  be  possible  that  it  must  tolerate  the  traffic,  and 
simply  regulate  the  manner  in  which  it  may  be  carried  on?  Or  may 
not  Congress,  for  the  protection  of  the  people  of  all  the  States,  and 
under  the  power  to  regulate  interstate  commerce,  devise  such  means, 
within  the  scope  of  the  Constitution  and  not  prohibited  by  it,  as  will 
drive  that  traffic  out  of  commerce  among  the  States? 

In  determining  whether  regulation  may  not  under  some  circum- 
stances properly  take  the  form  or  have  the  effect  of  prohibition,  the 
nature  of  the  interstate  traffic  which  it  was  sought  by  the  act  of  May 
2,  1895,  to  suppress,  cannot  be  overlooked.  When  enacting  that 
statute  Congress  no  doubt  shared  the  views  upon  the  subject  of 
lotteries  heretofore  expressed  by  this  court.  In  Phalen  v.  Virginia, 
8  How.  163,  1G8,  after  observing  that  the  suppression  of  nuisances 
injurious  to  public  health  or  morality  is  among  the  most  important 
duties  of  government,  this  court  said  :  ''  Experience  has  shown  tliat 
the  common  forms  of  gambling  are  comparatively  inocuous  when 
placed  in  contrast  with  the  widespread  pestilence  of  lotteries.  Tlie 
former  are  confined  to  a  few  persons  and  places,  but  the  latter  infests 
the  whole  community;  it  enters  every  dwelling;  it  reaches  every 
class;  it  preys  upon  the  hard  earnings  of  the  poor;  it  plunders  the 
ignorant  and  simple."  In  other  cases  we  have  adjudged  that  authority 
given  by  legislative  enactment  to  carry  on  a  lottery,  although  based 
upon  a  consideration  in  money,  was  not  protected  by  the  contract 
clause  of  the  Constitution ;  this,  for  the  reason  that  no  State  may 
bargain  away  its  power  to  protect  the  public  morals,  nor  excuse  its 
failure  to  perform  a  public  duty  by  saying  that  it  had  agreed,  by  legis- 
lative enactment,  not  to  do  so.  Stone  v.  Mississippi,  101  U.  S.  814 
[1016  «];  Douglas  v.  Kentucky,  168  U.  8.  488  [1016  n]. 

If  a  State,  when  considering  legislation  for  the  suppression  of  lot- 
teries within  its  own  limits,  may  properly  take  into  view  the  evils 
that  inhere  in  the  raising  of  money,  in  that  mode,  why  may  not  Con- 
gress, invested  with  the  power  to  regulate  commerce  among  the 
several  States,  provide  that  such  commerce  shall  not  be  polluted  by 
the  carrying  of  lottery  tickets  from  one  State  to  another?  In  this 
connection  it  must  not  be  forgotten  that  the  power  of  Congress  to 
regulate  commerce  among  the  States  is  plenary,  is  complete  in  itself, 
and  is  subject  to  no  limitations  except  such  as  may  be  found  in  the 
Constitution.  What  provision  in  that  instrument  can  be  regarded  as 
limiting  the  exercise  of  the  power  granted?  What  clause  can  be 
cited  which,  in  any  degree,  countenances  the  suggestion  that  one  may, 
of  right,  carry  or  cause  to  be  carried  from  one  State  to  another  that 
which  will  harm  the  public  morals?  We  cannot  think  of  any  clause 
of  that  instrument  that  could  possibly  be  invoked  by  those  who  assert 
their  right  to  send  lottery  tickets  from  State  to  State  except  the  one 
providing  that  no  person  shall  be  depri^'ed  of  his  liberty  without  due 
process  of  law.     We  have  said  that  the  liberty  protected  by  the  Con- 


1076      ADDITIONAL  CASES   RELATING    TO    REGULATION    OP   COMMERCE. 

stitution  embraces  the  right  to  be  free  in  the  enjoyment  of  one's  fac- 
ulties ;  "  to  be  free  to  use  them  in  all  lawful  ways ;  to  live  and  work 
where  he  will ;  to  earn  his  livelihood  by  any  lawful  calling ;  to  pursue 
any  livelihood  or  avocation,  and  for  thkt  purpose  to  enter  into  all  con- 
tracts which  may  be  proper,"  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
589.  But  surely  it  will  not  be  said  to  be  a  part  of  anyone's  liberty, 
as  recognized  by  the  supreme  law  of  the  laud,  that  he  shall  be  allowed 
to  introduce  into  commerce  among  the  States  an  element  that  will  be 
confessedly  injurious  to  the  public  morals. 

If  it  be  said  that  the  act  of  1895  is  inconsistent  with  the  Tenth 
Amendment,  reserving  to  the  States  respectively,  or  to  the  people,  the 
powers  not  delegated  to  the  United  States,  the  answer  is  that  the  power 
to  regulate  commerce  among  the  States  has  been  expressly  delegated 
to  Congress. 

Besides,  Congress,  by  that  act,  does  not  assume  to  interfere  with 
traffic  or  commerce  in  lottery  tickets  carried  on  exclusively  within  the 
limits  of  any  State,  but  has  in  view  only  commerce  of  that  kind  among 
the  several  States.  It  has  not  assumed  to  interfere  with  the  completely 
internal  affairs  of  any  State,  and  has  only  legislated  in  respect  of 
a  matter  which  concerns  the  people  of  the  United  States.  As  a  State 
may,  for  the  purpose  of  guarding  the  morals  of  its  own  people,  forbid 
all  sales  of  lottery  tickets  within  its  limits,  so  Congress,  for  the  purpose 
of  guarding  the  people  of  the  United  States  against  the  "  wide- 
spread pestilence  of  lotteries  "  and  to  protect  the  commerce  which  con- 
cerns all  the  States,  may  prohibit  the  carrying  of  lottery  tickets  from 
one  State  to  another.  In  legislating  upon  the  subject  of  the  traffic  in 
lottery  tickets,  as  carried  on  through  interstate  commerce.  Congress 
only  supplemented  the  action  of  those  States  —  perhaps  all  of  them  — 
which,  for  the  protection  of  the  public  morals,  prohibit  the  drawing 
of  lotteries,  as  well  as  the  sale  or  circulation  of  lottery  tickets,  within 
their  respective  limits.  It  said,  in  effect,  that  it  would  not  permit 
the  declared  policy  of  the  States,  which  sought  to  protect  their  people 
against  the  mischiefs  of  the  lottery  business,  to  be  overthrown  or  dis- 
regarded by  the  agency  of  interstate  commerce.  We  should  hesitate 
long  before  adjudging  that  an  evil  of  such  appalling  character,  carried 
on  through  interstate  commerce,  cannot  be  met  and  crushed  by  the 
only  power  competent  to  that  end.  We  say  competent  to  that  end, 
because  Congress  alone  has  the  power  to  occupy,  by  legislation,  the 
whole  field  of  interstate  commerce.  What  was  said  by  this  court 
upon  a  former  occasion  may  well  be  here  repeated :  "  The  framers  of 
the  Constitution  never  intended  that  the  legislative  power  of  the 
nation  should  find  itself  incapable  of  disposing  of  a  subject-matter 
specifically  committed  to  its  charge."  In  re  Rahrer,  140  U.  S.  545, 
662.  If  the  carrying  of  lottery  tickets  from  one  State  to  another  be 
interstate  commerce,  and  if  Congress  is  of  opinion  that  an  effective 
regulation  for  the  suppression  of  lotteries,  carried  on  through  such 
commerce,  is  to  make  it  a  criminal  offense  to  cause  lottery  tickets  to 


LOTTERY   CASE.  1077 

be  carried  from  one  State  to  another,  we  know  of  no  authority  in  the 
courts  to  hold  that  the  means  thus  devised  are  not  appropriate  and 
necessary  to  protect  the  country  at  large  against  a  species  of  inter- 
state commerce  which,  although  in  general  use  and  somewhat  favored 
in  both  national  and  State  legislation  in  the  early  history  of  the 
country,  has  grown  into  disrepute,  and  has  become  offensive  to  the 
entire  people  of  the  Nation.  It  is  a  kind  of  traffic  which  no  one  can 
be  entitled  to  pursue  as  of  right. 

That  regulation  may  sometimes  appropriately  assume  the  form  of 
prohibition  is  also  illustrated  by  the  case  of  diseased  cattle,  trans- 
ported from  one  State  to  another.  Such  cattle  may  have,  notwith- 
standing their  condition,  a  value  in  money  for  some  purposes,  and  yet 
it  cannot  be  doubted  that  Congress,  under  its  power  to  regulate  com- 
merce, may  either  provide  for  their  being  inspected  before  trans- 
portation begins  or,  in  its  discretion,  may  prohibit  their  being 
transported  from  one  State  to  another.  Indeed,  by  the  act  of 
May  29,  1884,  chap.  60  (23  Stat,  at  L.  32,  §  6),  Congress  has  pro- 
vided :  "  That  no  railroad  company  within  the  United  States,  or  the 
ownera  or  masters  of  any  steam  or  sailing,  or  other  vessel  or  boat, 
shall  receive  for  transportation  or  transport,  from  one  State  or  Terri- 
tory to  another,  or  from  any  State  into  the  District  of  Columbia,  or 
from  the  District  into  any  State,  any  live  stock  affected  with  any  con- 
tagious, infectious,  or  communicable  disease,  and  especially  the  dis- 
ease known  as  pleuro-pneumonia ;  nor  shall  any  person,  company,  or 
corporation  deliver  for  such  transportation  to  any  railroad  company 
or  master  or  owner  of  any  boat  or  vessel,  any  live  stock,  knowing 
them  to  be  affected  with  any  contagious,  infectious,  or  communicable 
disease;  nor  shall  any  person,  company,  or  corporation  drive  on  foot 
or  transport  in  private  conveyance  from  one  State  or  Territory  to  an- 
other, or  from  any  State  into  the  District  of  Columbia,  or  from  the 
District  into  any  State,  any  live  stock,  knowing  them  to  be  affected 
with  any  contagious,  infectious,  or  communicable  disease,  and  espe- 
cially the  disease  known  as  pleuro-pneumonia."  Reid  v.  Colorado, 
187  U.  S.  137. 

The  act  of  July  2,  1890  (26  Stat.  209,  chap.  647),  known  as  the 
Sherman  Anti-Trust  Act,  and  which  is  based  upon  the  power  of  Con- 
gress to  regulate  commerce  among  the  States,  is  an  illustration  of 
the  proposition  that  regulation  may  take  the  form  of  prohibition. 
The  object  of  that  act  was  to  protect  trade  and  commerce  against  un- 
lawful restraints  and  monopolies.  To  accomplish  that  object  Con- 
gress declared  certain  contracts  to  be  illegal.  That  act,  in  effect, 
prohibited  the  doing  of  certain  things,  and  its  prohibitory  clauses 
have  been  sustained  in  several  cases  as  valid  under  the  power  of  Con- 
gress to  regulate  interstate  commerce.  United  States  v.  Trans- 
Mission  Freight  Asso.,  166  U.  S.  290;  United  States  v.  Joint  Traffic 
Asso.,  171  U.  S.  505;  Addyston  Pipe  &  Steel  Co.  v.  United  States, 
175  U.  S.  211.     In  the  case  last  named  the  court,  referring  to  the 


1078      ADDITIONAL   CASES   RELATING   TO   REGULATION    OF   COMMERCE. 

power  of  Congress  to  regulate  commeroe  among  the  States,  said:  ''In 
Gibbons  v.  Ogden,  9  Wheat.  1  [235],  the  power  was  declared  to  be 
complete  in  itself,  and  to  acknowledge  no  limitations  other  than  are 
prescribed  by  the  Constitution.  Under  this  grant  of  power  to  Con- 
gress that  body,  in  our  judgment,  may  enact  such  legislation  as  shall 
declare  void  and  prohibit  the  performance  of  any  contract  between 
individuals  or  corporations  where  the  natural  and  direct  effect  of  such 
a  contract  will  be,  when  carried  out,  to  directly,  and  not  as  a  mere 
incident  to  other  and  innocent  purposes,  regulate  to  any  substantial 
extent  interstate  commerce.  (And  when  we  speak  of  interstate  we 
also  include  in  our  meaning  foreign  commerce.)  We  do  not  assent 
to  the  correctness  of  the  proposition  that  the  constitutional  guaranty 
of  liberty  to  the  individual  to  enter  into  private  contracts  limits  the 
power  of  Congress  and  prevents  it  from  legislating  upon  the  subject 
of  contracts  of  the  class  mentioned.  The  power  to  regulate  interstate 
commerce  is,  as  stated  by  Chief  Justice  Marshall,  full  and  complete 
in  Congress,  and  there  is  no  limitation  in  the  grant  of  the  power 
which  excludes  private  contracts  of  the  nature  in  question  from  the 
jurisdiction  of  that  body.  Nor  is  any  such  limitation  contained  in 
that  other  clause  of  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  or  property  without  due  process  of 
law."  Again:  "The  provision  in  the  Constitution  does  not,  as  we 
believe,  exclude  Congress  from  legislating  with  regard  to  contracts 
of  the  above  nature  while  in  the  exercise  of  its  constitutional  right  to 
regulate  commerce  among  the  States.  On  the  contrary,  we  think  the 
provision  regarding  the  liberty  of  the  citizen  is,  to  some  extent,  lim- 
ited by  the  commerce  clause  of  the  Constitution,  and  that  the  power 
of  Congress  to  regulate  interstate  commerce  comprises  the  right  to 
enact  a  law  prohibiting  the  citizen  from  entering  into  those  private 
contracts  which  directly  and  substantially,  and  not  merely  indirectly, 
remotely,  incidentally,  and  collaterally,  regulate  to  a  greater  or  less 
degree  commerce  among  the  States." 

That  regulation  may  sometimes  take  the  form  or  have  the  effect  of 
prohibition  is  also  illustrated  in  the  case  of  hi  re  Rahrer,  140  U.  S. 
545.  In  Mugler  v.  Kansas,  123  U.  S.  623  [938],  it  was  adjudged  that 
State  legislation  prohibiting  the  manufacture  of  spirituous,  malt, 
vinous,  fermented,  or  other  intoxicating  liquors  within  the  limits  of 
the  State,  to  be  there  sold  or  bartered  for  general  use  as  a  beverage, 
does  not  necessarily  infringe  any  right,  privilege,  or  immunity  secured 
by  the  Constitution  of  the  United  States  or  by  the  amendments 
thereto.  Subsequently  in  Bowman  v.  Chicago  &  N.  W.  R.  Co.,  125 
U.  S.  465,  this  court  held  that  ardent  spirits,  distilled  liquors,  ale, 
and  beer  were  subjects  of  exchange,  barter,  and  traffic,  and  were  so 
recognized  by  the  usages  of  the  commercial  world,  as  well  as  by  the 
laws  of  Congress  and  the  decisions  of  the  courts.  In  Leisy  v.  Hardin, 
135  U.  S.  100  [378],  the  court  again  held  that  spirituous  liquors 
were  recognized  articles  of  commerce,  and  declared  a  statute  of  Iowa 


J 


LOTTERY   CASE.  1079 

prohibiting  the  sale  within  its  limits  of  any  intoxicating  liquors, 
except  for  pharmaceutical,  medicinal,  chemical,  or  sacramental  pur- 
poses, under  a  State  license,  to  be  repugnant  to  the  commerce  clause 
of  the  Constitution,  if  applied  to  tlie  sale  within  the  State  by  the 
importer,  in  the  original,  unbroken  packages  of  such  liquors  manu- 
factured in  and  brought  from  another  State.  And  in  determining 
whether  a  State  could  prohibit  the  sale  within  its  limits  in  original, 
unbroken  packages,  of  ardent  spirits,  distilled  liquors,  ale,  and  beer, 
imported  from  another  State,  this  court  said  that  they  were  recog- 
nized by  the  laws  of  Congress  as  well  as  by  the  commercial  world 
as  ''subjects  of  exchange,  barter,  and  traffic,"  and  that  "whatever 
our  individual  views  may  be  as  to  the  deleterious  or  dangerous  qual- 
ities of  particular  articles,  we  cannot  hold  that  any  articles  which 
Congress  recognized  as  subjects  of  commerce  are  not  such."  Leisy  v. 
Hardin,  135  U.  S.,  100,  110,  125  [378]. 

Then  followed  the  passage  by  Congress  of  the  act  of  August  8, 
1890  (26  Stat.  313,  chap.  728),  providing  "  that  all  fermented,  dis- 
tilled, or  other  intoxicating  liquors  or  liquids  transported  into  any 
State  or  Territory,  or  remaining  therein  for  use,  consumption,  sale,  or 
storage  therein,  shall,  upon  arrival  in  such  State  or  Territory,  be  sub- 
ject to  the  operation  and  effect  of  the  laws  of  such  State  or  Territory 
enacted  in  the  exercise  of  its  police  powers,  to  the  same  extent  and  in 
the  same  manner  as  though  such  liquids  or  liquors  had  been  produced 
in  such  State  or  Territory,  and  shall  not  be  exempt  therefrom  by  reason 
of  being  introduced  therein  in  original  packages  or  otherwise."  That 
act  was  sustained  in  the  Rahrer  case  as  a  valid  exercise  of  the  power 
of  Congress  to  regulate  commerce  among  the  States. 

In  Rhodes  v.  Iowa,  170  U.  S.  412,  426  [390],  that  statute  —  all  of 
its  provisions  being  regarded  —  was  held  as  not  causing  the  power  of 
the  State  to  attach  to  an  interstate  commerce  shipment  of  intoxicating 
liquors  "  whilst  tlie  merchandise  was  in  transit  under  such  shipment, 
and  until  its  arrival  at  the  point  of  destination  and  delivery  there  to 
the  consignee." 

Thus,  under  its  power  to  regulate  interstate  commerce,  as  involved 
in  the  transportation,  in  original  packages,  of  ardent  spirits  from  one 
State  to  another,  Congress,  by  the  necessary  effect  of  the  act  of  1890, 
made  it  impossible  to  transport  such  packages  to  places  within  a  pro- 
hibitory State  and  there  dispose  of  their  contents  by  sale ;  although 
it  had  been  previously  held  that  ardent  spirits  were  recognized  arti- 
cles of  commerce  and,  until  Congress  otherwise  provided,  could  be 
imported  into  a  State,  and  sold  in  the  original  packages,  despite  the 
will  of  the  State.  If  at  the  time  of  the  passage  of  the  act  of  1890  all 
the  States  had  enacted  liquor  laws  prohibiting  the  sale  of  intoxicating 
liquors  within  their  respective  limits,  then  the  act  would  necessarily 
have  had  the  effect  to  exclude  ardent  spirits  altogether  from  com- 
merce among  the  States  ;  for  no  one  would  ship,  for  purposes  of  sale, 
packages  containing  such  spirits  to  points  within  any  State  that  for- 


1080      ADDITIONAL   CASES   RELATING   TO    REGULATION   OF   COMMERCE. 

bade  their  sale  at  any  time  or  place,  even  in  unbroken  packages,  and, 
in  addition,  provided  for  the  seizure  and  forfeiture  of  such  packages. 
So  that  we  have  in  the  Rahrer  case  a  recognition  of  the  principle  that 
the  power  of  Congress  to  regulate  interstate  commerce  may  some- 
times be  exerted  with  the  effect  of  excluding  particular  articles  from 
such  commerce. 

It  is  said,  however,  that  if,  in  order  to  suppress  lotteries  carried 
on  through  interstate  commerce,  Congress  may  exclude  lottery  tick- 
ets from  such  commerce,  that  principle  leads  necessarily  to  the 
conclusion  that  Congress  may  arbitrarily  exclude  from  commerce 
among  the  States  any  article,  commodity,  or  thing,  of  whatever 
kind  or  nature,  or  however  useful  or  valuable,  which  it  may  choose, 
no  matter  with  what  motive,  to  declare  shall  not  be  carried  from  one 
State  to  another.  It  will  be  time  enough  to  consider  the  constitu- 
tionality of  such  legislation  when  we  must  do  so.  The  present  case 
does  not  require  the  court  to  declare  the  full  extent  of  the  power  that 
Congress  may  exercise  in  the  regulation  of  commerce  among  the 
States.  We  may,  however,  repeat,  in  this  connection,  what  the  court 
has  heretofore  said,  that  the  power  of  Congress  to  regulate  commerce 
among  the  States,  although  plenary,  cannot  be  deemed  arbitrary, 
since  it  is  subject  to  such  limitations  or  restrictions  as  are  pre- 
scribed by  the  Constitution.  This  power,  therefore,  may  not  be 
exercised  so  as  to  infringe  rights  secured  or  protected  by  that  in- 
strument. It  would  not  be  difficult  to  imagine  legislation  that 
would  be  justly  liable  to  such  an  objection  as  that  stated,  and  be 
hostile  to  the  objects  for  the  accomplishment  of  which  Congress 
was  invested  with  the  general  power  to  regulate  commerce  among 
the  several  States.  But,  as  often  said,  the  possible  abuse  of  a  power 
is  not  an  argument  against  its  existence.  There  is  probably  no  gov- 
ermental  power  that  may  not  be  exerted  to  the  injury  of  the  public. 
If  what  is  done  by  Congress  is  manifestly  in  excess  of  the  powers 
granted  to  it,  then  upon  the  courts  will  rest  the  duty  of  adjudging 
that  its  action  is  neither  legal  nor  binding  upon  the  people.  But  if 
what  Congress  does  is  within  the  limits  of  its  power,  and  is  simply 
unwise  or  injurious,  the  remedy  is  that  suggested  by  Chief  Justice 
Marshall  in  Gibbons  v.  Ogden,  when  he  said :  "  The  wisdom  and  the 
discretion  of  Congress,  their  identity  with  the  people,  and  the  influ- 
ence which  their  constituents  possess  at  elections,  are,  in  this,  as  in 
many  other  instances,  as  that,  for  example,  of  declaring  war,  the  sole 
restraints  on  which  they  have  relied,  to  secure  them  from  its  abuse. 
They  are  the  restraints  on  which  the  people  must  often  rely  solely, 
in  all  representative  governments." 

The  whole  subject  is  too  important,  and  the  questions  suggested  by 
its  consideration  are  too  difficult  of  solution  to  justify  any  attempt  to 
lay  down  a  rule  for  determining  in  advance  the  validity  of  every  stat- 
ute that  may  be  enacted  under  the  commerce  clause.  We  decide 
nothing  more  in  the  present  case  than  that  lottery  tickets  are  sub- 


NORTHERN  SECURITIES  COMPANY  V.  UNITED  STATES.  1081 

jects  of  traffic  among  those  who  choose  to  sell  or  buy  them  ;  that  the 
carriage  of  such  tickets  by  independent  carriers  from  one  State  to 
another  is  therefore  interstate  commerce  ;  that  under  its  power  to 
regulate  commerce  among  the  several  States  Congress  —  subject 
to  the  limitations  imposed  by  the  Constitution  upon  the  exercise 
of  the  powers  granted  —  has  plenary  authority  over  such  commerce, 
and  may  prohibit  the  carriage  of  such  tickets  from  State  to  State  ; 
and  that  legislation  to  that  end,  and  of  that  character,  is  not  incon- 
sistent with  any  limitation  or  restriction  imposed  upon  the  exercise 
of  the  powers  granted  to  congress. 

Judgment  affirmed.^ 


NOKTHERN   SECURITIES   COMPANY  v.   UNITED  STATES. 
193  U.  S.  197;  24  Sup.  Ct.  Rep.  436.    1904. 

[Appeal  from  a  decree  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Minnesota  in  favor  of  the  United  States  in  a  suit 
instituted  by  it  against  the  Northern  Securities  Company  and  other 
defendants.] 

Mr.  Justice  Harlan  announced  the  affirmance  of  the  decree  of 
the  Circuit  Court,  and  delivered  the  following  opinion : 

This  suit  was  brought  by  the  United  States  against  the  Northern 
Securities  Company,  a  corporation  of  New  Jersey  ;  the  Great  North- 
ern Railway  Company,  a  corporation  of  Minnesota ;  the  Northern 
Pacific  Railway  Company,  a  corporation  of  Wisconsin  ;  James  J. 
Hill,  a  citizen  of  Minnesota;  and  William  P.  Clough,  D.  Willis 
James,  John  S.  Kennedy,  J.  Pierpont  Morgan,  Robert  Bacon,  George 
F.  Baker,  and  Daniel  S.  Lament,  citizens  of  New  York. 

Its  general  object  was  to  enforce,  as  against  the  defendants,  the 
provisions  of  the  statute  of  July  2,  1890,  commonly  known  as  the 
Anti-Trust  Act,  and  entitled  "An  Act  to  Protect  Trade  and  Commerce 
Against  Unlawful  Restraints  and  Monopolies."  26  Stat.  209.  By 
the  decree  below  the  United  States  was  given  substantially  the  relief 
asked  for  in  the  bill. 

As  the  act  is  not  very  long,  and  as  the  determination  of  the  par- 
ticular questions  arising  in  this  case  may  require  a  consideration  of 
the  scope  and  meaning  of  most  of  its  provisions,  it  is  here  given 
in  full : 

^  Mb.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice  Brewer,  Mr. 
Justice  Shiras,  and  Mr.  Justice  1'eckham,  dissented  on  the  ground  that  lottery 
tickets  are  not  articles  of  commerce,  and  on  the  further  ground  that  the  power  to  regu- 
late interstate  commerce  does  not  carry  with  it  tlie  absolute  power  to  prohibit  the 
transportation  of  articles  of  commerce. 


1082      ADDITIONAL   CASES   RELATING   TO   REGULATION    OF    COMMERCE. 

"  Section  1.  Every  contract,  combination  in  the  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce  among 
the  several  States,  or  with  foreign  nations,  is  hereby  declared  to 
be  illegal.  Every  person  who  shall  make  any  such  contract,  or  en- 
gage in  any  such  combination  or  conspiracy,  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be  punished  by 
fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment  not  ex- 
ceeding one  year,  or  by  both  said  punishments,  in  the  discretion  of 
the  court. 

"  Sec.  2.  Every  person  who  shall  monopolize,  or  attempt  to  mon- 
opolize, or  combine  or  conspire  with  any  other  person  or  persons  to 
monopolize,  any  part  of  the  trade  or  commerce  among  the  several 
States,  or  with  foreign  nations,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished  by  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  not  exceeding 
one  year,  or  by  both  said  punishments,  in  the  discretion  of  the 
court. 

"Sec.  3.  Every  contract,  combination  in  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce  in  any  Terri- 
tory of  the  United  States  or  of  the  District  of  Columbia,  or  in 
restraint  of  trade  or  commerce  between  any  such  Territory  and  an- 
other, or  between  any  such  Territory  or  Territories  and  any  State 
or  States,  or  the  District  of  Columbia,  or  with  foreign  nations,  or 
between  the  District  of  Columbia  and  any  State  or  States  or  for- 
eign nations,  is  hereby  declared  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  combination  or  con- 
spiracy shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  shall  be  punished  by  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments in  the  discretion  of  the  court, 

"  Sec.  4.  The  several  Circuit  Courts  of  the  United  States  are  hereby 
invested  with  ijurisdiction  to  prevent  and  restrain  violations  of  this 
act ;  and  it  shall  be  the  duty  of  the  several  district  attorneys  of  the 
United  States,  in  their  respective  districts,  under  the  direction  of  the 
Attorney-General,  to  institute  proceedings  in  equity  to  prevent  and 
restrain  such  violations.  Such  proceedings  may  be  by  way  of  petition 
setting  forth  the  case  and  praying  that  such  violation  shall  be  en- 
joined or  otherwise  prohibited.  When  the  parties  complained  of 
shall  have  been  duly  notified  of  such  petition  the  court  shall  pro- 
ceed, as  soon  as  may  be,  to  the  hearing  and  determination  of  the 
case;  and,  pending  sucli  petition,  and  before  final  decree,  the  court 
may  at  any  time  make  such  temporary  restraining  order  or  pro- 
hibition as  shall  be  deemed  just  in  the  premises. 

"  Sec.  5.  Whenever  it  shall  appear  to  the  court  before  which  any 
proceeding  under  section  four  of  this  act  may  be  pending,  that  the 
ends  of  justice  require  that  other  parties  should  be  brought  before 
the  court,  the  court  may  cause  them  to  be  summoned,  whether  they 


NORTHERN  SECURITIES  COMPANY  V.  UNITED  STATES.  1083 

reside  in  the  district  in  which  the  court  is  held  or  not ;  and  sub- 
pcenas  to  that  end  may  be  served  in  any  district  by  the  marshal 
thereof. 

"  Skc.  6.  Any  property  owned  under  any  contract  or  by  any  com- 
bination, or  pursuant  to  any  conspiracy  (and  being  the  subject  thereof) 
mentioned  in  section  one  of  this  act,  and  being  in  the  course  of  trans- 
portation from  one  State  to  another,  or  to  a  foreign  country,  shall  be 
forfeited  to  the  United  States,  and  may  be  seized  and  condemned  by 
like  proceedings  as  those  provided  by  law  for  the  forfeiture,  seizure, 
and  condemnation  of  property  imported  into  the  United  States  con- 
trary to  law. 

"  Sec.  7.  Any  person  who  shall  be  injured  in  his  business  or  prop- 
erty by  any  other  person  or  corporation  by  reason  of  anything  for- 
bidden or  declared  to  be  unlawful  by  this  act  may  sue  therefor  in  any 
circuit  court  of  the  United  States  in  the  district  in  which  the  defend- 
ant resides  or  is  found,  without  respect  to  the  amount  in  controversy, 
and  shall  recover  threefold  the  damages  by  him  sustained,  and  the 
costs  of  suit,  including  a  reasonable  attorney's  fee. 

"  Sec.  8.  That  the  word  '  person,'  or  '  persons,'  wherever  used  in 
this  act,  shall  be  deemed  to  include  corporations  and  associations  ex- 
isting under  or  authorized  by  the  laws  of  either  the  United  States, 
the  laws  of  any  of  the  Territories,  the  laws  of  any  State,  or  the  law 
of  any  foreign  country." 

Is  the  case  as  presented  by  the  pleadings  and  the  evidence  one  of  a 
combination  or  a  conspiracy  in  restraint  of  trade  or  commerce  among 
the  States,  or  with  foreign  states?  Is  it  one  in  which  the  defendants 
are  properly  chargeable  with  monopolizing  or  attempting  to  monopo- 
lize aiiy  part  of  such  trade  or  commerce?  Let  us  see  what  are  the 
facts  disclosed  by  the  record. 

The  Great  Northern  Railway  Company  and  the  Northern  Pacific 
Railway  Company  owned,  controlled,  and  operated  separate  lines  of 
railway  —  the  former  road  extending  from  Superier,  and  from  Duluth 
and  St.  Paul,  to  Everett,  Seattle,  and  Portland,  with  a  branch  line  to 
Helena;  the  latter  extending  from  Ashland,  and  from  Duluth  and 
St.  Paul,  to  Helena,  SiX)kan(',  Seattle,  Tacoma,  and  Portland.  The 
two  lines,  main  and  branches,  about  9000  miles  in  length,  were  and 
are  parallel  and  competing  lines  across  the  continent  through  the 
northern  tier  of  States  between  the  Great  Lakes  and  the  Pacific,  and 
the  two  companies  were  engaged  in  active  competition  for  freight  and 
passenger  traffic,  each  road  connecting  at  its  respective  terminals  with 
lines  of  railway,  or  with  lake  and  river  steamers,  or  with  sea-going 
vessels. 

Prior  to  1893  the  Northern  Pacific  system  was  owned  or  controlled 
and  operated  by  the  Northern  Pacific  Railroad  Company,  a  corpora- 
tion organized  under  certain  acts  and  resolutions  of  Congress.  That 
company  becoming  insolvent,  its  road  and  property  passed  into  the 
hands  of  receivers  appointed  by  courts  of  the  United   States.     In 


1 


1084      ADDITIONAL    CASES   RELATING   TO    REGULATION    OP   COMMERCE. 


advance  of  foreclosure  and  sale  a  majority  of  its  bondholders  made  an 
arrangement  with  the  Great  Northern  Railway  Company  for  a  virtual 
consolidation  of  the  two  systems,  and  for  giving  the  practical  control 
of  the  Northern  Pacific  to  the  Great  Northern.  That  was  the  arrange- 
ment declared  in  Pearsall  v.  Great  Northern  R.  Co.,  161  U.  S.  646,  to 
be  illegal  under  the  statutes  of  Minnesota,  which  forbade  any  railroad 
corporation,  or  the  purchasers  or  managers  of  any  corporation,  to  con- 
solidate the  stock,  property,  or  franchises  of  such  corporation,  or  to 
lease  or  purchase  the  works  or  franchises  of,  or  in  any  way  control, 
other  railroad  corporations  owning  or  having  under  their  control  par- 
allel or  competing  lines.  Gen.  Laws,  Minn.  1874,  chap.  29,  1881, 
chap.  109. 

Early  in  1901  the  Great  Northern  and  Northern  Pacific  Railway 
Companies,  having  in  view  the  ultimate  placing  of  their  two  systems 
under  a  common  control,  united  in  the  purchase  of  the  capital  stock 
of  the  Chicago,  Burlington  and  Quincy  Railway  Company,  giving  in 
payment,  upon  an  agreed  basis  of  exchange,  the  joint  bonds  of  the 
Great  Northern  and  Northern  Pacific  Railway  Companies,  payable  in 
twenty  years  from  date,  with  interest  at  4  per  cent  per  annum.  In 
this  manner  the  two  purchasing  companies  became  the  owners  of 
$107,000,000  of  the  $112,000,000  total  capital  stock  of  the  Chicago, 
Burlington  and  Quincy  Railway  Company,  whose  lines  aggregated 
about  8,000  miles,  and  extended  from  St.  Paul  to  Chicago,  and  from 
St.  Paul  and  Chicago  to  Quincy,  Burlington,  Des  Moines,  St.  Louis, 
Kansas  City,  St.  Joseph,  Omaha,  Lincoln,  Denver,  Cheyenne,  and 
Billings,  where  it  connected  with  the  Northern  Pacific  Railroad.  By 
this  purchase  of  stock  the  Great  Northern  and  Northern  Pacific 
acquired  full  control  of  the  Chicago,  Burlington  and  Quincy  main 
line  and  branches. 

Prior  to  November  13,  1901,  defendant  Hill  and  associate  stock- 
holders of  the  Great  Northern  Railway  Company,  and  defendant 
Morgan  and  associate  stockholders  of  the  Northern  Pacific  Railway 
Company,  entered  into  a  combination  to  form,  under  the  laws  of  New 
Jersey,  a  holding  corporation,  to  be  called  the  Northern  Securities 
Company,  with  a  capital  stock  of  $400,000,000,  and  to  which  com- 
pany, in  exchange  for  its  own  capital  stock  upon  a  certain  basis  and 
at  a  certain  rate,  was  to  be  turned  over  the  capital  stock,  or  a  control- 
ling interest  in  the  capital  stock,  of  each  of  the  constituent  railway 
companies,  with  power  in  the  holding  corporation  to  vote  such  stock 
and  in  all  respects  to  act  as  the  owner  thereof,  and  to  do  whatever  it 
might  deem  necessary  in  aid  of  such  railway  companies,  or  to  enhance 
the  value  of  their  stocks.  In  this  manner  the  interests  of  individual 
stockholders  in  the  property  and  franchises  of  the  two  independent 
and  competing  railway  companies  were  to  be  converted  into  an  inter- 
est in  the  property  and  franchises  of  the  holding  corporation.  Thus, 
as  stated  in  Article  VI,  of  the  bill,  "by  making  the  stockholders 
of   each   system   jointly  interested  in  both  systems  and  by  practi-_ 


i 


NORTHERN  SECURITIES  COMPANY  V.  UNITED  STATES.  1085 

cally  pooling  the  earnings  of  both  for  the  benefit  of  the  former  stock- 
holders of  each,  and  by  vesting  the  selection  of  the  directors  and 
officers  of  each  system  in  a  common  body,  to  wit,  the  holding  corpora- 
tion, with  not  only  the  power,  but  the  duty,  to  pursue  a  policy  which 
would  promote  the  interests,  not  of  one  system  at  the  expense  of  the 
other,  but  of  both  at  the  expense  of  the  public,  all  inducement  for 
competition  between  the  two  systems  was  to  be  removed,  a  virtual 
consolidation  effected,  and  a  monopoly  of  the  interstate  and  foreign 
commerce  formerly  carried  on  by  the  two  systems  as  independent 
competitors  established." 

In  pursuance  of  this  combination,  and  to  effect  its  objects,  the 
defendant,  the  Northern  Securities  Company,  was  organized  Novem- 
ber 13.  1901,  under  the  laws  of  New  Jersey. 

Its  certificate  of  incorporation  stated  that  the  objects  for  which  the 
company  was  formed  were  :  "1.  To  acquire  by  purchase,  subscrip- 
tion, or  otherwise,  and  to  hold  as  investment  any  bonds  or  other 
securities  or  evidences  of  indebtedness,  or  any  shares  of  capital  stock 
created  or  issued  by  any  other  corporation  or  corporations,  association 
or  associations,  of  the  State  of  New  Jersey,  or  of  any  other  State, 
territory,  or  country.  2.  To  purchase,  hold,  sell,  assign,  transfer, 
mortgage,  pledge,  or  otherwise  dispose  of  any  bonds  or  other  securi- 
ties or  evidences  of  indebtedness  created  or  issued  by  any  other  cor- 
poration or  corporations,  association  or  associations,  of  the  State  of 
New  Jersey,  or  of  any  other  State,  Territory,  or  country,  and  while 
owner  thereof  to  exercise  all  the  rights,  powers,  and  privileges  of 
ownership.  3.  To  purchase,  hold,  sell,  assign,  transfer,  mortgage, 
pledge  or  otherwise  dispose  of  shares  of  the  capital  stock  of  any  other 
corporation  or  corporations,  association  or  associations,  of  the  State 
of  New  Jersey,  or  of  any  other  State,  Territory,  or  country,  and  while 
owner  of  such  stock  to  exercise  all  the  riglits,  powers,  and  privileges 
of  ownership,  including  the  right  to  vote  thereon.  4.  To  aid  in  any 
manner  any  corporation  or  association  of  which  any  bonds  or  other 
securities  or  evidences  of  indebtedness  or  stock  are  held  by  the  cor- 
poration, and  to  do  any  acts  or  things  designed  to  protect,  preserve, 
improve,  or  enhance  the  value  of  any  such  bonds  or  other  securities 
or  evidences  of  indebtedness  or  stock.  5.  To  acquire,  own,  and  hold 
such  real  and  personal  property  as  may  be  necessary  or  convenient 
for  the  transaction  of  its  business." 

It  was  declared  in  the  certificate  that  the  business  or  purpose  of  the 
corporation  was  from  time  to  time  to  do  any  one  or  more  of  such  acts 
and  things,  and  that  the  corporation  should  have  power  to  conduct  its 
business  in  other  States  and  in  foreign  countries,  and  to  have  one  or 
more  offices,  and  hold,  purchase,  mortgage,  and  convey  real  and  per- 
sonal property,  out  of  New  Jersey. 

The  total  authorized  capital  stock  of  tlie  corporation  was  fixed  at 
$400,000,000,  divided  into  4,000,000  shares  of  the  par  value  of  $100 
each.     The  amount  of  the  capital  stock  with  which  the  corporation 


1086      ADDITIONAL   CASES   RELATING    TO    REGULATION    OF   COMMERCE. 

should  commence  business  was  fixed  at  $30,000.  The  duration  of 
the  corporation  was  to  be  perpetual. 

This  charter  having  been  obtained,  Hill  and  his  associate  stock- 
holders of  the  Great  Northern  Railway  Company,  and  Morgan  and 
associate  stockholders  of  the  Northern  Pacific  Railway  Company, 
assigned  to  the  Securities  Company  a  controlling  amount  of  the  capi- 
tal stock  of  the  respective  constituent  companies  upon  an  agreed  basis 
of  exchange  of  the  capital  stock  of  the  Securities  Company  for  each 
share  of  the  capital  stock  of  the  other  companies. 

In  further  pursuance  of  the  combination,  the  Securities  Company 
acquired  additional  stock  of  the  defendant  railway  companies,  issuing 
in  lieu  thereof  its  own  stock  upon  the  above  basis,  and,  at  the  time  of 
the  bringing  of  this  suit,  held,  as  owner  and  proprietor,  substantially 
all  the  capital  stock  of  the  Northern  Pacific  Railway  Company,  and, 
it  is  alleged,  a  controlling  interest  in  the  stock  of  the  Great 
Northern  Railway  Company,  "and  is  voting  the  same  and  is  col- 
lecting the  dividends  thereon,  and  in  all  respects  is  acting  as  the 
owner  thereof,  in  the  organization,  management,  and  operation 
of  said  railway  companies  and  in  the  receipt  and  control  of  their 
earnings," 

No  consideration  whatever,  the  bill  alleges,  has  existed  or  will  exist, 
for  the  transfer  of  the  stock  of  the  defendant  railway  companies  to  the 
Northern  Securities  Company,  other  than  the  issue  of  the  stock  of  the 
latter  company  for  the  purpose,  after  the  manner,  and  upon  the  basis 
stated. 

The  Securities  Company,  the  bill  also  alleges,  was  not  organized  in 
good  faith  to  purchase  and  pay  for  the  stocks  of  the  Great  Northern 
and  Northern  Pacific  Railway  Companies,  but  solely  "  to  incorporate 
the  pooling  of  the  stocks  of  said  companies,"  and  carry  into  effect  the 
above  combination  ;  that  it  is  a  mere  depositary,  custodian,  holder, 
or  trustee  of  the  stocks  of  the  Great  Northern  and  Northern  Pacific 
Railway  Companies;  that  its  shares  of  stock  are  but  beneficial  certifi- 
cates against  said  railroad  stocks  to  designate  the  interest  of  the 
holders  in  the  pool ;  that  it  does  not  have  and  never  had  any  capital 
to  warrant  such  an  operation  ;  that  its  subscribed  capital  was  but 
$30,000,  and  its  authorized  capital  stock  of  $400,000,000  was  just 
sufficient,  when  all  issued,  to  represent  and  cover  the  exchange  value 
of  substantially  the  entire  stock  of  the  Great  Northern  and  Northern 
Pacific  Railway  Companies,  upon  the  basis  and  at  the  rate  agreed 
upon,  which  was  about  $122,000,000  in  excess  of  the  combined  capi- 
tal stock  of  the  two  railway  companies  taken  at  par ;  and  that,  unless 
prevented,  the  Securities  Company  would  acquire,  as  owner  and  pro- 
prietor, substantially  all  the  capital  stock  of  the  Great  Northern  and 
Northern  Pacific  Railway  Companies,  issuing  in  lieu  thereof  its  own 
capital  stock  to  the  full  extent  of  its  authorized  issue,  of  which, 
upon  the  agreed  basis  of  exchange,  the  former  stockholders  of  the 
Great  Northern  Railway  Company  have  received  or  would  receive  and 


I 


NORTHERN   SECURITIES   COMPANY   V.    UNITED    STATES.  1087 

hold  about  55  per  cent,  the  balance  going  to  the  former  stockholders 
of  the  Northern  Pacific  Railway  Company. 

The  government  charges  that  if  the  combination  was  held  not  to 
be  in  violation  of  the  act  of  Congress,  then  all  efforts  of  the  national 
government  to  preserve  to  the  people  the  benefits  of  free  competition 
among  carriers  engaged  in  interstate  commerce  will  be  wholly  un- 
availing, and  all  transcontinental  lines,  indeed,  the  entire  railway 
systems  of  the  country,  may  be  absorbed,  merged,  and  consolidated, 
thus  placing  the  public  at  the  absolute  mercy  of  the  holding 
corporation. 

The  several  defendants  denied  all  the  allegations  of  the  bill  im- 
puting to  them  a  purpose  to  evade  the  provisions  of  the  act  of  Con- 
gress, or  to  form  a  combination  or  conspiracy  having  for  its  object 
either  to  restrain  or  to  monopolize  commerce  or  ti'ade  among  the 
States  or  with  foreign  nations.  They  denied  that  any  combination  or 
conspiracy  was  formed  in  violation  of  the  act. 

In  our  judgment,  the  evidence  fully  sustains  the  material  allega- 
tions of  the  bill,  and  shows  a  violation  of  the  act  of  Congress,  in  so 
far  as  it  declares  illegal  every  combination  or  conspiracy  in  restraint 
of  commerce  among  the  several  States  and  with  foreign  nations,  and 
forbids  attempts  to  monopolize  such  commerce  or  any  part  of  it. 

Summarizing  the  principal  facts,  it  is  indisputable  upon  this  record 
that  under  the  leadership  of  the  defendants  Hill  and  Morgan,  the 
stockholders  of  the  Great  Northern  and  Northern  Pacific  Railway 
corporations,  having  competing  and  substantially  parallel  lines  from 
the  Great  Lakes  and  the  Mississippi  River  to  the  Pacific  Ocean  at 
Puget  Sound,  combined  and  conceived  the  scheme  of  organizing  a  cor- 
poration under  the  laws  of  New  Jersey  which  should  Jtold  the  shares 
of  the  stock  of  the  constituent  companies;  such  shareholders,  in  lieu 
of  their  shares  in  those  companies,  to  receive,  upon  an  agreed  basis  of 
value,  shares  in  the  holding  corporation  ;  that  pursuant  to  such  com- 
bination the  Northern  Securities  Company  was  organized  as  the  hold- 
ing corporation  through  which  the  scheme  should  be  executed ;  and 
iinder  that  scheme  such  holding  corporation  has  become  the  holder  — 
more  properly  speaking,  the  custodian — of  more  than  nine  tenths  of 
the  stock  of  the  Northern  Pacific,  and  more  than  three  fourths  of  the 
stock  of  the  Great  Northern,  the  stockholders  of  the  companies  who 
delivered  their  stock  receiving  upon  the  agreed  basis  shares  of  stock 
in  the  holding  corporation.  The  stockholders  of  these  two  competing 
companies  disappeared,  as  such,  for  the  moment,  but  immediately  re- 
appeared as  stockholders  of  the  holding  company,  wliicli  was  there- 
after to  guard  the  interests  of  both  sets  of  stockholders  as  a  unit,  and 
to  manage,  or  cause  to  be  managed,  both  lines  of  railroad  as  if  held 
in  one  ownership.  Necessarily  by  this  combination  or  arrangement 
the  holding  company  in  the  fullest  sense  dominates  the  situation  in 
the  interest  of  those  who  were  stockholders  of  the  constituent  com- 
panies;  as  much  so,  for  every  practical  purpose,  as  if  it  had  been 


1088      ADDITIONAL   CASES   RELATING   TO    REGULATION    OF   COMMERCE. 

itself  a  railroad  corporation  which  had  built,  owned,  and  operated 
both  lines  for  the  exclusive  benefit  of  its  stockholders.     Necessarily^ 
also,  the  constituent  companies  ceased,  under  such  a  combination,  to 
be  in  active  competition  for  trade  and  commerce  along  their  respec- 
tive lines,  and  have  become,  practically,  one  powerful  consolidated 
corporation  by  the  name  of  a  holding  corporation,  the  principal,  if 
not  the  sole,  object  for  the  formation  of  which  was  to  carry  out  the 
purpose  of  the  original  combination,  under  which  competition  between 
the  constituent  conapanies  would  cease.     Those  who  were  stockhold- 
ers of  the  Great  Northern  and  Northern  Pacific  and  became  stock- 
holders in  the  holding  company  are  now  interested  in  preventing  all 
competition  between  the  two  lines,  and,  as  owners  of  stock  or  of  cer- 
tificates of  stock  in  the  holding  company,  they  will  see  to  it  that  no 
competition  is  tolerated.     They  will  take  care  that  no  persons  •  are 
chosen  directors  of  the  holding  company  who  will  permit  competition 
between  the  constituent  companies.     The  result  of  the  combination 
is  that  all  the  earnings  of  the  constituent  companies  make  a  common 
fund  in  the  hands  of  the  Northern  Securities  Company,  to  be  dis- 
tributed, not  upon  the  basis  of  the  earnings  of  the  respective  con- 
stituent companies,  each  acting  exclusively  in  its  own  interests,  but 
upon  the  basis  of  the  certificates  of  stock  issued  by  the  holding  com- 
pany.    No  scheme  or  device  could  more  certainly  come  within  the 
words  of  the  act,  —  ''combination  in  the  form  of  a  trust  or  other- 
wise ...  in  restraint  of  commerce  among  the  several  States  or  with 
foreign  nations,"  —  or  could  more  effectively  and  certainly  suppress 
free  competition  between  the  constituent  companies.     This  combina- 
tion is,  within  the  meaning  of  the  act,  a  "  trust ; "  but  if  not,  it  is  a 
combination  in  restraint  of  interstate  and  international  commerce  ;  and 
that  is  enough  to  bring  it  under  the  condemnation  of  the  act.     The 
mere  existence  of  such  a  combination,  and  the  power  acquired  by  the 
holding  company  as  its  trustee,  constitute  a  menace  to,  and  a  restraint 
upon,  that  freedom  of  commerce  which  Congress  intended  to  recog- 
nize and  protect,  and  which  the  public  is  entitled  to  have  protected. 
If  such  combination  be  not  destroyed,  all  the  advantages  that  would 
naturally  come  to  the  public  under  the  operation  of  the  general  laws 
of  competition,  as  between  the  Great  Northern  and  Northern  Pacific 
Eailvvay  Companies,  will  be  lost,  and  the  entire  commerce  of  the  im- 
mense territory  in  the  northern  part  of  the  United  States  between 
the  Great  Lakes  and  the  Pacific  at  Puget  Sound  will  be  at  the  mercy 
of  a  single  holding  corporation,  organized  in  a  State  distant  from  the 
people  of  that  territory. 

The  Circuit  Court  was  undoubtedly  right  when  it  said  —  all  the 
judges  of  that  court  concurring  —  that  the  combination  referred  to 
"led  inevitably  to  the  following  results  :  First,  it  placed  the  control 
of  the  two  roads  in  the  hands  of  a  single  person,  to  wit,  the  Securities 
Company,  by  virtue  of  its  ownership  of  a  large  majority  of  the  stock 
of  both  companies  ;  second,  it  destroys  every  motive  for  competition 


NORTHERN   SECURITIES   COMPANY   V.    UNITED   STATES.        1089 

between  two  roads  engaged  in  interstate  traffic,  which  were  natural 
competitors  for  business,  by  pooling  the  earnings  of  the  two  roads 
for  the  common  benefit  of  the  stockhohlers  of  both  companies."  120 
Fed.  Eep.  721,  724. 

Such  being  the  case  made  by  the  record,  what  are  the  principles 
that  must  control  the  decision  of  the  present  case  ?  Do  former  ad- 
judications determine  the  controlling  questions  raised  by  the  plead- 
ings and  proofs  ? 

The  contention  of  the  government  is  that,  if  regard  be  had  to 
former  adjudications,  the  present  case  must  be  determined  in  its 
favor.  That  view  is  contested  and  the  defendants  insist  that  a  de- 
cision in  their  favor  will  not  be  inconsistent  with  anything  heretofore 
decided  and  would  be  in  harmony  with  the  act  of  Congress. 

Is  the  act  to  be  construed  as  forbidding  every  combination  or  con- 
spiracy in  restraint  of  trade  or  commerce  among  the  States  or  with 
foreign  nations  ?  Or  does  it  embrace  only  such  restraints  as  are  un- 
reasonable in  their  nature  ?  Is  the  motive  with  which  a  forbidden 
combination  or  conspiracy  was  formed  at  all  material  when  it  appears 
that  the  necessary  tendency  of  the  particular  combination  or  con- 
spirac3rin  question  is  to  restrict  or  suppress  free  competition  between 
competing  railroads  engaged  in  commerce  among  the  States  ?  Does 
the  act  of  Congress  prescribe,  as  a  ride  for  interstate  or  international 
commerce,  that  the  operation  of  the  natural  laws  of  competition  be- 
tween those  engaged  in  such  commerce  shall  not  be  restricted  or  in- 
terfered with  by  any  contract,  combination,  or  conspiracy  ?  How 
far  may  Congress  go  in  regulating  the  affairs  or  conduct  of  state  cor- 
porations engaged  as  carriers  in  commerce  among  the  States  or  of 
state  corporations  which,  although  not  directly  engaged  themselves 
in  such  commerce,  yet  have  control  of  the  business  of  interstate  car- 
riers ?  If  state  corporations  or  their  stockholders  are  found  to  be 
parties  to  a  combination  in  the  form  of  a  trust  or  otherwise,  which 
restrains  interstate  or  international  commerce,  may  they  not  be  com- 
pelled to  respect  any  rule  for  such  commerce  that  may  be  lawfully 
prescribed  by  Congress  ? 

These  questions  were  earnestly  discussed  at  the  bar  by  able  coun- 
sel, and  have  received  the  full  consideration  which  their  importance 
demands. 

The  first  case  in  this  court  arising  under  the  Anti-Trust  Act  was 
United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1  [263].  The  next 
case  was  that  of  United  States  v.  Trans-Missouri  Freight  Associ- 
ation, 166  U.  S.  290.  That  was  followed  by  United  States  ?-.  Joint 
Traffic  Association,  171  U.  S.  505;  Hopkins  v.  United  States,  171 
U.  S.  578;  Anderson  v.  United  States,  171  U.S.  C04;  Addyston 
Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211,  and  Montague  & 
Co.  V.  Lowry,  193  U.  S.  38.  To  these  may  be  added  Pearsall  v.  Great 
Northern  Railway,  161  U.  S.  646,  which,  although  not  arising  under 
the  Anti-Trust  Act,  involved  an  agreement  under  which  the  Great 

69 


1090      ADDITIONAL   CASES   RELATING    TO    REGULATION   OF    COMMERCE. 

Northern  and  Northern  Pacific  Railway  companies  should  be  con- 
solidated and  by  which  competition  between  those  companies  was  to 
cease.  In  United  States  v.  E.  C.  Knight  Co.,  it  was  lield  that  the 
agreement  or  arrangement  there  involved  had  reference  only  to  the 
manufacture  or  2>'>'cdiiction  of  sugar  by  those  engaged  in  the  alleged 
combination,  but  if  it  had  directly  embraced  interstate  or  inter- 
national commerce,  it  would  then  have  been  covered  by  the  Anti-Trust 
Act  and  would  have  been  illegal ;  in  United  States  v.  Trans-Mis- 
souri Freight  Association,  that  an  agreement  between  certain  railroad 
companies  providing  for  establishing  and  maintaining,  for  their  mu- 
tual protection,  reasonable  rates,  rules,  and  regulations  in  respect  of 
freight  traffic,  through  and  local,  and  by  which  free  competition 
among  those  companies  was  restricted,  was,  by  reason  of  such  restric- 
tion, illegal  under  the  Anti-Trust  Act ;  in  United  States  v.  Joint  Traffic 
Association,  that  an  arrangement  between  certain  railroad  companies 
in  reference  to  railroad  traffic  among  the  States,  by  which  the  railroads 
involved  were  not  subjected  to  competition  among  themselves,  was 
also  forbidden  by  the  act ;  in  Hopkins  v.  United  States  and  Anderson 
V.  United  States,  that  the  act  embraced  only  agreements  that  had 
direct  connection  with  interstate  commerce,  and  that  such  commerce 
comprehended  intercourse  for  all  the  purposes  of  trade  in  any  and  all 
its  forms,  including  the  transportation,  purchase,  sale,  and  exchange 
of  commodities  between  citizens  of  different  States,  and  the  power  to 
regulate  it  embraced  all  the  instrumentalities  by  which  such  com- 
merce is  conducted;  in  Addyston  Pipe  &  Steel  Co.  v.  United  States, 
all  the  members  of  the  court  concurring,  that  the  act  of  Congress 
made  illegal  an  agreement  between  certain  private  companies  or  cor- 
porations engaged  in  different  States  in  the  manufacture,  sale,  and 
transportation  of  iron  pipe,  whereby  competition  among  them  was 
avoided,  was  covered  by  the  Anti-Trust  Act ;  and  in  Montague  v. 
Lowry,  all  the  members  of  the  court  again  concurring,  that  a  com- 
bination created  by  an  agreement  between  certain  private  manufac- 
turers and  dealers  in  tiles,  grates,  and  mantels,  in  different  States, 
whereby  they  controlled  or  sought  to  control  the  price  of  such 
articles  in  those  States,  was  condemned  by  the  act  of  Congress.  In 
Pearsall  v.  Great  Northern  Railway  which,  as  already  stated,  involved 
the  consolidation  of  the  Great  Northern  and  Northern  Pacific  Rail- 
way companies,  the  court  said :  "  The  consolidation  of  these  two 
great  corporations  will  unavoidably  result  in  giving  to  the  defendant 
[the  Great  Northern]  a  monopoly  of  all  traffic  in  the  northern  half  of 
the  State  of  Minnesota,  as  well  as  of  all  transcontinental  traffic  north 
of  the  line  of  the  Union  Pacific,  against  wliich  public  regulations  will 
be  but  a  feeble  protection.  The  acts  of  the  Minnesota  legislature 
of  1874  and  1881  undoubtedly  reflected  the  general  sentiment  of  the 
public,  that  their  best  security  is  in  competition." 

We  will  not  encumber  this  opinion  by  extended  extracts  from  the 
former  opinions  of  this  court.     It  is  sufficient  to  say  that  from  the 


1 


NORTHERN   SECURITIES    COMPANY    V.    UNITED    STATES.  1091 

decisions  in  the  above  cases  certain  propositions  are  plainly  deducible 
and  embrace  the  present  case.     Those  propositions  are: 

That  although  the  act  of  Congress  known  as  the  Anti-Trust  Act  has 
no  reference  to  the  mere  manufacture  of  or  production  of  articles  or 
commodities  within  the  limits  of  the  several  States,  it  does  embrace 
and  declare  to  be  illegal  every  contract,  combination,  or  conspiracy, 
in  whatever  form,  of  whatever  nature,  and  whoever  may  be  parties  to 
it,  which  directly  or  necessarily  operates  in  restraint  of  trade  or  com- 
merce among  the  several  States  or  with  foreign  nations  ; 

That  the  act  is  not  limited  to  restraints  of  interstate  and  inter- 
national trade  or  commerce  that  are  unreasonable  in  their  nature,  but 
embraces  all  direct  restraints  im-^osQc].  by  any  combination,  conspiracy, 
or  monopoly  upon  such  trade  or  commerce ; 

That  railroad  carriers  engaged  in  interstate  or  international  trade 
or  commerce  are  embraced  by  the  act; 

That  combinations,  even  among  ^:)ri/;a!'0  manufacturers  or  dealers, 
whereby  iiiterstate  or  international  commerce  is,  restrained,  are  equally 
embraced  by  the  act ; 

That  Congress  has  the  power  to  establish  rules  by  which  interstate 
and  international  commevcQ  ahaXl  be  governed,  and,  by  the  Anti-Trust 
Act,  has  prescribed  the  rule  of  free  competition  among  those  engaged 
in  such  commerce ; 

That  every  combination  or  conspiracy  which  would  extinguish  com- 
petition between  otherwise  competing  railroads  engaged  in  interstate 
trade  or  commerce,  and  which  would  in  that  way  restrain  such  trade 
or  commerce,  is  made  illegal  by  the  act ; 

That  the  natural  effect  of  competition  is  to  increase  commerce,  and 
an  agreement  whose  direct  effect  is  to  prevent  this  play  of  competition 
restrains  instead  of  promotes  trade  and  commerce  ; 

That  to  vitiate  a  combination  such  as  the  act  of  Congress  condemns, 
it  need  not  be  shown  that  the  combination,  in  fact,  results  or  will 
result  in  a  total  suppression  of  trade  or  in  a  complete  monopoly,  but 
it  is  only  essential  to  show  that,  by  its  necessary  operation,  it  tends 
to  restrain  interstate  or  international  trade  or  commerce  or  tends  to 
create  a  monopoly  in  such  trade  or  commerce  and  to  deprive  the  pub- 
lic of  the  advantages  that  flow  from  free  competition  ; 

That  the  constitutional  guaranty  of  liberty  of  contract  does  not 
prevent  Congress  from  prescribing  the  rule  of  free  competition  for 
those  engaged  in  interstate  and  international  commerce  ;  and, 

That  under  its  power  to  regulate  commerce  among  the  several 
States  and  with  foreign  nations,  Congress  had  authority  to  enact  the 
statute  in  question. 

No  one,  we  assume,  will  deny  that  these  propositions  were  dis- 
tinctly announced  in  the  former  decisions  of  this  court.  They  can- 
not be  ignored  or  their  etfect  avoided  by  the  intimation  that  the 
court  indulged  in  obiter  dicta.  What  was  said  in  those  cases  was 
within  the  limits  of  the  issues  made  by  the  parties.     In  our  opinion, 


1092       ADDITIONAL    CASES   RELATING    TO    RECxULATION    OF    COMMERCE. 

the  recognition  of  the  principles  announced  in  former  cases  must, 
under  the  conceded  facts,  lead  to  an  affirmance  of  the  decree  below, 
unless  the  special  objections,  or  some  of  them,  which  have  been  made 
to  the  application  of  the  act  of  Congress  to  the  present  case,  are  of  a 
substantial  character.     We  will  now  consider  those  objections. 

Underlying  the  argument  in  behalf  of  the  defendants  is  the  idea 
that,  as  the  Northern  Securities  Company  is  a  state  corporation,  and 
as  its  acquisition  of  the  stock  of  the  Great  Northern  and  Northern 
Pacific  Kailway  companies  is  not  inconsistent  with  the  powers  con- 
ferred by  its  charter,  the  enforcement  of  the  act  of  Congress,  as 
against  those  corporations,  will  be  an  unauthorized  interference  by 
the  national  government  with  the  internal  commerce  of  the  States 
creating  those  corporations.  This  suggestion  does  not  at  all  impress 
us.  There  is  no  reason  to  suppose  that  Congress  had  any  purpose  to 
interfere  with  the  internal  affairs  of  the  States,  nor,  in  our  opinion,  is 
there  any  ground  whatever  for  the  contention  that  the  Anti-Trust  Act 
regulates  their  domestic  commerce.  By  its  very  terms  the  act  regu- 
lates only  commerce  among  the  States  and  with  foreign  States. 
Viewed  in  that  light,  the  act,  if  within  the  powers  of  Congress,  must 
be  respected  ;  for,  by  the  explicit  words  of  the  Constitution,  that 
instrument  and  the  laws  enacted  by  Congress  in  pursuance  of  its  pro- 
visions are  the  supreme  law  of  the  land,  "  anything  in  the  Constitu- 
tion or  laws  of  any  State  to  the  contrary  notwithstanding"  —  supreme 
over  the  States,  over  the  courts,  and  even  over  the  people  of  the 
United  States,  the  source  of  all  power  under  our  governmental 
system  in  respect  of  the  objects  for  which  the  national  government 
was  ordained.  An  act  of  Congress  constitutionally  passed  under  its 
power  to  regulate  commerce  among  the  States  and  with  foreign 
nations  is  binding  upon  all ;  as  much  so  as  if  it  were  embodied,  in 
terms,  in  the  Constitution  itself.  Ever}'  judicial  officer,  whether  of  a 
national  or  a  state  court,  is  under  the  obligation  of  an  oath  so  to 
regard  a  lawful  enactment  of  Congress.  Not  even  a  State,  still  less 
one  of  its  artificial  creatures,  can  stand  in  the  way  of  its  enforcement. 
If  it  were  otherwise,  the  government  and  its  laws  might  be  prostrated 
at  the  feet  of  local  authority.  Cohens  v.  Virginia,  6  Wheat.  264,  385, 
414.     These  views  have  been  often  expressed  by  this  court. 

It  is  said  that  whatever  may  be  the  power  of  a  State  over  such  sub- 
jects, Congress  cannot  forbid  single  individuals  from  disposing  of 
their  stock  in  a  state  corporation,  even  if  such  corporation  be  engaged 
in  interstate  and  international  commerce  ;  that  the  holding  or  pur- 
chase by  a  state  corporation,  or  the  purchase  by  individuals,  of  the 
stock  of  another  corporation,  for  whatever  purpose,  are  matters  in 
respect  of  which  Congress  has  no  authority  under  the  Constitution  ; 
that,  so  far  as  the  power  of  Congress  is  concerned,  citizens,  or  State 
corporations,  may  dispose  of  their  property  and  invest  their  money 
in  any  way  tliey  choose;  and  that  in  regard  to  all  such  matters,  citi- 
zens and  state  corporations  are  subject,  if  to  any  authority,  only  to 


NORTHERN    SECURITIES    COMPANY   V.    UNITED    STATES.  109-3 

the  lawful  authority  of  the  State  in  which  such  citizens  reside  or 
under  whose  laws  such  corporations  are  organized.  It  is  unnecessary 
in  this  case  to  consider  such  abstract,  general  questions.  The  court 
need  not  now  concern  itself  with  them.  They  are  not  here  to  be 
examined  and  determined,  and  may  well  be  left  for  consideration  in 
some  case  necessarily  involving  their  determination. 

In  this  connection,  it  is  suggested  that  the  contention  of  the  gov- 
ernment is  that  the  acquisition  and  ownership  of  stock  in  a  State 
railroad  corporation  is  itself  interstate  commerce,  if  that  corporation 
be  engaged  in  interstate  commerce.  This  suggestion  is  made  in  dif- 
ferent ways;  sometimes  in  express  words,  at  other  times  by  implica- 
tion. For  instance,  it  is  said  that  the  questian  here  is  whether  the 
power  of  Congress  over  interstate  commerce  extends  to  the  regulation 
of  the  ownership  of  the  stock  in  state  railroad  companies,  by  reason 
of  their  being  engaged  in  such  commerce.  Again,  it  is  said  that  the 
only  issue  in  this  case  is  whether  the  Northern  Securities  Company 
can  acquire  and  hold  stock  in  other  state  corporations.  Still  further, 
is  it  asked,  generally,  whether  the  organization  or  ownership  of  rail- 
roads is  not  under  the  control  of  the  States  under  whose  laws  they 
came  into  existence?  Such  statements  as  to  the  issues  in  this  case 
are,  we  think,  wholly  unwarranted,  and  are  very  wide  of  the  mark  ; 
it  is  the  setting  up  of  mere  men  of  straw  to  be  easily  stricken  down. 
We  do  not  understand  that  the  government  makes  any  such  conten- 
tions or  takes  any  such  positions  as  those  statements  imply.  It  does 
not  contend  that  Congress  may  control  the  mere  acquisition  or  the 
mere  ownership  of  stock  in  a  state  corporation  engaged  in  interstate 
commerce.  Nor  does  it  contend  that  Congress  can  control  the  organi- 
zation of  state  corporations  authorized  by  their  charters  to  engage  in 
interstate  and  international  commerce.  But  it  does  not  contend  that 
Congress  may  protect  the  freedom  of  interstate  commerce  by  any 
means  that  are  appropriate  and  that  are  lawful,  and  not  prohibited  by 
the  Constitution.  It  does  contend  that  no  state  corporation  can 
stand  in  the  way  of  the  enforcement  of  the  national  will,  legally 
expressed.  What  the  government  particularly  complains  of,  indeed, 
all  that  it  complains  of  here,  is  the  existence  of  a  combination 
among  the  stockholders  of  competing  railroad  companies  which,  in 
violation  of  the  act  of  Congress,  restrains  interstate  and  international 
commerce  through  the  agency  of  a  common  corporate  trustee,  desig- 
nated to  act  for  both  companies  in  repressing  free  competition 
between  them.  Independently  of  any  question  of  the  mere  owner- 
ship of  stock  or  of  the  organization  of  a  state  corporation,  can  it  in 
reason  be  said  that  such  a  combination  is  not  embraced  by  the  very 
terms  of  the  Anti-Trust  Act?  May  not  Congress  declare  that  combina- 
tion to  be  illegal  ?  If  Congress  legislates  for  the  protection  of  the 
public,  may  it  not  proceed  on  the  ground  that  wrongs,  when  effected  by 
a  powerful  combination,  are  more  dangerous  and  require  more  strin- 
gent supervision  than  when  they  are  to  be  effected  by  a  single  per- 


109-4      ADDITIONAL    CASES    RELATING    TO    REGULATION    OF    COMMERCE. 

son  ?  Callan  v.  Wilson,  127  U.  S.  540,  556.  How  far  may  the  courts 
go  in  order  to  give  effect  to  the  act  of  Congress,  and  remedy  the 
evils  it  was  designed  by  that  act  to  suppress?  These  are  confessedly 
questions  of  great  moment,  and  they  will  now  be  considered. 

By  the  express  words  of  the  Constitution,  Congress  has  power  to 
"  regulate  commerce  with  foreign  nations  and  among  the  several 
States,  and  with  the  Indian  tribes."  In  view  of  the  numerous  de- 
cisions of  this  court  there  ought  not,  at  this  day,  to  be  any  doubt  as 
to  the  general  scope  of  such  power.  In  some  circumstances  regula- 
tion may  properly  take  the  form  and  have  the  effect  of  prohibition. 
Li  re  Rahrer,  140  U.  S.  545  ;  Lottery  Case,  188  U.  S.  321,  355  [1071], 
and  authorities  there  cited.  Again  and  again  this  court  has  reaffirmed 
the  doctrine  announced  in  the  great  judgment  rendered  by  Chief  Jus- 
tice Marshall  for  the  court  in  Gibbons  ?».  Ogden,  9  Wheat.  1,  196,  197 
[235j,  that  the  power  of  Congress  to  regulate  commerce  among  the 
States  and  with  foreign  nations  is  the  power  "  to  prescribe  the  rule 
by  which  commerce  is  to  he  governed  ;  "  that  such  power  "  is  complete 
in  itself,  may  be  exercised  to  its  utmost  extent,  and  acknowledges  no 
limitations  other  than  are  prescribed  in  the  Constitution ;  "  that  •'  if, 
as  has  always  been  understood,  the  sovereignty  of  Congress,  though 
limited  to  specified  objects,  is  plenary  as  to  those  objects,  the  power 
over  commerce  with  foreign  nations  and  among  the  several  States  is 
vested  in  Congress  as  absolutely  as  it  would  he  in  a  single  government 
having  in  its  constitution  the  same  restrictions  on  the  exercise  of  the 
jjower  as  are  found  in  the  Constitution  of  the  United  States  ;''  that  a 
sound  construction  of  the  Constitution  allows  to  Congress  a  large  dis- 
cretion "  with  respect  to  the  means  by  which  the  powers  it  confers 
are  to  be  carried  into  execution,  which  enable  that  body  to  perform 
the  high  duties  assigned  to  it,  in  the  manner  most  beneficial  to  the 
people;  "  and  that  if  the  end  to  be  accomplished  is  within  the  scope 
of  the  Constitution,  "  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  and  which  are  not  prohibited,  are  con- 
stitutional." Brown  v.  Maryland,  12  Wheat.  419  [303] ;  Sinnot  v. 
Davenport,  22  How.  227,  238  ;  Henderson  v.  The  Mayor,  92  U.  S.  259; 
Railroad  Company  v.  Husen,  95  U.  S.  465,  472;  County  of  Mobile 
V.  Kimball,  102  U.  S.  691;  Missouri,  K.  &  T.  R.  Co.  i;."'Haber,  169 
U.  S.  613,  626 ;  The  Lottery  Case,  188  U.  S.  321,  348  [1071].  In  Cohens 
V.  Virginia,  6  Wheat.  264,  413,  this  court  said  that  the  United  States 
were,  for  many  important  purposes,  "  a  single  nation,"  and  that,  "  in 
all  commercial  regulations  we  are  one  and  the  same  people ; "  and  it 
has  since  frequently  declared  that  commerce  among  the  several  States 
was  a  unit,  and  subject  to  national  control.  Previously,  in  M'Culloch 
V.  Maryland,  4  Wheat.  316,  405  [1],  the  court  had  said  that  the  gov- 
ernment ordained  and  established  by  the  Constitution  was,  within 
the  limits  of  the  powers  granted  to  it,  "  the  government  of  all ;  its 
powers  are  delegated  by  all;  it  represents  all,  and  acts  for  all,"  and 
was  "supreme  within  its  sphere  of  action."     As  late  as  the  case  of 


NORTHERN    SECURITIES    COMPANY   V.    UNITED   STATES.         1095 

In  re  Debs,  158  U.  S.  5G4,  582,  this  court,  every  member  of  it  con- 
curring, said:  "The  entire  strength  of  the  nation  may  be  used  to  en- 
force in  any  part  of  the  land  the  full  and  free  exercise  of  all  national 
powers  and  the  security  of  all  rights  intrusted  by  the  Constitution  to 
its  care.  The  strong  arm  of  the  national  government  may  be  put 
forth  to  brush  away  all  obstructions  to  the  freedom  of  interstate  com- 
merce or  the  transportation  of  the  mails.  If  the  emergency  arises, 
the  army  of  the  Nation,  and  all  its  militia,  are  at  the  service  of  the 
nation  to  compel  obedience  to  its  laws." 

The  means  employed  in  respect  of  the  combinations  forbidden  by 
the  Anti-Trust  Act,  and  which  Congress  deemed  germane  to  the  end  to 
be  accomplished,  was  to  prescribe  as  a  rule  for  interstate  and  interna- 
tional commerce  (not  for  domestic  commerce)  that  it  should  not  be 
vexed  by  combinations,  conspiracies,  or  monopolies  which  restrain 
commerce  by  destroying  or  restricting  competition.  We  say  that 
Congress  has  prescribed  such  a  rule,  because,  in  all  the  prior  cases 
in  this  court,  the  Anti-Trust  Act  has  been  construed  as  forbidding  any 
combination  which,  by  its  necessary  operation,  destroys  or  restricts 
free  competition  among  those  engaged  in  interstate  commerce  ;  in 
other  words,  that  to  destroy  or  restrict  free  competition  in  interstate 
commerce  was  to  restrain  such  commerce.  Now,  can  this  court  say 
that  such  a  rule  is  prohibited  by  the  Constitution  or  is  not  one  that 
Congress  could  appropriately  prescribe  when  exerting  its  power  under 
the  commerce  clause  of  the  Constitution  ?  Whether  the  free  opera- 
tion of  the  normal  laws  of  competition  is  a  wise  and  wholesome  rule 
for  trade  and  commerce  is  an  economic  question  which  this  court  need 
not  consider  or  determine.  Undoubtedly,  there  are  those  who  think 
that  the  general  business  interests  and  prosperity  of  the  country  will 
be  best  promoted  if  the  rule  of  competition  is  not  applied.  But  there 
are  others  who  believe  that  such  a  rule  is  more  necessary  in  these 
days  of  enormous  wealth  than  it  ever  was  in  any  former  period  of  our 
history.  Be  all  this  as  it  may,  Congress  has,  in  effect,  recognized  the 
rule  of  free  competition  by  declaring  illegal  every  combination  or 
conspiracy  in  restraint  of  interstate  and  international  commerce.  As, 
in  the  judgment  of  Congress,  the  public  convenience  and  the  general 
welfare  will  be  best  subserved  when  the  natural  laws  of  competition 
are  left  undisturbed  by  those  engaged  in  interstate  commerce,  and  as 
Congress  has  embodied  that  rule  in  a  statute,  that  must  be,  for  all, 
the  end  of  the  matter,  if  this  is  to  remain  a  government  of  laws,  and 
not  of  men. 

It  is  said  that  railroad  corporations  created  under  the  laws  of  a 
State  can  only  be  consolidated  with  the  authority  of  the  State.  Why 
that  suggestion  is  made  in  this  case  we  cannot  understand,  for  there 
is  no  pretense  that  the  combination  here  in  question  was  under  the 
authority  of  the  States  under  whose  laws  these  railroad  corporations 
were  created.  But  even  if  the  State  allowed  consolidation,  it  would 
not  follow  that  the  stockholders  of  two  or  more  state  railroad  corpo- 


1096      ADDITIONAL   CASES   RELATING   TO   REGULATION   OF   COMMERCE. 

rations,  having  competing  lines  and  engaged  in  interstate  commerce, 
could  lawfully  combine  and  form  a  distinct  corporation  to  hold  the 
stock  of  the  constituent  corporations,  and,  by  destroying  competition 
between  them,  in  violation  of  the  act  of  Congress,  restrain  commerce 
among  the  States  and  with  foreign  nations. 

The  rule  of  competition,  prescribed  by  Congress,  Avas  not  at  all  new 
in  trade  and  commerce.  And  we  cannot  be  in  any  doubt  as  to  the 
reason  that  moved  Congress  to  the  incorporation  of  that  rule  into  a 
statute.  That  reason  was  thus  stated  in  United  States  v.  Joint  Traffic 
Association :  "  Has  not  Congress,  with  regard  to  interstate  commerce, 
and  in  the  course  of  regulating  it,  in  the  case  of  railroad  corporations, 
the  power  to  say  that  no  contract  or  combination  shall  be  legal  which 
shall  restrain  trade  and  commerce  by  shutting  out  the  operation  of 
the  general  law  of  competition  ?  "We  think  it  has.  ...  It  is  the 
combination  of  these  large  and  powerful  corporations,  covering  vast 
sections  of  territory  and  influencing  trade  throughout  the  whole  ex- 
tent thereof,  and  acting  as  one  body  in  all  the  matters  over  which  the 
combination  extends,  that  constitutes  the  alleged  evil,  and  in  regard 
to  which,  so  far  as  the  combination  operates  iipon  and  restrains  inter- 
state commerce,  Congress  has  power  to  legislate  and  to  prohibit  " 
(pp.  569,  571).  That  such  a  rule  was  applied  to  interstate  commerce 
should  not  have  surprised  anyone.  Indeed,  when  Congress  declared 
contracts,  combinations,  and  conspiracies  in  restraint  of  trade  or  com- 
merce to  be  illegal,  it  did  nothing  more  than  apply  to  interstate  com- 
merce a  rule  that  had  been  long  applied  by  the  several  States  when 
dealing  with  combinations  that  were  in  restraint  of  their  domestic 
commerce.  The  decisions  in  state  courts  upon  this  general  subject 
are  not  only  numerous  and  instructive,  but  they  show  the  circum- 
stances under  which  the  anti-trust  act  was  passed.  It  may  well 
be  assumed  that  Congress,  when  enacting  that  statute,  shared  the 
general  apprehension  that  a  few  powerful  corporations  or  combina- 
tions sought  to  obtain,  and,  unless  restrained,  would  obtain,  such 
absolute  control  of  the  entire  trade  and  commerce  of  the  country 
as  would  be  detrimental  to  the  general  welfare. 

In  Morris  Run  Coal  Co.  V.  Barclay  Coal  Co.,  68  Pa.  St.  173,  186,  the 
Supreme  Court  of  Pennsylvania  dealt  with  a  combination  of  coal 
companies  seeking  the  control,  within  a  large  territory,  of  the  entire 
market  for  bituminous  coal.  The  court,  observing  that  the  combina- 
tion was  wide  in  its  scope,  general  in  its  influence,  and  injurious  in 
its  effects,  said :  "  When  competition  is  left  free,  individual  error  or 
folly  will  generally  find  a  correction  in  the  conduct  of  others.  But 
here  is  a  combination  of  all  the  companies  operating  in  the  Blossburg 
and  Barclay  mining  regions,  and  controlling  their  entire  productions. 
They  have  combined  together  to  govern  the  supply  and  the  price  of 
coal  in  all  markets  from  the  Hudson  to  the  Mississippi  rivers,  and 
from  Pennsylvania  to  the  Lakes.  This  combination  has  a  power  in 
its  confederated  form  which  no  individual  action  can  confer.     The 


NORTHERN   SECURITIES   COMPANY   V.    UNITED   STATES.  1097 

public  interest  must  succumb  to  it,  for  it  has  left  no  competition  free 
to  correct  its  baleful  influence.  When  the  supply  of  coal  is  suspended 
the  demand  for  it  becomes  importunate,  and  prices  must  rise.  Or 
if  the  supply  goes  forward,  the  prices  fixed  by  the  confederates  must 
accompany  it.  The  domestic  hearth,  the  furnaces  of  the  iron  master, 
and  the  fires  of  the  manufacturer,  all  feel  the  restraint,  while  many 
dependent  hands  are  paralyzed  and  hungry  mouths  are  stinted.  The 
influence  of  a  lack  of  supply  or  a  rise  in  the  price  of  an  article  of 
such  prime  necessity  cannot  be  measured.  It  permeates  the  entire 
mass  of  the  community  and  leaves  few  of  its  members  untouched  by 
its  withering  blight.  Such  a  combination  is  more  than  a  contract; 
it  is  an  offense.  ...  In  all  such  combinations,  where  the  purpose  is 
injurious  or  unlawful,  the  gist  of  the  offense  is  the  conspiracy.  Men 
can  often  do  by  the  combination  of  many  what,  severally,  no  one  could 
accomplish,  and  even  what,  when  done  by  one,  would  be  innocent. 
.  .  .  There  is  a  potency  in  numbers  \olien  combined  which  the  law  can- 
not overlook,  where  injury  is  the  consequence."  The  same  princiiiles 
were  applied  in  Arnot  v.  Pittston  &  Elmira  Coal  Co.,  68  N.  Y.  558,  565, 
which  was  the  case  of  a  combination  of  two  coal  companies  in  order 
to  give  one  of  them  a  monopoly  of  coal  in  a  particular  region,  the 
Court  of  Appeals  of  New  York  holding  that  "  a  combination  to  effect 
such  a  purpose  is  inimical  to  the  interests  of  the  public,  and  that  all 
contracts  designed  to  effect  such  an  end  are  contrary  to  public  policy, 
and  therefore  illegal."  They  were  also  applied  by  the  Supreme  Court 
of  Ohio  in  Central  Ohio  Salt  Co.  v.  Guthrie,  35  Ohio  St.  666,  672, 
which  was  the  case  of  a  combination  among  manufacturers  of  salt  in 
a  large  salt-producing  territory,  the  court  saying  :  "  It  is  no  answer 
to  say  that  competition  in  the  salt  trade  was  not  in  fact  destroyed,  or 
that  the  price  of  the  commodity  was  not  unreasonably  advanced. 
Courts  will  not  stop  to  inquire  as  to  the  degree  of  injury  inflicted  upon 
the  public;  it  is  enough  to  know  that  the  inevitable  tendency  of  such 
contracts  is  injurious  to  the  public." 

So,  in  Craft  v.  McConoughy,  79  111.  346,  350,  which  was  the  case 
of  a  combination  among  grain  dealers  by  which  competition  was 
stifled,  the  court  saying  :  "  So  long  as  competition  was  free,  the 
interest  of  the  public  was  safe.  The  laws  of  trade,  in  connection 
with  the  rigor  of  competition,  was  all  the  guarantee  the  public 
required;  but  the  secret  combination  created  by  the  contract  destroyed 
all  competition,  and  created  a  monopoVy  against  which  the  public 
interest  had  no  protection."  Again,  in  People  v.  Chicago  Gas  Trust 
Co.,  130  111.  269,  297,  which  involved  the  validity  of  the  organiza- 
tion of  a  gas  corporation  which  obtained  a  monopoly  in  the  business 
of  furnishing  illuminating  gas  in  the  city  of  Chicago  by  buying  the 
stock  of  four  other  gas  companies,  it  was  said:  "Of  what  avail  is 
it  that  any  number  of  gas  companies  may  be  formed  under  the  gen- 
eral incorporation  law,  if  a  giant  trust  company  can  be  clothed  with 
the  power  of  buying  up  and  holding  the  stock  and  property  of  such 


1098      ADDITIONAL   CASES   RELATING   TO    REGULATION    OF   COMMERCE. 

compauies,  aud,  through  the  control  thereby  attained,  can  direct  all 
their  operations  and  weld  them  into  one  huge  combination?"  To 
the  same  effect  are  cases  almost  too  numerous  to  be  cited.  But 
among  them  we  refer  to  Richardson  v.  Buhl,  77  Mich.  632,  which 
was  the  case  of  the  organization  of  a  corporation  in  Connecticut  to 
unite  in  one  corporation  all  the  match  manufacturers  in  the  United 
States,  and  thus  to  obtain  control  of  the  business  of  manufacturing 
matches  ;  Santa  Clara  Mill  &  Lumber  Co.  v.  Hayes,  76  Cal.  387, 
390,  which  was  the  case  of  a  combination  among  manufacturers  of 
lumber,  by  which  it  could  control  the  business  in  certain  localities ; 
and  India  Bagging  Association  v.  Kock,  14  La.  Ann.  168,  which 
was  the  case  of  a  combination  among  various  commercial  firms  to 
control  the  prices  of  bagging  used  by  cotton  planters. 

The  cases  just  cited,  it  is  true,  relate  to  the  domestic  commerce  of 
the  States.  But  they  serve  to  sliow  the  authority  which  the  States 
possess  to  guard  the  public  against  comhinations  that  repress  individ- 
ual enterprise  and  interfere  with  the  operation  of  the  natural  laws  of 
competition  among  those  engaged  in  trade  within  its  limits.  They 
serve  also  to  give  point  to  the  declaration  of  this  court  in  Gibbons  v. 
Ogden,  9  Wheat.  197  [235]  —  a  principle  never  modified  by  any  sub- 
sequent decision  —  that,  subject  to  the  limitations  imposed  by  the 
Constitution  upon  the  exercise  of  the  powers  granted  by  that  instru- 
ment, "  the  power  over  commerce  with  foreign  nations  and  among 
the  several  States  is  vested  in  Congress  as  absolutely  as  it  would  be 
in  a  single  government  having  in  its  constitution  the  same  restric- 
tions on  the  exercise  of  power  as  are  found  in  the  Constitution  of 
the  United  States."  Is  there  then  any  escape  from  the  conclusion 
that,  subject  only  to  such  restrictions,  power  of  Congress  over 
interstate  and  international  commerce  is  as  full  and  complete  as  is 
the  power  of  any  State  over  its  domestic  commerce?  If  a  State  may 
strike  down  combinations  that  restrain  its  domestic  commerce  by 
destroying  free  competition  among  those  engaged  in  sucli  commerce, 
what  power,  except  that  of  Congress,  is  competent  to  protect  the 
freedom  of  interstate  and  international  commerce  when  assailed  by  a 
combination  that  restrains  such  commerce  by  stifling  competition 
among  those  engaged  in  it  ? 

iSTow  the  court  is  asked  to  adjudge  that,  if  held  to  embrace  the  case 
before  us,  the  Anti-Trust  Act  is  repugnant  to  the  Constitution  of  the 
United  States.  In  this  view  we  are  unable  to  concur.  The  conten- 
tion of  the  defendants  could  not  be  sustained  without,  in  effect,  over- 
ruling the  prior  decisions  of  this  court  as  to  the  scope  and  validity  of 
the  Anti-Trust  Act.  If,  as  the  court  has  held,  Congress  can  strike 
down  a  combination  between  private  persons  or  private  corporations 
that  restrains  trade  among  the  States  in  iron  pipe  (as  in  Add3'ston 
Pipe  &  Steel  Co.  v.  United  States),  or  in  tiles,  grates,  and  mantels 
(as  in  Montague  v.  Lowry),  surely  it  ought  not  to  be  doubted  that 
Congress  has  power  to  declare  illegal  a  combination  that  restrains 


I 


NORTHERN    SECURITIES    COMPANY   V.    UNITED   STATES.         1099 

commerce  among  the  States  and  with  foreign  nations,  as  carried 
on  over  the  lines  of  competing  railroad  companies  exercising  public 
franchises,  and  engaged  in  such  comuierce.  We  cannot  agree  that 
Congress  may  strike  down  combinations  among  manufacturers  and 
dealers  in  iron  pipe,  tiles,  grates,  and  mantels  that  restrain  com- 
merce among  the  States  ia  such  articles,  but  may  not  strike  down 
combinations  among  stockholders  of  competing  railroad  carriers, 
which  restrain  commerce  as  involved  in  the  transportation  of  pas- 
sengers and  property  among  the  several  States.  If  private  parties 
may  not,  by  combination  among  themselves,  restrain  interstate  and 
international  commerce  in  violation  of  an  act  of  Congress,  much  less 
can  such  restraint  be  tolerated  when  imposed  or  attempted  to  be 
imposed  upon  commerce  as  carried  on  over  public  highways.  Indeed, 
if  the  contentions  of  the  defendants  are  sound,  why  may  not  all  the 
railway  companies  in  the  United  States  that  are  engaged  under 
State  charters,  in  interstate  and  international  commerce,  enter  into  a 
combination  such  as  the  one  here  in  question,  and,  by  the  device  of 
a  holding  corporation,  obtain  the  absolute  control  throughout  the  entire 
country  of  rates  for  passengers  and  freight  beyond  the  power  of 
Congress  to  protect  the  public  against  their  exactions?  The  argu- 
ment in  behalf  of  the  defendants  necessarily  leads  to  such  results,  and 
places  Congress,  although  invested  by  the  people  of  the  United 
States  with  full  authority  to  regulate  interstate  and  international 
commerce,  in  a  condition  of  utter  helplessness,  so  far  as  the  protec- 
tion of  the  public  against  such  combinations    is  concerned. 

Will  it  be  said  that  Congress  can  meet  such  emergencies  by  pre- 
scribing the  rates  by  which  interstate  carriers  shall  be  governed  in  the 
transportation  of  freight  and  passengers?  If  Congress  has  the  power 
to  fix  such  rates  —  and  upon  that  question  we  express  no  opinion  — 
it  does  not  choose  to  exercise  its  power  in  that  way  or  to  that  extent. 
It  has,  all  will  agree,  a  large  discretion  as  to  the  means  to  be  employed 
in  the  exercise  of  any  power  granted  to  it.  For  the  present,  it  has 
determined  to  go  no  farther  than  to  protect  the  freedom  of  commerce 
among  the  States  and  with  foreign  states  by  declaring  illegal  all  con- 
tracts, combinations,  conspiracies,  or  monopolies  in  restraint  of  such 
commerce,  and  make  it  a  public  offense  to  violate  the  rule  thus  pre- 
scribed. How  much  further  it  may  go  we  do  not  now  say.  We 
need  only  at  this  time  consider  whether  it  has  exceeded  its  powers  in 
enacting  the  statute  here  in  question. 

Assuming,  without  further  discussion,  that  the  case  before  us  is 
within  the  terms  of  the  act,  and  that  the  act  is  not  in  excess  of  the 
powers  of  Congress,  we  recur  to  the  question :  How  far  may  the 
courts  go  in  reaching  and  suppressing  the  combination  described  in 
the  bill?  All  will  agree  that  if  the  anti-trust  act  be  constitutional, 
and  if  the  combination  in  question  be  in  violation  of  its  provisions, 
the  courts  may  enforce  the  provisions  of  the  statute  bv  such  orders 
and  decrees  as  are  necessary  or  appropriate  to  that  end  and  as  may  be 


I 


1100      ADDITIONAL    CASES   RELATING   TO    REGULATION   OP    COMMERCE. 

consistent  with  the  fundamental  rules  of  legal  procedure.  And  all, 
we  take  it,  will  agree,  as  established  firmly  by  the  decisions  of  this 
court,  that  the  power  of  Congress  over  commerce  extends  to  all  the 
instrumentalities  of  such  commerce,  and  to  ever}'  device  that  may  be 
employed  to  interfere  with  the  freedom  of  commerce  among  the  States 
and  with  foreign  nations.  Equally,  we  assume,  all  will  agree  that 
the  Constitution  and  the  legal  enactments  of  Congress  are,  by  express 
words  of  the  Constitution,  the  supreme  law  of  the  land,  anything  in 
the  constitution  and  laws  of  any  State  to  the  contrary  notwithstand- 
ing. Nevertheless,  the  defendants,  strangely  enough,  invoke  in  their 
behalf  the  Tenth  Amendment  of  the  Constitution,  which  declares  that 
"  the  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively or  to  the  people ;  "  and  we  are  confronted  with  the  suggestion 
that  any  order  or  decree  of  the  Federal  court  which  will  prevent  the 
Northern  Securities  company  from  exercising  the  power  it  acquired 
in  becoming  the  holder  of  the  stocks  of  the  Great  Northern  and 
Northern  Pacific  Eailway  companies  will  be  an  invasion  of  the  rights 
of  the  State  under  which  the  Securities  Company  was  chartered,  as 
well  as  of  the  rights  of  the  States  creating  the  other  conipanies.  In 
other  words,  if  the  State  of  New  Jersey  gives  a  charter  to  a  corpora- 
tion, and  even  if  the  obtaining  of  such  a  charter  is  in  fact  pursuant 
to  a  combination  under  which  it  becomes  the  holder  of  the  stocks  of 
shareholders  in  two  competing,  parallel  railroad  companies  engaged 
in  interstate  commerce  in  other  States,  whereby  competition  between 
the  respective  roads  of  those  companies  is  to  be  destroyed,  and  the 
enormous  commerce  carried  on  over  them  restrained  by  suppressing 
competition,  Congress  must  stay  its  hands  and  allow  such  restraint  to 
continue,  to  the  detriment  of  the  public,  because,  forsooth,  the  cor- 
porations concerned  or  some  of  them  are  State  corporations.  We 
cannot  conceive  how  it  is  possible  for  anyone  to  seriously  contend  for 
such  a  proposition.  It  means  nothing  less  than  that  Congress,  in 
regulating  interstate  commerce,  must  act  in  subordination  to  the  will 
of  the  States  when  exerting  their  power  to  create  corporations.  No 
such  view  can  be  entertained  for  a  moment. 

It  is  proper  to  say  in  passing  that  nothing  in  the  record  tends  to 
show  that  the  State  of  New  Jersey  had  any  reason  to  suspect  that 
those  who  took  advantage  of  its  liberal  incorporation  laws  had  in 
view,  when  organizing  the  Securities  Company,  to  destroy  compe- 
tition between  two  great  railway  carriers  engaged  in  interstate  com- 
merce in  distant  States  of  the  Union.  The  purpose  of  the  combination 
was  concealed  under  very  general  words  that  gave  no  clue  whatever 
to  the  real  purposes  of  those  who  brought  about  the  organization  of 
the  Securities  Company.  If  the  certificate  of  incorporation  of  that 
company  had  expressly  stated  that  the  object  of  the  company  was  to 
destro}^  competition  between  com])etiug,  parallel  lines  of  interstate 
carriers,  all  would  have  seen,  at  the  outset,  that  the  scheme  was  in 


NORTHERN    SECURITIES    COMPANY    V.    UNITED   STATES.         1101 

hostility  to  the  national  authority,  and  that  there  was  a  purpose  to 
violate  or  evade  the  act  of  Congress. 

"VYe  reject  any  such  view  of  the  relations  of  the  national  govern- 
ment and  the  States  composing  the  Union  as  that  for  which  the 
defendants  contend.  Such  a  view  cannot  be  maintained  without 
destroying  the  just  authority  of  the  United  States.  It  is  incon- 
sistent with  all  the  decisions  of  this  court  as  to  the  powers  of  the 
national  government  over  matters  committed  to  it.  No  State  can, 
by  merely  creating  a  corporation,  or  in  any  other  mode,  project  its 
authority  into  other  States,  and  across  the  continent,  so  as  to  prevent 
Congress  from  exerting  the  power  it  possesses  under  the  Constitu- 
tion over  interstate  and  international  commerce,  or  so  as  to  exempt  its 
corporation  engaged  in  interstate  commerce  from  obedience  to  any 
rule  lawfully  established  by  Congress  for  such  commerce.  It  cannot 
be  said  that  any  State  ma}'  give  a  corporation,  created  under  its  laws, 
authority  to  restrain  interstate  or  international  commerce  against  the 
will  of  the  nation  as  lawfully  expressed  by  Congress.  Every  corpo- 
ration created  by  a  State  is  necessarily  subject  to  the  supreme  law  of 
the  land.  And  yet  the  suggestion  is  made  that  to  restrain  a  State 
corporation  from  interfering  with  the  free  course  of  trade  and  com- 
merce among  the  States,  in  violation  of  an  act  of  Congress,  is  hostile 
to  the  reserved  rights  of  the  States.  The  Federal  court  may  not 
have  power  to  forfeit  the  charter  of  the  Securities  Company  ;  it  may 
not  declare  how  its  shares  of  stock  may  be  transferred  on  its  books, 
nor  prohibit  it  from  acquiring  real  estate,  nor  diminish  or  increase 
its  capital  stock.  All  these  and  like  matters  are  to  be  regulated  by 
the  State  which  created  the  company.  But  to  the  end  that  effect  be 
given  to  the  national  will,  lawfully  expressed,  Congress  may  prevent 
that  company,  in  its  capacity  as  a  holding  corporation  and  trustee, 
from  carrying  out  the  purposes  of  a  combination  formed  in  restraint 
of  interstate  commerce.  The  Secui-ities  Company  is  itself  a  part  of 
the  present  combination  ;  its  head  and  front ;  its  trustee.  It  would 
be  extraordinary  if  the  court,  in  executing  the  act  of  Congress,  could 
not  lay  hands  upon  that  company  and  prevent  it  from  doing  that 
which,  if  done,  will  defeat  the  act  of  Congress.  Upon  like  grounds 
the  court  can,  by  appropriate  orders,  prevent  the  two  competing  rail- 
road companies  here  involved  from  co-operating  with  the  Securities 
Company  in  restraining  commerce  among  the  States.  In  short,  the 
court  may  make  any  order  necessary  to  bring  about  the  dissolution  or 
suppression  of  an  illegal  combination  that  restrains  interstate  com- 
merce. All  this  can  be  done  without  infringing  in  any  degree  upon  the 
just  authority  of  the  States.  The  affirmance  of  the  judgment  below  will 
only  mean  that  no  combination,  however  powerful,  is  stronger  than 
the  law,  or  will  be  permitted  to  avail  itself  of  the  pretext  that  to  pre- 
vent it  doing  that  which,  if  done,  would  defeat  a  legal  enactment  of 
Congress,  is  to  attack  the  reserved  rights  of  the  States.  It  would  mean 
that  the  government  which  represents  all,  can,  when  acting  within  the 


1102      ADDITIONAL    CASES   RELATING   TO    REGULATION    OP    COMMERCE. 

limits  of  its  powers,  compel  obedience  to  its  authority.  It  would  mean 
that  no  device  in  evasion  of  its  provisions,  however  skilfully  such  de- 
vice may  have  been  contrived,  and  no  combination,  by  whomsoever 
formed,  is  beyond  the  reach  of  the  supreme  law  of  the  land,  if  such  device 
or  combination,  by  its  operation,  directly  restrains  commerce  among  the 
States  or  with  foreign  nations  in  violation  of  the  act  of  Congress. 

The  defendants  rely,  witb  some  confidence,  upon  the  case  of  the 
Eailroad  Company  v.  Maryland,  21  Wall.  456,  473;  22  L.  ed.  678, 
684.  But  nothing  we  have  said  is  inconsistent  with  any  principle 
announced  in  that  case.  The  court  there  recognized  the  principle 
that  a  State  has  plenary  powers  "  over  its  own  territory,  its  high- 
ways, its  franchises,  and  its  corporations,"  and  observed  that  "  we 
are  bound  to  sustain  the  constitutional  powers  and  prerogatives  of 
the  States,  as  well  as  those  of  the  United  States,  whenever  they 
are  brought  before  us  for  adjudication,  no  matter  what  may  be  the 
consequences."  Of  course,  every  State  has,  in  a  general  sense,  plen- 
ary power  over  its  corporations.  But  is  it  conceivable  that  a  State, 
when  exerting  power  over  a  corporation  of  its  creation,  may  prevent 
or  embarrass  the  exercise  by  Congress  of  any  power  with  which  it  is 
invested  by  the  Constitution  ?  In  the  case  just  referred  to  the  court 
does  not  say,  and  it  is  not  to  be  supposed  that  it  will  ever  say,  that 
any  power  exists  in  a  State  to  prevent  the  enforcement  of  a  lawful 
enactment  of  Congress,  or  to  invest  any  of  its  corporations,  in  what- 
ever business  engaged,  with  authority  to  disregard  such  enactment 
or  defeat  its  legitimate  operation.  On  the  contrary,  the  court  has 
steadily  held  to  the  doctrine,  vital  to  tlie  United  States  as  well  as 
to  the  States,  that  a  State  enactment,  even  if  passed  in  the  exer- 
cise of  its  acknowledged  powers,  must  yield,  in  case  of  conflict,  to  the 
supremacy  of  the  Constitution  of  the  United.  States  and  the  acts  of 
Congress  enacted,  in  pursuance  of  its  provisions.  This  results,  the 
court  has  said,  as  well  from  the  nature  of  the  government  as  from  the 
words  of  the  Constitution.  Gibbons  v.  Ogden,  9  Wheat.  1,  210  [235]; 
Sinnot  v.  Davenport,  22  How.  227,  243 ;  In  re  Debs,  158  U.  S.  564 ; 
Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169  U.  S.  613,  626,  627.  In 
Texas  v.  White,  7  Wall.  700,725  [838],  tlie  court  remarked  <<that 
'  the  people  of  each  State  compose  a  State,  having  its  own  government, 
and  endowed  with  all  the  functions  essential  to  separate  and  inde- 
pendent existence,'  and  that  '  without  the  States  in  union,  there  could 
be  no  such  political  body  as  the  United  States.'  County  of  Lane  v.  Ore- 
gon, 7  Wall.  76  [40].  Not  only,  therefore,  can  there  be  no  loss  of 
separate  and  independent  autonomy  to  the  States,  through  their 
union  under  the  Constitution,  but  it  may  be  not  unreasonably  said 
that  the  preservation  of  the  States,  and  the  maintenance  of  their  gov- 
ernments, are  as  much  within  the  design  and  care  of  the  Constitution 
as  the  preservation  of  tlie  Union  and  the  maintenance  of  the  national 
government."  These  doctrines  are  at  the  basis  of  our  constitutional 
govern^nent,  and  cannot  be  disregarded  with  safety. 


NORTHERN   SECURITIES   COMPANY   V.    UNITED    STATES.  1103 

The  defendants  also  rely  on  Louisville  &  I^.  R.  Co.  v.  Kentucky, 
161  U.  S.  677,  702.  In  that  case  it  was  contended  by  the  railroad 
company  that  the  assumption  of  the  State  to  forbid  the  consolidation 
of  parallel  and  competing  lines  was  an  interference  with  the  power 
of  Congress  over  interstate  commerce.  The  court  observed  that  but 
little  need  be  said  in  answer  to  such  a  propositit)n,  for  "  it  has  never 
been  supposed  that  the  dominant  power  of  Congress  over  interstate 
commerce  took  from  the  States  the  power  of  legislation  with  respect 
to  the  instruments  of  such  commerce,  so  far  as  the  legislation  was 
within  its  ordinary  police  powers."  But  that  case  distinctly  recog- 
nized that  there  was  a  division  of  power  between  Congress  and  the 
States  in  respect  to  interstate  railways,  and  that  Congress  had 
the  superior  right  to  control  that  commerce  and  forbid  interference 
therewith,  while  to  the  States  remained  the  power  to  create  and  to 
regulate  the  instruments  of  such  commerce,  so  far  as  necessary  to  the 
conservation  of  the  public  interests.  If  there  is  anything  in  that 
case  which  even  intimates  that  a  State  or  a  State  corporation  may  in 
any  way  directly  restrain  interstate  commerce,  over  which  Congress 
has,  by  the  Constitution,  comiDlete  control,  we  have  been  unable  to 

find  it. 

The  question  of  the  relations  of  the  General  Government  with  the 
States  is  again  presented  by  the  specific  contention  of  each  defendant 
that  Congress  did  not  intend  "to  limit  the  power  of  the  several  States 
to  create  corporations,  define  their  purposes,  fix  the  amount  of  their 
capital,  and  determine  who  may  buy,  own,  and  sell  their  stock."  All 
that  is  true,  generally  speaking,  but  the  contention  falls  far  short  of 
meeting  the  controlling  questions  in  this  case.  To  meet  this  con- 
tention we  must  repeat  some  things  already  said  in  this  opinion. 
But  if  what  we  have  said  be  sound,  repetition  will  do  no  harm.  So 
far  as  the  Constitution  of  the  United  States  is  concerned,  a  State  may, 
indeed,  create  a  corporation,  define  its  powers,  prescribe  the  amount 
of  its  stock  and  the  mode  in  which  it  may  be  transferred.  It  may 
even  authorize  one  of  its  corporations  to  engage  in  commerce  of  every 
kind:  domestic,  interstate,  and  international.  The  regulation  or 
control  of  purely  domestic  commerce  of  a  State  is,  of  course,  with  the 
State,  and  Congress  has  no  direct  power  over  it  so  long  as  what  is 
done  by  the  State  does  not  interfere  with  the  operations  of  the  Gen- 
eral Government,  or  any  legal  enactment  of  Congress.  A  State,  if  it 
chooses  so  to  do,  may  even  submit  to  the  existence  of  combinations 
within  its  limits  that  restrain  its  internal  trade.  But  neither  a  state 
corporation  nor  its  stockholders  can,  by  reason  of  the  nonaction  of 
the  State  or  by  means  of  any  combination  among  such  stockholders, 
interfere  with  the  complete  enforcement  of  any  rule  lawfully  devised 
by  Congress  for  the  conduct  of  commerce  among  the  States  or  with 
foreign  nations  ;  for,  as  we  have  seen,  interstate  and  international 
commerce  is,  by  the  Constitution,  under  the  control  of  Congress,  and 
it  belongs  to  the  legislative  department  of  the  government  to  prescribe 


1104      ADDITIONAL    CASES   RELATING   TO   REGULATION    OF    COMMERCE. 

rules  for  the  conduct  of  that  commerce.  If  it  were  otherwise,  the 
declaration  in  the  Constitution  of  its  supremacy,  and  of  the  suprem- 
acy as  well  of  the  laws  made  in  pursuance  of  its  provisions,  was  a 
waste  of  words.  Whilst  every  instrumentality  of  domestic  commerce 
is  subject  to  State  control,  every  instrumentality  of  interstate  com- 
merce may  be  reached  and  controlled  by  national  authority,  so  far  as 
to  compel  it  to  respect  the  rules  for  such  commerce  laiifully  established 
by  Congress.  No  corporate  person  can  excuse  a  departure  from  or 
violation  of  that  rule  under  the  plea  that  that  which  it  has  done  or 
omitted  to  do  is  permitted,  or  not  forbidden,  by  the  State  under 
whose  authority  it  came  into  existence.  We  repeat  that  no  State 
can  endow  any  of  its  corporations,  or  any  combination  of  its  citizens, 
with  authority  to  restrain  interstate  or  international  commerce,  or  to 
disobey  the  national  will  as  manifested  in  legal  enactments  of  Con- 
gress. So  long  as  Congress  keeps  within  the  limits  of  its  authority 
as  defined  by  the  Constitution,  infringing  no  rights  recognized  or 
secured  by  that  instrument,  its  regulations  of  interstate  and  inter- 
national commerce,  whether  founded  in  wisdom  or  not,  must  be  sub- 
mitted to  by  all.  Harm,  and  only  harm,  can  come  from  the  failure 
of  the  courts  to  recognize  this  fundamental  principle  of  constitutional 
construction.  To  depart  from  it  because  of  the  circumstances  of 
special  cases,  or  because  the  rule,  in  its  operation,  may  possibly  affect 
the  interests  of  business,  is  to  endanger  the  safety  and  integrity  of 
our  institutions  and  make  the  Constitution  mean  not  what  it  says, 
but  what  interested  parties  wish  it  to  mean  at  a  particular  time  and 
under  particular  circumstances.  The  supremacy  of  the  law  is  the 
foundation  rock  upon  which  our  institutions  rest.  The  law,  this 
court  said  in  United  States  v.  Lee,  106  U.  S.  196,  220  [720],  is  the 
only  supreme  power  in  our  system  of  government.  And  no  higher 
duty  rests  upon  this  court  than  to  enforce,  by  its  decrees,  the  will  of 
the  legislative  department  of  the  government,  as  expressed  in  a  stat- 
ute, unless  such  statute  be  plainly  and  unmistakably  in  violation  of 
the  Constitution.  If  the  statute  is  beyond  the  constitutional  power 
of  Congress,  the  court  would  fail  in  the  performance  of  a  solemn  duty 
if  it  did  not  so  declare.  But  if  nothing  more  can  be  said  than  that 
Congress  has  erred — and  the  court  must  not  be  understood  as  say- 
ing that  it  has  or  has  not  erred  —  the  remedy  for  the  error  and  the 
attendant  mischief  is  the  selection  of  new  senators  and  representa- 
tives, who,  by  legislation,  will  make  such  changes  in  existing  statutes, 
or  adopt  such  new  statutes,  as  may  be  demanded  by  their  constit- 
uents, and  be  consistent  with  law. 

Many  suggestions  were  made  in  argument  based  upon  the  thought 
that  the  Anti-Trust  Act  would,  in  the  end,  prove  to  be  mischievous  in 
its  consequences.  Disaster  to  business  and  widespread  financial  ruin, 
it  has  been  intimated,  will  follow  the  execution  of  its  provisions. 
Such  predictions  were  made  in  all  the  cases  heretofore  arising  under 
that   act.     But  they  have  not  been  verified.     It  is   the  history   of 


i 


NORTHERN   SECURITIES   COMPANY   V.    UNITED   STATES.         1105 

monopolies  in  this  country  and  in  England  that  predictions  of  ruin 
are  habitually  made  by  them  when  it  is  attempted,  by  legislation,  to 
restrain  their  operations  and  to  protect  the  public  against  their  exac- 
tions. In  this,  as  in  former  cases,  they  seek  shelter  behind  the 
reserved  rights  of  the  States  and  even  behind  the  constitutional 
guaranty  of  liberty  of  contract.  But  this  court  has  heretofore 
adjudged  that  the  act  of  Congress  did  not  touch  the  rights  of  the 
States,  and  that  liberty  of  contract  did  not  involve  a  right  to  deprive 
the  public  of  the  advantages  of  free  competition  in  trade  and  com- 
merce. Liberty  of  contract  does  not  imply  liberty  in  a  corporation 
or  individuals  to  defy  the  national  will,  when  legally  expressed.  Kor 
does  the  enforcement  of  a  legal  enactment  of  Congress  infringe,  in  any 
proper  sense,  the  general  inherent  right  of  everyone  to  acquire  and 
hold  property.  That  right,  like  all  other  rights,  must  be  exercised  in 
subordination  to  the  law. 

But  even  if  the  court  shared  the  gloomy  forebodings  in  which 
the  defendants  indulge,  it  could  not  refuse  to  respect  the  action  of  the 
legislative  branch  of  the  government  if  what  it  has  done  is  within  the 
limits  of  its  constitutional  power.  The  suggestions  of  disaster  to 
business  have,  we  apprehend,  their  origin  in  the  zeal  of  parties  who 
are  opposed  to  the  policy  underlying  the  act  of  Congress  or  are 
interested  in  the  result  of  this  particular  case;  at  any  rate,  the  sug- 
gestions imply  that  the  court  may  and  ought  to  refuse  the  enforcement 
of  the  provisions  of  the  act  if,  in  its  judgment,  Congress  was  not  wise 
in  prescribing  as  a  rule  by  which  the  conduct  of  interstate  and  inter- 
national commerce  is  to  be  governed,  that  every  combination,  what- 
ever its  form,  in  restraint  of  such  commerce  and  the  monopolizing  or 
attempting  to  monopolize  such  commerce,  shall  be  illegal.  These, 
plainly,  are  questions  as  to  the  policy  of  legislation  which  belong  to 
another  department,  and  this  court  has  no  function  to  supervise  such 
legislation  from  the  standpoint  of  wisdom  or  policy.  We  need  only 
say  that  Congress  has  authority  to  declare,  and  by  the  language  of  its 
act,  as  interpreted  in  prior  cases,  has,  in  effect,  declared,  that  the 
freedom  of  interstate  and  international  commerce  shall  not  be 
obstructed  or  disturbed  by  any  combination,  conspiracy,  or  monopoly 
that  will  restrain  such  commerce,  by  preventing  the  free  operation  of 
competition  among  interstate  carriers  engaged  in  the  transportation 
of  passengers  and  freight.  This  court  cannot  disregard  that  declara- 
tion unless  Congress,  in  passing  the  statute  in  question,  be  held  to 
have  transgressed  the  limits  prescribed  for  its  action  by  the  Constitu- 
tion. But,  as  already  indicated,  it  cannot  be  so  held  consistently 
with  the  provisions  of  that  instrument. 

The  combination  here  in  question  may  have  been  for  the  pecuniary 
benefit  of  those  who  formed  or  cause  it  to  be  formed.  But  the  inter- 
ests of  private  persons  and  corporations  cannot  be  made  paramount 
to  the  interests  of  the  general  public.  Under  the  Articles  of  Confed- 
eration commerce  among  the  original  States  was  subject  to  vexatious 

70 


1106      ADDITIONAL   CASES   RELATING   TO    REGULATION    OF    COMMERCE. 

and  locul  regulations  that  took  no  account  of  the  general  welfare. 
But  it  was  for  the  protection  of  the  general  interests,  as  involved  in 
interstate  and  international  commerce,  that  Congress,  representing 
the  whole  country,  was  given  by  the  Constitution  full  power  to  regu- 
late commerce  among  the  States  and  with  foreign  nations.  In  Brown 
t'.  Maryland,  12  Wheat.  419,  446  [303],  it  was  said :  "  Those  who 
felt  the  injury  arising  from  this  state  of  things,  and  those  who  were 
capable  of  estimating  the  influence  of  commerce  on  the  prosperity  of 
nations,  perceu^ed  the  necessity  of  giving  the  control  over  this  impor- 
tant subject  to  a  single  government.  It  may  be  doubted  whether  any 
of  the  evils  proceeding  from  the  feebleness  of  the  Federal  government 
contributed  more  to  that  great  revolution  which  introduced  the  pres- 
ent system  than  the  deep  and  general  conviction  that  commerce  ought 
to  be  regulated  by  Congress."  Railroad  companies,  we  said  in  the  Trans- 
Missouri  Freight  Association  case,  "are  Instruments  of  commerce, 
and  their  business  is  commerce  itself."  And  such  companies,  it  must 
be  remembered,  operate  "  public  highways,  established  primarily  for 
the  convenience  of  the  people,  and  therefore  are  subject  to  govern- 
mental control  and  regulation."  Cherokee  Nation  v.  Kansas  Railway 
Co.,  135  U.  S.  641,  657;  Chicago,  Eh.  R.  R.  Co.  v.  Pullman  Southern 
Car  Co.,  139  U.  S.  79,  90;  Interstate  Commerce  Commission  v.  Brim- 
son,  154  U.  S.  447,  475  ;  United  States  v.  Trans-Missouri  Freight 
Association,  166  U.  S.  290,  332;  Smyth  v.  Ames,  169  U.  S.  466,  544 
[954];  Lake  Shore,  etc.,  Ry.  Co.  v.  Ohio,  173  U.  S.  285,  301  [357]. 
When  such  carriers,  in  the  exercise  of  public  franchises,  engage 
in  the  transportation  of  passengers  and  freight  among  the  States, 
they  become  —  even  if  they  be  State  corporations  —  subject  to  such 
rules  as  Congress  may  lawfully  establish  for  the  conduct  of  inter- 
state commerce. 

It  was  said  in  argument  that  the  circumstances  under  which  the 
Northern  Securities  Company  obtained  the  stock  of  the  constituent 
companies  imported  simply  an  investment  in  the  stock  of  other  cor- 
porations, a  purchase  of  that  stock  ;  which  investment  or  purchase, 
it  is  contended,  was  not  forbidden  by  the  charter  of  the  company,  and 
could  not  be  made  illegal  by  any  act  of  Congress.  This  view  is 
wholly  fallacious,  and  does  not  comport  with  the  actual  transaction. 
There  was  no  actual  investment,  in  any  substantial  sense,  by  the 
Northern  Securities  Company  in  the  stock  of  the  two  constituent 
companies.  If  it  was,  in  form,  such  a  transaction,  it  was  not,  in  fact, 
one  of  that  kind.  However  that  company  may  have  acquired  for 
itself  any  stock  in  the  Great  Northern  and  Northern  Pacitic  Railway 
companies,  no  matter  how  it  obtained  the  means  to  do  so,  all  the 
stock  it  held  or  acquired  in  the  constituent  companies  was  acquired 
and  held  to  be  used  in  suppressing  competition  between  those  com- 
panies. It  came  into  existence  only  for  that  purpose.  If  anyone  had 
full  knowledge  of  what  was  designed  to  be  accomplished,  and  as  to  what 
was  actually  accomplished,  by  the  combination  in  question,  it  was  the 


I 


NORTHERN    SECURITIES    COMPANY   V.    UNITED   STATES.        1107 

defendant  Morgan.  In  his  testimony  he  was  asked,  "  Why  put  the 
stocks  of  both  these  [constituent  companies]  into  one  holding  com- 
pany? "  He  frankly  answered  :  "  In  the  first  place,  this  holding 
company  was  simply  a  question  of  custodian,  because  it  had  no  other 
alliances."  That  disclosed  the  actual  nature  of  the  transaction, 
which  was  only  to  organize  the  Northern  Securities  Company  as  a 
holding  company,  in  whose  hands,  not  as  a  real  purchaser  or  absolute 
owner,  but  simply  as  custodian,  were  to  be  placed  the  stocks  of  the 
constituent  companies  —  such  custodian  to  represent  the  combination 
formed  between  the  shareholders  of  the  constituent  companies,  the 
direct  and  necessary  effect  of  such  combination  being,  as  already  indi- 
cated, to  restrain  and  monopolize  interstate  commerce  by  suppressing, 
or  (to  use  the  words  of  this  court  in  United  States  v.  Joint  Traffic 
Association)  "  smothering "  competition  between  the  lines  of  two 
railway  carriers. 

We  will  now  inquire  as  to  the  nature  and  extent  of  the  relief 
granted  to  the  government  by  the  decree  below. 

By  the  decree  in  the  Circuit  Court  it  was  found  and  adjudged  that 
the  defendants  had  entered  into  a  combination  or  conspiracy  in  re- 
straint of  trade  or  commerce  among  the  several  States,  such  as  the 
act  of  Congress  denounced  as  illegal ;  and  that  all  of  the  stocks  of 
the  Northern  Pacific  Railway  Company  and  all  the  stock  of  the  Great 
Northern  Railway  Company,  claimed  to  be  owned  and  held  by  the 
Northern  Securities  Company,  was  acquired,  and  is  by  it  held,  in 
virtue  of  such  combination  or  conspiracy,  in  restraint  of  trade  and 
commerce  among  the  several  States.  It  was  therefore  decreed  as 
follows  :  "That  the  Northern  Securities  Company,  its  officers,  agents, 
servants,  and  employees,  be  and  they  are  hereby  enjoined  from  ac- 
quiring, or  attempting  to  acquire,  further  stock  of  either  of  the  afore- 
said railway  companies ;  that  the  Northern  Securities  Company  be 
enjoined  from  voting  the  aforesaid  stock  which  it  now  holds  or  may 
acquire,  and  from  attempting  to  vote  it,  at  any  meeting  of  the  stock- 
holders of  either  of  the  aforesaid  railway  companies,  and  from  exer- 
cising or  attempting  to  exercise  any  control,  direction,  supervision, 
or  influence  whatsoever  over  the  acts  and  doings  of  said  railway  com- 
panies, or  either  of  them,  by  virtue  of  its  holding  such  stock  therein  ; 
that  the  Northern  Pacific  Railway  Company  and  the  Great  Northern 
Railway  Company,  their  officers,  directors,  servants,  and  agents,  be 
and  they  are  hereby  respectively  and  collectively  enjoined  from  per- 
mitting the  stock  aforesaid  to  be  voted  by  the  Northern  Securities 
Company,  or  in  its  behalf,  by  its  attorneys  or  agents,  at  any  corporate 
election  for  directors  or  officers  of  either  of  the  aforesaid  railway 
companies  ;  that  they,  together  with  their  officers,  directors,  servants, 
and  agents,  be  likewise  enjoined  and  respectively  restrained  from 
paying  any  dividends  to  the  Northern  Securities  Company  on  account 
of  stock  in  either  of  the  aforesaid  railway  companies,  which  it  now 
claims  to  own  and  hold ;  and  that  the  aforesaid  railway  companies, 


1108      ADDITIONAL    CASES   RELATING    TO    REGULATION    OF   COMMERCE. 

tlieir  officers,  directors,  servants,  and  agents,  be  enjoined  from  per- 
mitting or  suffering  the  Northern  Securities  Company  or  any  of  its 
officers  or  agents,  as  such  officers  or  agents,  to  exercise  any  control 
whatsoever  over  the  corporate  acts  of  either  of  the  aforesaid  railway 
companies.  But  nothing  herein  contained  shall  be  construed  as  pro- 
hibiting the  ISToi'thern  Securities  Company  from  returning  and  trans- 
ferring to  the  Northern  Pacitic  Kaihvay  Company  and  the  Great 
Northern  Railway  Company,  respectively,  any  and  all  shares  of  stock 
in  either  of  said  railway  companies  which  said  The  Northern  Securi- 
ties Company  may  have  heretofore  received  from  such  stockholders 
in  exchange  for  its  own  stock;  and  nothing  herein  contained  shall  be 
construed  as  prohibiting  the  Northern  Securities  Company  from 
making  such  transfer  and  assignments  of  the  stock  aforesaid  to  such 
person  or  persons  as  may  now  be  the  holders  and  owners  of  its  own 
stock  originally  issued  in  exchange  or  in  payment  for  the  stock 
claimed  to  have  been  acquired  by  it  in  the  aforesaid  railway 
companies.'' 

Subsequently,  and  before  the  appeal  to  this  court  was  perfected, 
an  order  was  made  in  the  Circuit  Court  to  this  effect :  "  That  upon  the 
giving  of  an  approved  bond  to  the  United  States  by  or  on  behalf  of 
the  defendants  in  the  sum  of  ^50,000,  conditioned  to  prosecute  their 
appeal  with  effect  and  to  pay  all  damages  which  may  result  to  the 
United  States  from  this  order,  that  portion  of  the  injunction  con- 
tained in  the  final  decree  herein  which  forbids  the  Northern  Pacific 
Railway  Company  and  the  Great  Northern  Railway  Company,  their 
officers,  directors,  servants,  and  agents,  from  paying  dividends  to  the 
Northern  Securities  Company  on  account  of  stock  in  either  of  the 
railway  companies  which  the  Securities  Company  claims  to  own  and 
hold,  is  suspended  during  the  pendency  of  the  appeal  allowed  herein 
this  day.  All  other  portions  of  the  decree  and  of  the  injunction  it 
contains  remain  in  force  and  are  unaffected  by  this  order." 

No  valid  objection  can  be  made  to  the  decree  below,  in  form  or  in 
substance.  If  there  was  a  combination  or  conspiracy  in  violation  of 
the  act  of  Congress,  between  the  stockholders  of  the  Great  Northern 
and  the  Northern  Pacific  Railway  companies,  whereby  the  Northern 
Securities  Company  was  formed  as  a  holding  corporation,  and 
■whereby  interstate  commerce  over  the  lines  of  the  constituent  com- 
panies was  restrained,  it  must  follow  that  the  court,  in  execution  of 
that  act,  and  to  defeat  the  efforts  to  evade  it,  could  prohibit  the  par- 
ties to  the  combination  from  doing  the  specific  things  which,  being 
done,  would  affect  the  result  denounced  by  the  act.  To  say  that  the 
court  could  not  go  so  far  is  to  say  that  it  is  powerless  to  enforce  the 
act  or  to  suppress  the  illegal  combination,  and  powerless  to  protect 
the  rights  of  the  public  as  against  that  combination. 

It  is  here  suggested  that  the  alleged  combination  had  accomplished 
its  object  before  the  commencement  of  this  suit,  in  that  the  Securities 
Company  had  then  organized,  and  had  actually  received  a  majority 


NORTHERN   SECURITIES   COMPANY   V.    UNITED    STATES.         1109 

of  the  stock  of  the  two  constituent  companies  ;  therefore,  it  is  argued, 
no  effective  relief  can  now  be  granted  by  the  government.  This  same 
view  was  pressed  upon  the  Circuit  Court  and  was  rejected.  It  was 
completely  answered  by  that  court  when  it  said  :  "  Concerning  the 
second  contention,  we  observe  that  it  would  be  a  novel,  not  to  say 
absurd,  interpretation  of  the  anti-trust  act  to  hold  that  after  an  un- 
lawful combination  is  formed  and  has  acquired  the  power  which  it 
had  no  right  to  acquire,  —  namely,  to  restrain  commerce  by  suppress- 
ing competition,  —  and  is  proceeding  to  use  it  and  execute  the  pur- 
pose for  which  the  combination  was  formed,  it  must  be  left  in 
possession  of  the  power  that  it  has  acquired,  with  full  freedom  to 
exercise  it.  Obviously,  the  act,  when  fairly  interpreted,  will  bear 
no  such  construction.  Congress  aimed  to  destroy  the  power  to  place 
any  direct  restraint  on  interstate  trade  or  commerce,  when,  by  any 
combination  or  conspiracy,  formed  by  either  natural  or  artificial  per- 
sons, such  a  power  had  been  acquired;  and  the  government  may 
intervene  and  demand  relief  as  well  after  the  combination  is  fully 
organized  as  while  it  is  in  process  of  formation.  lu  this  instance,  as 
we  have  already  said,  the  Securities  Company  made  itself  a  party  to 
a  combifiation  in  restraint  of  interstate  commerce  that  antedated  its 
organization,  as  soon  as  it  came  into  existence,  doing  so,  of  course, 
under  the  direction  of  the  very  individuals  who  promoted  it."  The 
Circuit  Court  has  done  only  what  the  actual  situation  demanded.  Its 
decree  has  done  nothing  more  than  to  meet  the  requirements  of  the 
statute.  It  could  not  have  done  less  without  declaring  its  impotency 
in  dealing  with  those  who  have  violated  the  law.  The  decree,  if  exe- 
cuted, will  destroy  not  the  property  interests  of  the  original  stock- 
holders of  the  constituent  companies,  but  the  power  of  the  holding 
corporation  as  the  instrument  of  an  illegal  combination  of  which  it 
was  the  master  spirit,  to  do  that  which,  if  done,  would  restrain  inter- 
state and  international  commerce.  The  exercise  of  that  power  being  re- 
strained, the  object  of  Congress  will  be  accomplished ;  left  undisturbed, 
the  act  in  question  will  be  valueless  for  any  practical  purpose. 

It  is  said  that  this  statute  contains  criminal  provisions  and  must 
therefore  be  strictly  construed.  The  rule  upon  that  subject  is  a  very 
ancient  and  salutary  one.  It  means  only  that  we  must  not  bring 
cases  within  the  provisions  of  such  a  statute  that  are  not  clearly  em- 
braced by  it,  nor  by  narrow,  technical,  or  forced  construction  of 
words,  exclude  cases  from  it  that  are  obviously  within  its  provisions. 
What  must  be  sought  for  always  i.s  the  intention  of  the  legislature, 
and  the  duty  of  the  court  is  to  give  effect  to  that  intention  as  dis- 
closed by  the  words  used. 

As  early  as  the  case  of  King  v.  Hodnett,  1  T.  R.  96,  101,  Mr.  Jus- 
tice Buller  said:  "It  is  not  true  that  the  courts,  in  the  exposition  of 
penal  statutes,  are  to  narrow  the  construction."  In  United  States  v. 
Wiltberger,  5  Wheat.  76,  95,  Chief  Justice  :Marshall,  delivering  the 
judgment  of  this  court  and  referring  to  the  rule  that  penal  statutes 


1110      ADDITIONAL   CASES   RELATING   TO   REGULATION    OF   COMMERCE. 

are  to  be  construed  strictly,  said :  "  It  is  a  modification  of  the  ancient 
maxim,  and  amounts  to  this;  that  though  penal  laws  are  to  be  con- 
strued strictly,  they  are  not  to  be  construed  so  strictly  as  to  defeat 
the  obvious  intention  of  the  legislature.  The  maxim  is  not  to  be  so 
applied  as  to  narrow  the  words  of  the  statute  to  the  exclusion  of 
cases  which  those  words,  in  their  ordinary  acceptation,  or  in  that 
sense  in  which  the  legislature  has  obviously  used  them,  would  com- 
prehend. The  intention  of  the  legislature  is  to  be  collected  from  the 
words  they  employ.  Where  there  is  no  ambiguity  in  the  words, 
there  is  no  room  for  construction."  In  United  States  v.  Morris,  14 
Pet.  464,  475,  this  court,  speaking  by  Chief  Justice  Taney,  said:  "In 
expounding  a  penal  statute  tlie  court  certainly  will  not  extend  it 
beyond  the  plain  meaning  of  its  words  ;  for  it  has  been  long  and  well 
settled  that  such  statutes  must  be  construed  strictly.  Yet  the  evi- 
dent intention  of  the  legislature  ought  not  to  be  defeated  by  a  forced 
and  overstrict  construction.  5  Wheat.  95."  So,  in  The  Schooner  In- 
dustry, 1  Gall.  114, 117,  Mr.  Justice  Story  said  :  "  We  are  undoubtedly 
bound  to  construe  penal  statutes  strictly,  and  not  to  extend  them 
beyond  their  obvious  meaning  by  strained  inferences.  On  the  other 
hand,  we  are  bound  to  interpret  them  according  to  the  manifest  im- 
port of  the  words,  and  to  hold  all  cases  which  are  within  the  words 
and  the  mischiefs  to  be  within  the  remedial  influence  of  the  statute." 
In  another  case  the  same  eminent  jurist  said:  "I  agree  to  that  rule 
in  its  true  and  sober  sense;  and  that  is,  that  penal  statutes  are  not  to 
be  enlarged  by  implication  or  extended  to  cases  not  obviously  within 
their  words  and  purport.  ...  In  short,  it  appears  to  me  that  the 
proper  course  in  all  these  cases  is  to  search  out  and  follow  the  true 
intent  of  the  legislature,  and  to  adopt  that  sense  of  the  words  which 
harmonizes  best  with  the  context,  and  promotes  in  the  fullest  manner 
the  apparent  policy  and  objects  of  the  legislature."  United  States 
V.  Winn  3,  Sumn.  209,  211,  212.  In  People  v.  Bartow,  6  Cowen,  290, 
the  highest  court  of  New  York  said  :  "  Although  a  penal  statute  is  to 
be  construed  strictly,  the  court  are  not  to  disregard  the  plain  intent 
of  the  legislature.  It  is  well  settled  that  a  statute  which  is  made  for 
the  good  of  the  public  ought,  although  it  be  penal,  to  receive  an  equit- 
able construction."  So,  in  Commonwealth  v.  Martin,  17  Mass.  359, 
362,  the  highest  court  of  Massachusetts  said :  "  If  a  statute  creating 
or  increasing  a  penalty  be  capable  of  two  constructions,  undoubtedly 
that  construction  which  operates  in  favor  of  life  or  liberty  is  to  be 
adopted;  but  it  is  not  justifiable  in  this  any  more  than  in  any  other 
case,  to  imagine  ambiguities  merely  that  a  lenient  construction  may 
be  adopted.  If  such  were  the  privilege  of  a  court,  it  would  be  easy 
to  obstruct  the  public  will  in  almost  every  statute  enacted ;  for  it 
rarely  happens  that  one  is  so  precise  and  exact  in  its  terms  as  to  pre- 
clude the  exercise  of  ingenuity  in  raising  doubts  about  its  construc- 
tion." There  are  cases  almost  without  number  in  this  country  and 
in  England  to  the  same  effect. 


NORTHERN   SECURITIES    COMPANY    V.    UNITED    STATES.         1111 

Guided  by  these  long-established  rules  of  construction,  it  is  mani- 
fest that  if  the  Anti-Trust  Act  is  held  not  to  embrace  a  case  such  as  is 
now  before  us,  the  plain  intention  of  the  legislative  branch  of  the 
government  will  be  defeated.  If  Congress  has  not,  by  the  words 
used  in  the  act,  described  this  and  like  cases,  it  would,  we  apprehend, 
be  impossible  to  find  words  that  would  describe  them.  This,  it  must 
be  remembered,  is  a  suit  in  equity,  instituted  by  authority  of  Con- 
gress, "  to  prevent  and  restrain  violations  of  the  act,"  section  4 ;  and 
the  court,  in  virtue  of  a  well-settled  rule  governing  proceedings  in 
equity,  may  mould  its  decree  so  as  to  accomplish  practical  results  — 
such  results  as  law  and  justice  demand.  The  defendants  have  no  just 
cause  to  complain  of  the  decree,  in  matter  of  law,  and  it  should  be 
affirmed. 

The  judgment  of  the  court  is  that  the  decree  below  be  and  hereby 
is  affirmed,  with  liberty  to  the  Circuit  Court  to  proceed  in  the  execu- 
tion of  its  decree  as  the  circumstances  may  require. 

Affirmed. 

Mr.  Justice  Brewer,  concurring. 

I  carinot  assent  to  all  that  is  said  in  the  opinion  just  announced, 
and  believe  that  the  importance  of  the  case  and  the  questions  involved 
justify  a  brief  statement  of  my  views. 

First,  let  me  say  that  while  I  was  with  the  majority  of  the  court  in 
the  decision  in  United  States  v.  Freight  Association,  166  U.  S.  290, 
followed  by  the  cases  of  United  States  v.  Joint  Traffic  Associa- 
tion, 171  U.  S.  505 ;  Addyston  Pipe  &  Steel  Co.  v.  United  States, 
175  U.  S.  211 ;  and  Montague  &  Co.  v.  Lowry,  193  U.  S.  38,  decided 
at  the  present  terra,  and  while  a  further  examination  (which  had  been 
induced  by  the  able  and  exhaustive  arguments  of  counsel  in  the  present 
case)  has  not  disturbed  the  conviction  that  those  cases  were  rightly 
decided,  I  think  that  in  some  respects  the  reasons  given  for  the  judg- 
ments cannot  be  sustained.  Instead  of  holding  that  the  Anti-Trust  act 
included  all  contracts,  reasonable  or  unreasonable,  in  restraint  of 
interstate  trade,  the  ruling  should  have  been  that  the  contracts  there 
presented  were  unreasonable  restraints  of  interstate  trade,  and  as 
such  within  the  scope  of  the  act.  That  act,  as  appears  from  its  title, 
was  leveled  at  only  "  unlawful  restraints  and  monopolies.''  Con- 
gress did  not  intend  to  reach  and  destroy  those  minor  contracts  in 
partial  restraint  of  trade  which  the  long  course  of  decisions  at  com- 
mon law  had  affirmed  were  reasonable  and  ought  to  be  upheld.  The 
purpose  rather  was  to  place  a  statutory  prohibition,  with  prescribed 
penalties  and  remedies,  upon  those  contracts  which  were  in  direct 
restraint  of  trade,  unreasonable,  and  against  public  policy,  "Whenever 
a  departure  from  common-law  rules  and  definitions  is  claimed,  the 
purpose  to  make  the  departure  should  be  clearly  shown.  Such  a  pur- 
pose does  not  appear,  and  such  a  departure  was  not  intended. 

Further,  the  general  language  of  the  act  is  also  limited  by  the 


1112       ADDITIONAL   CASES   RELATING   TO   REGULATION   OF   COMMERCE. 

power  which  each  individual  has  to  manage  his  own  property  and 
determine  the  place  and  manner  of  its  investment,  Freedom  of  action 
in  these  respects  is  among  the  inalienable  rights  of  every  citizen.  If, 
applying  this  thought  to  the  present  case,  it  appeared  that  Mr.  Hill 
was  the  owner  of  a  majority  of  the  stock  in  the  Great  Northern  Rail- 
way Company,  he  could  not,  by  any  act  of  Congress,  be  deprived  of 
the  right  of  investing  his  surplus  means  in  the  purchase  of  stock  of 
the  Northern  Pacific  Railway  Company,  although  such  purchase  might 
tend  to  vest  in  him  through  that  ownership  a  control  over  both  com- 
panies. In  other  words,  the  right  which  all  other  citizens  had  of 
purchasing  Northern  Pacific  stock  could  not  be  denied  to  him  by 
Congress  because  of  his  ownership  of  stock  in  the  Great  Northern 
Company.  Such  was  the  ruling  in  Pearsall  v.  Great  Northern  Railway, 
161  U.  S.  646,  in  which  this  court  said,  in  reference  to  the  right  of 
the  stockholders  of  the  Great  Northern  Company  to  purchase  the 
stock  of  the  Northern  Pacific  Railway  Company :  "  Doubtless  these 
stockholders  could  lawfully  acquire,  by  individual  purchases,  a 
majority  or  even  the  whole  of  the  stock  of  the  reorganized  company, 
and  thus  possibly  obtain  its  ultimate  control ;  but  the  companies 
would  still  remain  separate  corporations,  with  no  interests,  as  such, 
in  common." 

But  no  such  investment  by  a  single  individual  of  his  means  is  here 
presented.  There  was  a  combination  by  several  individuals,  sepa- 
rately owning  stock  in  two  competing  railroad  companies,  to  place 
the  control  of  both  in  a  single  corporation.  The  purpose  to  combine, 
and  by  combination  destroy  competition,  existed  before  the  organi- 
zation of  the  corporation,  the  Securities  Company,  That  corporation, 
though  nominally  having  a  capital  stock  of  ^400,000,000,  had  no 
means  of  its  own  ;  $i30,000  in  cash  was  put  into  its  treasury,  but 
simply  for  the  expenses  of  organization.  The  organizers  might  just 
as  well  have  made  the  nominal  stock  a  thousand  millions  as  four  hun- 
dred, and  the  corporation  would  have  been  no  richer  or  poorer.  A 
corporation,  while  by  fiction  of  law  recognized  for  some  purposes  as  a 
person,  and,  for  purposes  of  jurisdiction,  as  a  citizen,  is  not  endowed 
with  the  inalienable  rights  of  a  natural  person.  It  is  an  artificial 
person,  created  and  existing  only  for  the  convenient  transaction  of 
business.  In  this  case  it  was  a  mere  instrumentality  by  which  sepa- 
rate railroad  properties  were  combined  under  one  control.  That  com- 
bination is  as  direct  a  restraint  of  trade  by  destroying  competition  as 
the  appointment  of  a  committee  to  regulate  rates.  The  prohibition 
of  such  a  combination  is  not  at  all  inconsistent  with  the  right  of  an 
individual  to  purchase  stock.  The  transfer  of  stock  to  the  Securities 
Company  was  a  mere  incident,  the  manner  in  which  the  combination 
to  destroy  competition,  and  thus  unlawfully  restrain  trade,  was 
carried  out. 

If  the  parties  interested  in  these  two  railroad  companies  can, 
through  the  instrumentality   of  a  holding  corporation,   place   both 


I 


NORTHERN   SECURITIES    COMPANY   V.    UNITED   STATES.         1113 

under  one  control,  then  iu  like  manner,  as  was  conceded  on  the 
argument  by  one  of  the  counsel  for  the  appellants,  could  the  control 
of  all  the  railroad  companies  in  the  country  be  placed  in  a  single  cor- 
poration. Nor  need  this  arrangement  for  control  stop  with  what  has 
already  been  done.  The  holders  of  $201,000,000  of  stock  in  the 
Northern  Securities  Company  might  organize  another  corporation  to 
hold  their  stock  in  that  company,  and  the  new  corporation,  holding 
the  majority  of  the  stock  in  the  Northern  Securities  Company,  and 
acting  in  obedience  to  the  wishes  of  a  majority  of  its  stockholders, 
would  control  the  action  of  the  Securities  Company  and  through  it 
the  action  of  the  two  railroad  companies ;  and  this  process  might  be 
extended  until  a  single  corporation  whose  stock  was  owned  by  three 
or  four  parties  would  be  in  practical  control  of  both  roads  ;  or,  hav- 
ing before  us  the  possibilities  of  combination,  the  control  of  the 
•whole  transportation  system  of  the  country.  I  cannot  believe  that  to 
be  a  reasonable  or  lawful  restraint  of  trade. 

Again,  there  is  by  this  suit  no  interference  with  State  control.  It 
is  a  recognition  rather  than  a  disregard  of  its  action.  This  merging 
of  control  and  destruction  of  competition  was  not  authorized,  but 
specifically  prohibited  by  the  State  which  created  one  of  the  railroad 
companies,  and  within  whose  boundaries  tha  lines  of  both  were  largely 
located  and  much  of  their  business  transacted.  The  purpose  and 
policy  of  the  State  are  therefore  enforced  by  the  decree.  So  far  as 
the  work  of  the  two  railroad  companies  was  interstate  commerce,  it 
was  subject  to  the  control  of  Congress,  and  its  purpose  and  policy 
were  expressed  in  the  act  under  which  this  suit  was  brought. 

It  must  also  be  remembered  that  under  present  conditions  a  single 
railroad  is,  if  not  a  legal,  largely  a  practical  monopoly;  and  the 
arrangement  by  which  the  control  of  these  two  competing  roads  was 
merged  in  a  single  corporation  broadens  and  extends  such  monopoly. 
I  cannot  look  upon  it  as  other  than  an  unreasonable  combination  in 
restraint  of  interstate  commerce — one  in  conflict  with  State  law, 
and  within  the  letter  and  spirit  of  the  statute  and  the  power  of  Con- 
gress.    Therefore  I  concur  in  the  judgment  of  aflfirraance. 

I  have  felt  constrained  to  make  these  observations  for  fear  that  the 
broad  and  sweeping  language  of  the  opinion  of  the  court  might  tend 
to  unsettle  legitimate  business  enterprises,  stifle  or  retard  wholesome 
business  activities,  encourage  improper  disregard  of  reasonable  con- 
tracts, and  invite  unnecessary  litigation.' 

1  Mr.  Justice  White,  with  whom  concurred  Mr.  Chief  Jdstice  Fuller,  Mr. 
JcsTiCE  Peckham,  and  Mr.  Justice  Holmes,  dissented.  There  was  also  a  dissent- 
ing opinion  by  Mb.  Justice  iloLMES,  iu  which  the  other  dissenting  justices  concurred. 


1114      ADDITIONAL   CASES   RELATING   TO    REGULATION    OF   COMMERCE. 


2.   State  Taxation. 


ALLEN  V.   PULLMAN   PALACE   CAR   COMPANY. 

191  U.  S.  171 ;  24  Sup.  Ct.  Rep.  39.    1903. 

[The  Palace  Car  Company  brought  suit  in  the  Circuit  Court  of  the 
United  States  for  the  middle  district  of  Tennessee  to  recover  from 
the  State  moneys  paid  under  protest  for  taxes  levied  and  collected. 
There  was  a  judgment  for  the  company,  and  the  officer  of  the  State 
against  whom  the  action  was  brought  appeals.] 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

The  taxes  in  controversy  were  levied  under  certain  revenue  laws  of 
the  State  of  Tennessee.  Those  for  the  years  1887  and  1888  provided  : 
"  That  the  rate  of  taxation  on  the  following  privileges  shall  be  as 
follows  :  Sleeping  cars :  Each  company  doing  business  in  the  State, 
on  each  car,  per  annum,  $500."  Section  eight  of  the  act  provided  : 
"  That  any  and  all  parties,  firms,  or  corporations  exercising  any  of 
the  foregoing  privileges  must  pay  this  tax,  as  set  forth  in  this  act,  for 
the  exercise  of  such  privilege,  whether  they  make  a  business  of  it  or 
not." 

The  Tennessee  act  of  1877,  imposing  a  tax  upon  the  running  of 
sleeping  cars,  was  before  this  court  for  consideration  in  the  case  of 
Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34.  That  act  pro- 
vided :  "  That  the  running  or  using  of  sleeping  cars  or  coaches  on 
railroads  in  Tennessee,  not  owned  by  the  railroads  upon  which  they 
are  run  or  used,  is  declared  to  be  a  privilege,  and  the  companies  shall 
be  required  to  pay  to  the  comptroller  by  the  first  day  of  July  follow- 
ing fifty  dollars  for  each  and  every  said  cars  or  coaches  used  or  run 
over  said  roads;  and  if  the  said  privilege  tax  herein  assessed  be  not 
paid  as  aforesaid,  the  comptroller  shall  enforce  the  payment  of  the 
same  by  distress  warrant." 

It  was  held  that  the  tax  was  a  burden  upon  interstate  commerce, 
and  void  because  of  the  exclusive  power  of  Congress  to  regulate  com- 
merce between  the  States.  Unless  the  statute  now  under  considera- 
tion can  be  distinguished  from  the  one  then  construed,  the  Pickard 
case  is  decisive  of  the  present  case.  Botli  taxes  were  imposed  under 
the  power  granted  by  the  Constitution  of  Tennessee  to  lay  a  privilege 
tax.  This  power  is  held  by  the  Supreme  Court  of  the  State  to  give 
a  wide  range  of  legislative  discretion.  Any  occupation,  business, 
employment,  or  the  like,  affecting  the  public,  may  be  classed  and 
taxed  as  a  privilege.  Knoxville  &  0.  R.  Co.  v.  Harris,  99  Tenn.  684. 
In  the  act  of  1877  the  running  and  using  of  sleeping  cars  on  railroads 


ALLEN    V.    PULLMAN    PALACE   CAR   COMPANY.  1115 

in  the  State,  when  the  cars  are  not  owned  by  the  railroads  upon  which 
they  are  run,  is  declared  to  be  a  privilege.  Under  the  act  of  1887, 
the  tax  is  specifically  imposed  upon  a  privilege.  Under  the  act  of 
1877,  the  tax  imposed  was  $50  for  each  car  or  coach  used  or  run  over 
the  road.  Under  the  act  of  1887,  each  company  doing  business  in 
the  State  is  required  to  pay  $500  per  annum  for  the  same  privilege. 
The  distinction,  except  in  the  amount  of  annual  tax  exacted,  is  with- 
out substantial  difference.  Under  the  earlier  act  the  tax  is  required 
for  the  privilege  of  running  and  using  sleeping  cars  on  railroads  not 
owning  the  cars.  In  the  later  act  it  is  exacted  for  the  privilege  of 
doing  business  in  the  State.  This  business  consists  of  running  sleep- 
ing cars  upon  railroads  not  owning  the  cars,  and  is  precisely  the 
privilege  to  be  paid  for  under  the  first  act,  neither  more  nor  less.  In 
neither  act  is  any  distinction  attempted  between  local  or  through  cars 
or  carriers  of  passengers.  The  railroads  upon  which  the  cars  are  run 
are  lines  traversing  the  State,  but  not  confined  to  its  limits.  The 
cars  of  the  Pullman  Company  run  into  and  beyond  the  State  as  well 
as  between  points  within  the  State.  The  act  in  its  terms  applies  to 
cars  running  through  the  State  as  well  as  those  whose  operation  is 
wholly  intrastate.  It  applies  to  all  alike,  and  requires  payment  for 
the  privilege  of  running  the  cars  of  the  company,  regardless  of  the 
fact  whether  used  in  interstate  traffic  or  in  that  which  is  wholly 
within  the  borders  of  the  State.  There  is  no  decision  of  the  Supreme 
Court  of  Tennessee  limiting  the  act  in  its  operation  to  mti'a-state 
traffic.  It  is  true  that  the  comptroller  has  sought  to  restrain  the 
operation  of  the  law  by  imposing  the  tax  for  two  years  upon  cars 
running  between  Nashville  and  Memphis  and  between  Nashville 
and  Chattanooga  for  two  years,  and  fixing  one  car  in  each  year  as 
the  proportion  of  local  business  done  on  interstate  cars  for  two  years. 
But  this  action  does  not  conclude  the  State  in  taxing  for  other  years, 
and  the  action  taken  by  the  comptroller  does  not  limit  the  terras  of 
the  law  affecting  interstate  commerce. 

In  Leloup  v.  Mobile,  127  U.  S.  640,  647  [341  n],  it  was  sought 
to  recover  a  penalty  imposed  upon  an  agent  of  the  Western  Union 
Telegraph  Company  for  failure  to  pay  an  annual  license  tax  as  re- 
quired by  an  ordinance  of  IMobile.  In  the  course  of  the  opinion 
denying  the  right  to  exact  the  license  fee,  Mr.  Justice  Bradley 
said  :  "  But  it  is  urged  that  a  portion  of  the  telegraph  company's 
business  is  internal  to  the  State  of  Alabama,  and  therefore  taxable 
by  the  State.  But  that  fact  does  not  remove  the  difficulty.  The 
tax  affects  the  whole  business  witliout  discrimination.  There  are 
sufficient  modes  in  which  the  internal  business,  if  not  already  taxed 
in  some  other  way,  may  be  subject  to  taxation,  without  the  impo- 
sition of  a  tax  which  covers  the  entire  operations  of  the  company." 

In  Osborne  v.  Florida,  164  U.  S.  650,  a  license  tax  upon  express 
companies  was  sustained,  in  view  of  the  decision  of  the  Supreme 
Court  of  that  State  that  it  affected  only  business  of   the  company 


1116      ADDITIONAL  CASES  RELATING   TO   REGULATION   OF   COMMERCE, 

within  the  State.  The  statute  now  under  consideration  requires 
payment  of  the  sum  exacted  for  the  privilege  of  doing  any  busi- 
ness, when  the  principal  thing  to  be  done  is  interstate  traffic.  We 
are  not  at  liberty  to  read  into  the  statute  terras  not  found  therein  or 
necessarily  implied,  with  a  view  to  limiting  the  tax  to  local  busi- 
ness, which  the  legislature,  in  the  terms  of  the  act,  impose  upon 
the  entire  business  of  the  company.  We  are  of  opinion  that  taxes 
exacted  under  the  act  of  1887  are  void  as  an  attempt  by  the  State  to 
impose  a  burden  upon  interstate  commerce. 

Other  considerations  apply  in  the  construction  of  the  act  of  1889, 
under  which,  or  acts  identical  in  terms,  taxes  were  collected  from 
1889  to  1893,  inclusive.  It  provides,  p.  247,  266,  c.  130,  April  8, 1889: 
"  Sec.  4.  The  rate  of  taxation  on  the  following  privileges  shall  be 
as  follows,  per  annum  :  .  .  .  Sleeping  car  companies  (in  lieu  of  all 
other  taxes  except  ad  valorem  tax).  Each  company  doing  business 
in  this  State,  for  one  or  more  passengers  taken  up  at  one  point  in 
this  State  and  delivered  at  another  point  in  this  State,  and  transported 
wholly  within  the  State,  per  annum,  $53, 000."  Its  terms  apply  strictly 
to  business  done  in  the  transportation  of  passengers  taken  up  at  one 
point  in  the  State  and  transported  wholly  within  the  State  to  another 
point  therein.  It  is  not  necessary  to  review  the  numerous  cases  in  this 
court  in  which  attempts  by  the  States  to  control  or  regulate  interstate 
commerce  have  been  the  subject  of  consideration.  While  they  show 
a  zealous  care  to  preserve  the  exclusive  right  of  Congress  to  regulate 
interstate  traffic,  the  corresponding  right  of  the  State  to  tax  and  con- 
trol the  internal  business  of  the  State,  although  thereby  foreign  or 
interstate  commerce  may  be  indirectly  affected,  has  been  recognized 
with  equal  clearness.  In  the  late  case  of  Osborne  v.  Florida,  supra, 
Mr.  Justice  Peckham,  speaking  for  the  court,  said :  "  It  has  never 
been  held,  however,  that  when  the  business  of  the  company,  which 
is  wholly  within  the  State,  is  but  a  mere  incident  to  its  interstate 
business,  such  fact  would  furnish  any  obstacle  to  the  valid  taxa- 
tion by  the  State  of  the  business  of  the  company  which  is  entirely 
local.  So  long  as  the  regulation  as  to  the  license  or  taxation  does 
not  refer  to,  and  is  not  imposed  upon,  the  business  of  the  company 
which  is  interstate,  there  is  no  interference  with  that  commerce  by 
the  State  statute." 

Granting  that  the  right  exists  whereby  a  State  may  impose  privi- 
lege or  license  fees  upon  business  carried  on  wholly  within  the  State, 
it  is  argued  that  the  tax  of  $3,000  per  annum,  collected  for  carrying 
one  or  more  local  passengers  on  cars  operating  within  the  State,  is 
assessed  upon  traffic  which  bears  such  small  proportion  to  the  entire 
business  of  the  company  within  the  State  that  it  could  not  have  been 
levied  in  good  faith  upon  purely  local  business,  and  is  but  a  thinly 
disguised  attempt  to  tax  the  privilege  of  interstate  traffic.  If  the 
payment  of  this  tax  was  compulsory  upon  the  company  before  it 
could  do  a  carrying  business  within  the   State,  and   the  burden  of 


ALLEN  V,    PULLMAN  PALACE  CAR  COMPANY.       1117 

its  payment,  because  of  the  minor  character  of  the  domestic  traffic, 
rested  mainly  upon  the  receipts  from  interstate  traffic,  there  would 
be  much  force  in  this  objection.  Upon  this  proposition  we  are  un- 
able to  distinguish  this  case  from  Pullman  Co.  v.  Adams,  189  U.  S. 
420,  decided  at  the  last  term,  wherein  it  was  held  that  the  privilege 
tax  imposed  by  the  State  of  Mississippi  upon  each  car  carrying  pas- 
sengers from  one  point  in  the  State  to  another  therein  was  a  valid 
tax,  notwithstanding  the  fact  that  the  company  otfered  to  show  that 
its  receipts  from  the  carrying  of  the  passengers  named  did  not  equal 
the  expenses  chargeable  against  such  receipts.  This  conclusion  was 
based  upon  the  right  ot  the  company  to  abandon  the  business  if  it  saw 
fit.  It  was  urged  that  under  the  Constitution  of  jMississippi  the  Pull- 
man Company  was  a  common  carrier,  required  to  carry  passengers, 
and  therefore  could  not  be  taxed  for  the  privilege  of  doing  that  which 
it  was  compelled  to  do;  but  in  view  of  a  decision  of  the  Supreme 
Court  of  Mississippi,  sustaining  the  tax,  it  was  assumed  that  no  such 
objection  existed  under  the  State  Constitution.  Speaking  upon  this 
subject,  Mr.  Justice  Holmes,  delivering  the  opinion  of  the  court,  said: 
"  If  the  clause  of  the  State  Constitution  referred  to  were  held  to  im- 
pose the  obligation  supposed,  and  to  be  valid,  we  assume,  without 
discussion,  that  the  tax  would  be  invalid.  For  then  it  would  seem  to 
be  true  that  the  State  Constitution  and  the  statute  combined  would 
impose  a  burden  on  commerce  between  the  States  analogous  to  that 
which  was  held  bad  in  Crutcher  v.  Kentucky,  141  U.  S.  47  [328]. 
On  the  other  hand,  if  the  Pullman  Company,  whether  called  a  com- 
mon carrier  or  not,  had  the  right  to  choose  between  what  points  it 
would  carry,  and  therefore  to  give  up  the  carriage  of  passengers 
from  one  point  to  another  in  the  State,  the  case  is  governed  by  Os- 
borne V.  Florida,  164  U.  S.  650.  The  company  cannot  complain  of 
being  taxed  for  the  privilege  of  doing  a  local  business  which  it  is  free 
to  renounce.     Both  i)arties  agree  that  the  tax  is  a  privilege  tax." 

There  is  additional  reason  for  holding  that  the  Pullman  Company 
may  transact  its  business  in  Tennessee  without  paying  this  privilege 
tax,  and  continue  its  interstate  business,  declining  local  business, 
thereby  escaping  the  attempt  to  tax  it  upon  business  wholly  within 
the  State.  The  statute  of  Tennessee,  enacted  in  1875,  provides: 
"  The  rule  of  the  common  law  giving  a  right  of  action  to  any  per- 
son excluded  from  any  hotel  or  public  means  of  transportation  or 
place  of  amusement  is  hereby  abrogated  ;  and  hereafter  no  keeper 
of  any  hotel  or  public  house,  or  carrier  of  passengers  for  hire,  or 
conductors,  drivers,  or  employees  of  such  carrier  or  keeper,  shall  be 
bound  or  under  any  obligation  to  entertain,  carry,  or  admit  any  per- 
son whom  he  shall,  for  any  reason  whatever,  choose  not  to  entertain, 
carry,  or  admit  to  his  house,  hotel,  carriage,  or  means  of  transporta- 
tion, or  place  of  amusement,  nor  shall  any  right  exist  in  favor  of  any 
such  person  so  refused  admission,  but  the  right  of  such  keepers  of 
hotels   and  public  houses,  carriers  of   passengers,   and   keepers   of 


1118      ADDITIONAL   CASES   RELATING   TO    REGULATION   OF   COMMERCE. 


places  of  amusement,  and  their  employees,  to  control  the  access 
and  admission  or  exclusion  of  persons  to  or.  from  their  public  houses, 
means  of  transportation,  and  places  of  amusement,  shall  be  as  per- 
fect and  complete  as  that  of  any  private  person  over  his  private  house, 
carriage,  or  private  theatre  or  place  of  amusement  for  his  family." 
(Shannon's  Code,  §  3046.) 

Under  this  act,  no  carrier  is  required  to  admit  any  passenger  to  his 
car  or  means  of  transportation.  While  the  Pullman  Company  may 
not  be  technically  a  common  carrier,  still  we  think  it  comes  within 
the  scope  and  meaning  of  this  act.  A  sleeping  car  is  obviously  a 
public  means  of  transportation.  .  Under  this  act,  the  carrier  is  not 
obliged  to  afford  its  privileges  to  those  making  application  therefor. 
Mr.  Justice  Blatchford,  speaking  of  the  character  of  the  service 
afforded  by  sleeping  cars,  in  Pickard  v.  Pullman  Southern  Car  Co., 
117  U.  S.  34,  said  :  "  The  car  was  equally  a  vehicle  of  transit  as  if  it 
had  been  a  car  owned  by  the  railroad  company,  and  the  special  con- 
veniences or  comforts  furnished  to  the  passenger  had  been  furnished 
by  the  railroad  company  itself." 

It  follows  that  a  tax  imposed  upon  domestic  business,  under  the 
circumstances  shown,  cannot  be  a  burden  upon  interstate  commerce 
in  such  sense  as  will  invalidate  it. 

Under  the  judgment  of  the  court  below,  the  Pullman  Company  was 
permitted  to  recover  for  license  taxes  levied  under  both  acts.  In  so 
far  as  it  permitted  a  recovery  for  taxes  under  the  act  of  1889  and 
identical  laws  of  other  years,  the  judgment  should  he  modified.  For 
that  purpose,  and  for  further  proceedings  in  accordance  with  this 
opinion,  the  case  is  remanded  to  the  Circuit  Court. 


\ 


APPENDIX  B. 

ADDITIONAL   CASES  RELATING   TO  ANNEXATION   OF 
TERRITORY. 


DOWNES  V.  BIDWELL. 
182  U.  S.  244 ;  21  Sup.  Ct.  Rep.  770.     1901. 

This  was  an  action  begun  in  the  Circuit  Court  by  Downes,  doing 
business  under  the  first  name  of  S.  B.  Downes  «&  Co.,  against  the 
collector  of  the  port  of  New  York,  to  recover  back  duties  to  the 
amouut  of  $659.35  exacted  and  paid  under  protest  upon  certain 
oranges  consigned  to  the  plaintiff  at  New  York,  and  brought  thither 
from  the  port  of  San  Juan  in  the  island  of  Porto  Rico  during  the 
month  of  November,  1900,  after  the  passage  of  the  act  temporarily 
providing  a  civil  government  and  revenues  for  the  island  of  Porto 
Rico,  known  as  the  Foraker  act. 

The  district  attorney  demurred  to  the  complaint  for  the  want  of 
jurisdiction  in  the  court,  and  for  insulhciency  in  its  averments.  The 
demurrer  was  sustained,  and  the  complaint  dismissed.  Whereupon 
plaintiff  sued  out  this  writ  of  error. 

Mr.  Justice  Brown  announced  the  conclusion  and  judgment  of  the 
court. 

This  case  involves  the  question  whether  merchandise  brought  iuto 
the  port  of  New  York  from  Porto  Rico  since  the  passage  of  the 
Foraker  act  is  exempt  from  duty,  notwithstanding  the  third  section 
of  that  act,  which  requires  the  payment  of  "  fifteen  per  centum  of 
the  duties  which  are  required  to  be  levied,  collected,  and  paid  upon 
like  articles  of  merchandise  imported  from  foreign  countries." 

1.  The  exception  to  the  jurisdiction  of  the  court  is  not  well  taken. 
By  Rev.  Stat.,  Sec.  629,  subd.  4,  the  Circuit  Courts  are  vested  with 
jurisdiction  *'of  all  suits  at  law  or  in  equity  arising  under  any  act 
providing  for  revenue  from  imports  or  tonnage,"  irrespective  of  tlie 
amount  involved.  This  section  should  be  construed  in  connection 
with  sec.  643,  which  provides  for  the  removal  from  state  courts  to 
Circuit  Courts  of  the  United  States  of  suits  against  revenue  officers 
*'on  account  of  any  act  done  under  color  of  his  office,  or  of  any  such 
[revenue]  law,  or  on  account  of  any  right,  title,  or  authority  claimed 
by  such  officer  or  other  person  under  any  such  law."  Both  these 
sections  are  taken  from  the  act  of  March  2,  1833,  c.  57,  4  Stat.  632, 
commonly  known  as  the  Force  Bill,  and  are  evidently  intended  to 


1120      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 


include  all  actions  against  customs  officers  acting  under  color  of 
their  office.  While,  as  we  have  held  in  De  Lima  v.  Bidwell,  [  181 
U.  S.  1],  actions  against  the  collector  to  recover  back  duties 
assessed  upon  non-importable  property  are  not  "customs  cases"  in 
the  sense  of  the  Administrative  Act,  they  are,  nevertheless,  actions 
arising  under  an  act  to  provide  for  a  revenue  from  imports,  in  the 
sense  of  section  629,  since  they  are  for  acts  done  by  a  collector  under 
color  of  his  office.  This  subdivision  of  sec.  629  was  not  repealed  by  the 
jurisdictional  act  of  1875,  or  the  subsequent  act  of  August  13,  1888, 
since  these  acts  were  "  not  intended  to  interfere  with  the  prior  stat- 
utes conferring  jurisdiction  upon  the  Circuit  or  District  Courts  in 
special  cases  and  over  particular  subjects.  United  States  v.  Mooney, 
116  U.  S.  104,  107.  See  also  Insurance  Co.  v.  Eitchie,  5  Wall. 
641 ;  Philadelphia  v.  The  Collector,  5  Wall.  720 ;  Hornthall  v.  The 
Collector,  9  Wall.  560.  As  the  case  *'  involves  the  construction  or 
application  of  the  Constitution,"  as  well  as  the  constitutionality  of  a 
law  of  the  United  States,  the  writ  of  error  was  properly  sued  out 
from  this  court. 

2.  In  the  case  of  De  Lima  v.  Bidwell  just  decided,  we  held  that, 
upon  the  ratification  of  the  treaty  of  peace  with  Spain,  Porto 
Rico  ceased  to  be  a  foreign  country,  and  became  a  territory  of 
the  United  States,  and  that  duties  were  no  longer  collectible  upon 
merchandise  brought  from  that  island.  We  are  now  asked  to  hold 
that  it  became  a  part  of  the  United  States  within  that  provision  of 
the  Constitution  which  declares  that  "all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States."  Art.  i,  Sec.  8. 
If  Porto  Rico  be  a  part  of  the  United  States,  the  Foraker  act  impos- 
ing duties  upon  its  products  is  unconstitutional,  not  only  by  reason  of 
a  violation  of  the  uniformity  clause,  but  because  by  section  9  "  vessels 
bound  to  or  from  one  State  "  cannot  "  be  obliged  to  enter,  clear,  or 
pay  duties  in  another." 

The  case  also  involves  the  broader  question  whether  the  revenue 
clauses  of  the  Constitution  extend  of  their  own  force  to  our  newly 
acquired  territories.  The  Constitution  itself  does  not  answer  the 
question.  Its  solution  must  be  found  in  the  nature  of  the  government 
created  by  that  instrument,  in  the  opinion  of  its  contemporaries,  in  the 
practical  construction  put  upon  it  by  Congress,  and  in  the  decisions 
of  this  court. 

The  Federal  government  was  created  in  1777  by  the  union  of 
thirteen  colonies  of  Great  Britain  in  "certain  articles  of  confederation 
and  perpetual  union,"  the  first  one  of  which  declared  that  "  the  stile 
of  this  confederacy  shall  be  the  United  States  of  America."  Each 
member  of  the  confederacy  was  denominated  a  State.  Provision  was 
made  for  the  representation  of  each  State  by  not  less  than  two  or 
more  than  seven  delegates ;  but  no  mention  was  made  of  territories  ■ 
or  other  lands,  except  in  art.  xi,  which  authorized  the  admis- 
sion   of   Canada,    upon    its    "  acceding   to  this    confederation,"    and 


DOWNES  V.    BIDWELL.  1121 

of  other  colonies ,  if  such  admission  were  agreed  to  by  nine 
States.  At  this  time  several  States  made  claims  to  large  tracts 
of  land  in  the  unsettled  west,  which  they  were  at  first  indisposed 
to  relinquish.  Disputes  over  these  lands  became  so  acrid  as 
nearly  to  defeat  the  confederacy  before  it  was  fairly  put  m  operation. 
Several  of  the  States  refused  to  ratify  the  articles,  because  the  con- 
vention had  taken  no  steps  to  settle  the  titles  to  these  lands  upon 
principles  of  equity  and  sound  policy  ;  but  all  of  them,  through  fear  of 
being  accused  of  disloyalty,  finally  yielded  their  claims,  though  Mary- 
land held  out  until  1781.  Most  of  these  States  in  the  meantime  hav- 
ing ceded  their  interests  in  these  lands,  the  confederate  Congress,  in 
1787,  created  the  first  territorial  government  northwest  of  the  Ohio 
River,  provided  for  local  self-government,  a  bill  of  rights,  a  representa- 
tion in  Congress  by  a  delegate,  who  should  have  a  seat  "  with  a  right 
of  debating,  but  not  of  voting,"  and  for  the  ultimate  formation  of 
States  therefrom,  and  their  admission  into  the  Union  on  an  equal 
footing  with  the  original  States. 

The  confederacy,  owing  to  well-known  historical  reasons,  having 
proven  a  failure,  a  new  Constitution  was  formed  in  1787  by  "  the 
people  of  the  United  States  "  "  for  the  United  States  of  America,"  as 
its  preamble  declares.  All  legislative  powers  were  vested  in  a  Con- 
gress consisting  of  representatives  from  the  several  States,  but  no 
provision  was  made  for  the  admission  of  delegates  from  the  territories, 
and  no  mention  was  made  of  territories  as  separate  portions  of  the 
Union,  except  that  Congress  was  empowered  "  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States."  At  this  time  all  of  the 
States  had  ceded  their  unappropriated  lands  except  Xortli  Carolina 
and  Georgia.  It  was  thought  by  Chief  Justice  Taney  in  the  Dred 
Scott  case,  19  How.  393,  436,  that  the  sole  object  of  the  terri- 
torial clause  was  "  to  transfer  to  the  new  government  the  property 
then  held  in  common  by  the  States,  and  to  give  to  that  government 
power  to  apply  it  to  the  objects  for  which  it  had  been  destined  by 
mutual  agreement  among  the  States  before  their  league  was  dis- 
solved;  "  that  the  power  "to  make  needful  rules  and  regulations" 
was  not  intended  to  give  the  powers  of  sovereignty,  or  to  authorize 
the  establishment  of  territorial  governments,  —  in  short,  that  these 
words  were  used  in  a  proprietary,  and  not  in  a  political  sense.  But, 
as  we  observed  in  De  Lima  v.  Bidwell,  the  power  to  establish  terri- 
torial governments  has  been  too  long  exercised  by  Congress  and  acqui- 
esced in  by  this  court  to  be  deemed  an  unsettled  question.  Indeed, 
in  the  Dred  Scott  case  it  was  admitted  to  be  the  inevitable  conse- 
quence of  the  right  to  acquire  territory. 

It  is  sufficient  to  observe  in  relation  to  these  three  fundamental 
instruments,  that  it  can  nowhere  be  inferred  that  the  territories  were 
considered  a  part  of  the  United  States.  The  Constitution  was  cre- 
ated by  the  people  of  the    United  States,  as  a  union  of  States,  to  be 

71 


1122      ADDITIONAL   CASES   RELATING   TO  ANNEXATION    OF   TERRITORY. 

governed  solely  by  representatives  of  the  States ;  and  even  the  pro- 
vision relied  upon  here,  that  all  duties,  imposts,  and  excises  shall  be 
uniform  "  throughout  the  United  States,"  is  explained  by  subsequent 
provisions  of  the  Constitution,  that  "  no  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State,"  and  "  no  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports  of  one  State 
over  those  of  another  ;  nor  shall  vessels  bound  to  or  from  one  State 
be  obliged  to  enter,  clear,  or  pay  duties  in  another."  In  short,  the 
Constitution  deals  with  States,  their  people,  and  their  representatives. 

The  Thirteenth  Amendment  to  the  Constitution,  prohibiting  slavery 
and  involuntary  servitude  "  within  the  United  States,  or  in  any  place 
subject  to  their  jurisdiction,"  is  also  significant  as  showing  that  there 
may  be  places  within  the  jurisdiction  of  the  United  States  that  are 
no  part  of  the  Union.  To  say  that  the  phraseology  of  this  amend- 
ment was  due  to  the  fact  that  it  was  intended  to  prohibit  slavery  in 
the  seceded  States,  under  a  possible  interpretation  that  those  States 
were  no  longer  a  part  of  the  Union,  is  to  confess  the  very  point  in 
issue,  since  it  involves  an  admission  that,  if  these  States  were  not  a 
part  of  the  Union,  they  were  still  subject  to  the  jurisdiction  of  the 
United  States. 

Upon  the  other  hand,  the  Fourteenth  Amendment,  upon  the  subject 
of  citizenship,  declares  only  that  "  all  persons  born  or  naturalized  m 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States,  and  of  the  State  wherein  they  reside."  Here 
there  is  a  limitation  to  persons  born  or  naturalized  in  the  United 
States,  which  is  not  extended  to  persons  born  in  any  place  "  subject 
to  their  jurisdiction." 

The  question  of  the  legal  relations  between  the  States  and  the  newly 
acquired  territories  iirst  became  the  subject  of  public  discussion  in  con- 
nection with  the  purchase  of  Louisiana  in  1803.  This  purchase  arose 
primarily  from  the  fixed  policy  of  Spain  to  exclude  all  foreign  com- 
merce from  the  Mississippi.  This  restriction  became  intolerable  to 
the  large  number  of  immigrants  who  were  leaving  the  eastern  States 
to  settle  in  the  fertile  valley  of  that  river  and  its  tributaries.  After 
several  futile  attempts  to  secure  the  free  navigation  of  that  river  by 
treaty,  advantage  was  taken  of  the  exhaustion  of  Spain  in  her  war 
with  France,  and  a  provision  inserted  in  the  treaty  of  October  27, 
1795,  by  which  the  Mississippi  river  was  opened  to  the  commerce  of 
the  United  States.  8  Stat.  138,  140,  art.  IV.  In  October,  1800, 
by  the  secret  treaty  of  San  Udefonso,  Spain  retroceded  to  France  the 
territory  of  Louisiana.  This  treaty  created  such  a  ferment  in  this 
country  that  James  Monroe  was  sent  as  minister  extraordinary  with 
discretionary  powers  to  cooperate  with  Livingston,  then  minister  to 
France,  in  the  purchase  of  New  Orleans,  for  which  Congress  appro- 
priated $2,000,000.  To  the  surprise  of  the  negotiators,  Bonaparte 
invited  them  to  make  an  offer  for  the  whole  of  Louisiana  at  a  price 
finally  fixed  at  $15,000,000.     It  is  well  known  that  Mr.  Jefferson 


DOWNES    V.    BIDWELL.  1123 

entertained  grave  doubts  as  to  his  power  to  make  the  purchase,  or, 
rather,  as  to  his  right  to  annex  the  territory  and  make  it  part  of  the 
United  States,  and  had  instructed  ]\Ir.  Livingston  to  make  no  agree- 
ment to  that  effect  in  the  treaty,  as  he  believed  it  could  not  be  legally 
done.  Owing  to  a  new  war  between  England  and  France  being  upon 
the  point  of  breaking  out,  there  was  need  for  haste  in  the  negotiations, 
and  Mr.  Livingston  took  the  responsibility  of  disobeying  his  instruc- 
tions, and,  probably  owing  to  the  insistence  of  Bonaparte,  consented 
to  the  third  article  of  the  treaty,  which  provided  that  "  the  inhabi- 
tants of  the  ceded  territory  shall  be  incorporated  in  the  Union  of 
the  United  States,  and  admitted  as  soon  as  possible,  according  to  the 
principles  of  the  Federal  Constitution,  to  the  enjoyment  of  all  the 
rights,  advantages,  and  immunities  of  citizens  of  the  United  States  ; 
and  in  the  meantime  they  shall  be  maintained  and  protected  in  the 
free  enjoyment  of  their  liberty,  property,  and  the  religion  which  they 
profess."  This  evidently  committed  the  government  to  the  ulti- 
mate, but  not  to  the  immediate  admission  of  Louisiana  as  a  State, 
and  postponed  its  incorporation  into  the  Union  to  the  pleasure 
of  Congress.  In  regard  to  this,  Mr.  Jefferson,  in  a  letter  to  Sen- 
ator Breckinridge  of  Kentucky,  of  August  12,  1803,  used  the  fol- 
lowing language  :  "  This  treaty  must,  of  course,  be  laid  before  both 
Houses,  because  both  have  important  functions  to  exercise  respecting 
it.  They,  I  presume,  will  see  their  duty  to  their  country  in  ratifying 
and  paying  for  it,  so  as  to  secure  a  good  which  would  otherwise  prob- 
ably be  never  again  in  their  power.  But  I  suppose  they  must  theu 
appeal  to  the  nation  for  an  additional  article  to  the  Constitution 
approving  and  confirming  an  act  which  the  nation  had  not  previously 
authorized.  The  Constitution  has  made  no  provision  for  holding 
foreign  territor}',  still  less  for  incorporating  foreign  nations  into  our 
Union.  The  Executive,  in  seizing  the  fugitive  occurrence  which  so 
much  advances  the  good  of  their  country,  has  done  an  act  beyond  the 
Constitution." 

To  cover  the  questions  raised  by  this  purchase  'Mv.  Jefferson  pre- 
pared two  amendments  to  the  Constitution,  the  first  of  which  declared 
that  "the  province  of  Louisiana  is  incorporated  with  the  United 
States  and  made  part  thereof  ;"  and  the  second  of  which  was  couched 
in  a  little  different  language,  viz.  :  "  Louisiana,  as  ceded  by  France 
to  the  United  States,  is  made  a  part  of  the  United  States.  Its  white 
inhabitants  shall  be  citizens,  and  stand,  as  to  their  rights  and  obliga- 
tions, on  the  same  footing  as  other  citizens  in  analogous  situations." 
But  by  the  time  Congress  assembled,  October  17,  1803,  either  the  ar- 
gument of  his  friends  or  the  pressing  necessity  of  the  situation  seems 
to  have  dispelled  his  doubts  regarding  his  power  under  the  Constitu- 
tion, since  in  his  message  to  Congress  he  referred  the  whole  matter 
to  that  body,  saying  that  "  with  the  wisdom  of  Congress  it  will  rest 
to  take  those  ulterior  measures  which  may  be  necessary  for  the  im- 
mediate occupation  and  temporary  government  of  the  country  ;  for 


1124       ADDITIONAL    CASES    RELATING    TO    ANNEXATION    OP    TERRITORY. 

its  incorporation  into  the  Union."     Jefferson's  Writings,  vol.  8,  p. 
2G9. 

Tlie  raising  of  money  to  provide  for  the  purchase  of  this  territory, 
and  the  act  providing  a  civil  government,  gave  rise  to  an  animated 
debate  in  Congress  in  which  two  questions  were  prominently  pre- 
sented :  First,  whether  the  provision  for  the  ultimate  incorporation 
of  Louisiana  into  the  Union  was  constitutional ;  and,  second,  whether 
the  seventh  article  of  the  treaty  admitting  the  ships  of  Spain  and  France 
for  the  next  twelve  years  "  into  the  ports  of  New  Orleans,  and  in  all 
other  legal  ports  of  entry  within  the  ceded  territory,  in  the  same 
manner  as  the  ships  of  the  United  States  coming  directly  from 
France  or  Spain,  or  any  of  their  colonies,  without  being  subject  to 
any  other  or  greater  duty  on  merchandise  or  other  or  greater  tonnage 
than  that  paid  by  the  citizens  of  the  United  States"  [8  Stat. 
204],  was  an  unlawful  discrimination  in  favor  of  those  ports  and  an 
infringement  upon  Art.  I,  sec.  9,  of  the  Constitution,  that  no  prefer- 
ence shall  be  given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another."  This  article  of  the  treaty 
contained  the  further  stipulation  that  ''  during  the  space  of  time 
above  mentioned  no  other  nation  shall  have  a  right  to  the  same  privi- 
leges in  the  ports  of  the  ceded  territory  ;  .  .  .  and  it  is  well  under- 
stood that  the  object  of  the  above  article  is  to  favor  the  manufactures, 
commerce,  freight,  and  navigation  of  France  and  Spain." 

It  is  unnecessary  to  enter  into  the  details  of  this  debate.  The  ar- 
guments of  individual  legislators  are  no  proper  subject  for  judicial 
comment.  They  are  so  often  influenced  by  personal  or  political  con- 
siderations, or  by  the  assumed  necessities  of  the  situation,  that  they 
can  hardly  be  considered  even  as  the  deliberate  views  of  the  persons 
who  make  them,  much  less  as  dictating  the  construction  to  be  put 
upon  the  Constitution  by  the  courts.  United  States  v.  Union  P.  R. 
Co.,  91  U.  S.  72,  79.  Suffice  it  to  say  that  the  administration  partly 
took  the  ground  that,  under  the  constitutional  power  to  make  treaties, 
there  was  ample  power  to  acquire  territor}^,  and  to  hold  and  govern 
it  under  laws  to  be  passed  by  Congress ;  and  that  as  Louisiana  was 
incorporated  into  the  Union  as  a  territory,  and  not  as  a  State,  a  stip- 
ulation for  citizenship  became  necessary;  that  as  a  State  they  would 
not  have  needed  a  stipulation  for  the  safety  of  their  liberty,  property, 
and  religion,  but  as  territory  this  stipulation  would  govern  and  re- 
strain the  undefined  powers  of  Congress  to  "  make  rules  and  regula- 
tions" for  territories.  The  Federalists  admitted  the  power  of 
Congress  to  acquire  and  hold  territory,  but  denied  its  power  to  in- 
corporate it  into  the  Union  under  the  Constitution  as  it  then  stood. 

They  also  attacked  the  seventh  article  of  the  treaty,  discriminating 
in  favor  of  French  and  Spanish  ships,  as  a  distinct  violation  of  the 
Constitution  against  preference  being  given  to  the  ports  of  one  State 
over  those  of  another.  The  administration  party,  through  Mr.  Elliott 
of  Vermont,  replied  to  this  that  "the  States,  as  such,  were  equal  and 


DOWNES   V.    BIDWELL.  1125 

intended  to  preserve  that  equality ;  and  the  provision  of  the  Constitu- 
tion alluded  to  was  calculated  to  prevent  Congress  from  making  any 
odious  discrimination  or  distinctions  between  particular  States.  It 
was  not  contemplated  that  this  provision  would  have  application  to 
colonial  or  territorial  acquisitions."  Said  Mr.  Nicholson  of  Maryland, 
speaking  for  the  administration  :  "  It  [Louisiana]  is  in  the  nature  of 
a  colony  whose  commerce  may  be  regulated  without  any  reference  to 
the  Constitution.  Had  it  been  the  island  of  Cuba  which  was  ceded 
to  us,  under  a  similar  condition  of  admitting  French  and  Spanish 
vessels  for  a  limited  time  into  Havana,  could  it  possibly  have  been 
contended  that  this  would  be  giving  a  preference  to  the  ports  of  one 
State  over  those  of  another,  or  that  the  uniformity  of  duties,  imposts, 
and  excises  throughout  the  United  States  would  have  been  destroyed  ? 
And  because  Louisiana  lies  adjacent  to  our  own  territory  is  it  to  be 
viewed  in  a  different  light  ?  " 

As  a  sequence  to  this  debate  two  bills  were  passed,  one  October  31, 
1803  (2  Stat.  245,  chap.  1),  authorizing  the  President  to  take  pos- 
session of  the  territory  and  to  continue  the  existing  government; 
and  the  other  November  10,  1803  (2  Stat.  245,  chap.  2),  making 
provision  for  the  payment  of  the  purchase  price.  These  acts  con- 
tinued in  force  until  March  26,  1804,  when  a  new  act  was  passed 
providing  for  a  temporary  government  (2  Stat.  283,  chap.  38),  and 
vesting  all  legislative  powers  in  a  governor  and  legislative  council, 
to  be  appointed  by  the  President.  These  statutes  may  be  taken  as 
expressing  the  views  of  Congress,  first,  that  territory  may  be  law- 
fully acquired  by  treaty,  with  a  provision  for  its  ultimate  incorpora- 
tion into  the  Union  ;  and,  second,  that  a  discrimination  in  favor  of 
certain  foreign  vessels  trading  with  the  ports  of  a  newly  acquired 
territory  is  no  violation  of  that  clause  of  the  Constitution  (Art.  I,  sec. 
9)  that  declares  that  no  preference  shall  be  given  to  the  ports  of  one 
State  over  those  of  another.  It  is  evident  that  the  constitutionality 
of  this  discrimination  can  only  be  supported  upon  the  theory  that 
ports  of  territories  are  not  ports  of  States  within  the  meaning  of  the 
Constitution. 

The  same  construction  was  adhered  to  in  the  treaty  with  Spain  for 
the  purchase  of  Florida  (8  Stat.  252)  the  sixth  article  of  which  pro- 
vided that  the  inhabitants  should  "  be  incorporated  into  the  Union 
of  the  United  States,  as  soon  as  may  be  consistent  with  the  princi- 
ples of  the  Federal  Constitution  ;  "  and  the  fifteenth  article  of  which 
agreed  that  Spanish  vessels  coming  directly  from  Spanish  ports  and 
laden  with  productions  of  Spanish  growth  or  manufacture  should 
be  admitted,  for  the  term  of  twelve  years,  to  the  ports  of  Pensacola 
and  St.  Augustine  "  without  paying  other  or  higher  duties  on  their 
cargoes,  or  of  tonnage,  than  will  be  paid  by  the  vessels  of  the  United 
States,"  and  that  "  during  the  said  term  no  other  nation  shall  enjoy 
the  same  privileges  within  the  ceded  territories." 

So,  too,  in  the  act  annexing  the  Republic  of  Hawaii,  there  was  a 


1126      ADDITIONAL   CASES   RELATING   TO   ANNEXATION    OF   TERRITORY. 

provision  continuing  in  effect  the  customs  relations  of  the  Hawaiian 
Islands  with  the  United  States  and  other  countries,  the  effect  of 
which  was  to  compel  the  collection  in  those  islands  of  a  duty  upon 
certain  articles,  whether  coming  from  the  United  States  or  other 
countries,  much  greater  than  the  duty  provided  by  the  general  tariff 
law  then  in  force.  This  was  a  discrimination  against  the  Hawaiian 
ports  wholly  inconsistent  with  the  revenue  clauses  of  the  Constitu- 
tion, if  such  clauses  were  there  operative. 

Tlie  very  treaty  with  Spain  under  discussion  in  this  case  contains 
similar  discriminative  provisions,  which  are  apparently  irreconcilable 
with  the  Constitution,  if  that  iiistrument  be  held  to  extend  to  these 
islands  immediately  upon  their  cession  to  the  United  States.  By 
Art.  IV  the  United  States  agree,  "for  the  term  of  ten  years  from  the 
date  of  the  exchange  of  the  ratifications  of  the  present  treaty,  to  ad- 
mit" Spanish  ships  and  merchandise  to  the  ports  of  the  Philippine 
Islands  on  the  same  terms  as  ships  and  merchandise  of  the  United 
States  "  —  a  privilege  not  extending  to  any  other  ports.  It  was  a 
clear  breach  of  the  uniformity  clause  in  question,  and  a  manifest  ex- 
cess of  authority  on  the  part  of  the  commissioners,  if  ports  of  the 
Philippine  Islands  be  ports  of  the  United  States." 

So,  too,  by  Art.  XIII,  "  Spanish  scientific,  literary,  and  artistic 
works  .  .  .  shall  be  continued  to  be  admitted  free  of  duty  in  such 
territories  for  the  period  of  ten  years,  to  be  reckoned  from  the  date 
of  the  exchange  of  the  ratifications  of  this  treaty."  This  is  also  a 
clear  discrimination  in  favor  of  Spanish  literary  productions  into  par- 
ticular ports. 

Notwithstanding  these  provisions  for  the  incorporation  of  terri- 
tories into  the  Union,  Congress,  not  only  in  organizing  the  territory 
of  Louisiana  by  act  of  March  26, 1804,  but  all  other  territories  carved 
out  of  this  vast  inheritance,  has  assumed  that  the  Constitution  did 
not  extend  to  them  of  its  own  force,  and  has  in  each  case  made 
special  provision,  either  that  their  legislatures  shall  pass  no  law  in- 
consistent with  the  Constitution  of  the  United  States,  or  that  the 
Constitution  or  laws  of  the  United  States  shall  be  the  supreme  law 
of  such  territories.  Finally,  in  Eev.  Stat.,  §  1891,  a  general  provision 
was  enacted  tliat  "  the  Constitution  and  all  laws  of  the  United  States 
which  are  not  locally  inapplicable  shall  have  the  same  force  and 
effect  within  all  the  organized  territories,  and  in  every  territory  here- 
after organized,  as  elsewhere  within  the  United  States." 

So,  too,  on  March  6,  1820  (3  Stat.  645,  chap.  22),  in  an  act 
authorizing  the  people  of  Missouri  to  form  a  State  government,  after 
a  heated  debate,  Congress  declared  that  in  the  territory  of  Louisiana 
north  of  36°  30',  slavery  should  be  forever  prohibited.  It  is  true  that, 
for  reasons  which  have  become  historical,  this  act  was  declared  to  be 
unconstitutional  in  Scott  v.  Sandford,  19  How.  393,  but  it  is  none  the 
less  a  distinct  annunciation  by  Congress  of  power  over  property  in  the 
territories,  which  it  obviously  did  not  possess  in  the  several  States. 


DOWNES   V.    BIDWELL.  11.27 

The  researches  of  counsel  have  collated  a  large  number  of  other 
instances  iu  which  Congress  has  in  its  enactments  recognized  the  fact 
that  provisions  intended  for  the  States  did  not  embrace  the  territories, 
unless  specially  mentioned.  These  are  found  iu  the  laws  prohibiting 
the  slave  trade  with  "the  United  States  or  territories  thereof;"  or 
equipping  ships'  "  in  any  port  or  place  within  the  Junsdlcfion  of  the 
United  States  ;  "  in  the  internal  revenue  laws,  in  the  early  ones  of 
which  no  provision  was  made  for  the  collection  of  taxes  in  the  terri- 
tory not  included  within  the  boundaries  of  the  existing  States,  and 
others  of  which  extended  them  expressly  to  the  territories,  or  "■  with- 
in the  exterior  boundaries  of  the  United  States ; "  and  in  the  acts 
extending  the  internal  revenue  laws  to  the  territories  of  Alaska  and 
Oklahoma.  It  would  prolong  this  opinion  unnecessarily  to  set  forth 
the  provisions  of  these  acts  in  detail.  It  is  sufficient  to  say  that 
Congress  has  or  has  not  applied  the  revenue  laws  to  the  territories, 
as  the  circumstances  of  each  case  seemed  to  require,  and  has  specifi- 
cally legislated  for  the  territories  whenever  it  was  its  intention  to 
execute  laws  beyond  the  limits  of  the  states.  Indeed,  whatever  may 
have^  been  the  fluctuations  of  opinion  in  other  bodies  (and  even  this 
court  has  not  been  exempt  from  them).  Congress  has  been  consistent 
in  recognizing  the  difference  between  the  States  and  territories  under 
the  Constitution. 

The  decisions  of  this  court  upon  this  subject  have  not  been  alto- 
gether harmonious.  Some  of  them  are  based  upon  the  theory  that 
the  Constitution  does  not  apply  to  the  territories  without  legislation. 
Other  cases,  arising  from  territories  where  such  legislation  has  been 
had,  contain  language  which  would  justify  the  inference  that  such 
legislation  was  unnecessary,  and  that  the  Constitution  tooic  effect  im- 
mediately upon  the  cession  of  the  territory  to  the  United  States.  It 
may  be  remarked,  upon  the  threshold  of  an  analysis  of  these  eases, 
that  too  much  weight  must  not  be  given  to  general  expressions  found 
in  several  opinions  that  the  power  of  Congress  over  territories  is 
complete  and  supreme,  because  these  words  may  be  interpreted  as 
meaning  only  supreme  under  the  Constitution  ;  nor,  upon  the  other 
hand,  to  general  statements  that  the  Constitution  covers  the  territo- 
ries as  well  as  the  States,  since  in  such  cases  it  will  be  found  that  acts 
of  Congress  had  already  extended  the  Constitution  to  such  territories, 
and  that  thereby  it  subordinated,  not  only  its  own  acts,  but  those  of 
the  territorial  legislatures,  to  what  had  become  the  supreme  law  of 
the  land.  "  It  is  a  maxim  not  to  be  disregarded  that  general  expres- 
sions, in  every  opinion,  are  to  be  taken  in  connection  with  the  case  in 
which  those  expressions  are  used.  If  they  go  beyond  the  case,  they 
may  be  respected,  but  ought  not  to  control  the  judgment  in  a  subse- 
quent suit  when  the  very  point  is  presented  for  decision.  The  rea- 
son of  this  maxim  is  obvious.  The  question  actually  before  the  court 
is  investigated  with  care,  and  considered  in  its  full  extent.  Other 
principles  which  may  serve  to  illustrate  it  are  considered  in  their  re- 


1128      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

lation  to  the  case  decided,  but  their  possible  bearing  on  all  other 
cases  is  seldom  completely  investigated."  Cohens  v.  Virginia,  6 
Wheat.  264,  399. 

The  earliest  case  is  that  of  Hepburn  v.  Ellzey,  2  Cranch,  445,  in 
which  this  court  held  that,  under  that  clause  of  the  Constitution  lim- 
iting the  jurisdiction  of  the  courts  of  the  United  States  to  controver- 
sies between  citizens  of  different  States,  a  citizen  of  the  District  of 
Columbia  could  not  maintain  an  action  in  the  Circuit  Court  of  the 
United  States.  It  was  argued  that  the  word  "  State,"  in  that  connec- 
tion, was  used  simply  to  denote  a  distinct  political  society.  "But," 
said  the  Chief  Justice,  "  as  the  act  of  Congress  obviously  used  the 
word  '  State '  in  reference  to  that  term  as  used  in  the  Constitution,  it 
becomes  necessary  to  inquire  whether  Columbia  is  a  State  in  the  sense 
of  that  instrument.  The  result  of  that  examination  is  a  conviction 
that  the  members  of  the  American  confederacy  only  are  the  States 
contemplated  in  the  Constitution,  .  .  .  and  excludes  from  the  term 
the  signification  attached  to  it  by  writers  on  the  law  of  nations." 
This  case  was  followed  in  Barney  v.  Baltimore,  6  Wall.  280,  and  quite 
recently  in  Hooe  v.  Jaraieson,  166  U.  S.  395  [734].  The  same  rule  was 
applied  to  citizens  of  territories  in  New  Orleans  v.  Winter,  1  Wheat. 
91,  in  which  an  attempt  was  made  to  distinguish  a  territory  from 
the  District  of  Columbia.  But  it  was  said  that  "  neither  of  them  is 
a  State  in  the  sense  in  which  that  term  is  used  in  the  Constitution." 
In  Scott  V.  Jones,  5  How.  343,  and  in  Miners'  Bank  v.  Iowa,  12 
How.  1,  it  was  held  that  under  the  Judiciary  Act,  permitting  writs  of 
error  to  the  Supreme  Court  of  a  State  in  cases  where  the  validity  of  a 
State  statute  is  drawn  in  question,  an  act  of  a  territorial  legislature 
was  not  within  the  contemplation  of  Congress. 

Loughborough  v.  Blake,  5  Wheat.  317,  was  an  action  of  trespass 
(or,  as  appears  by  the  original  record,  repleviti),  brought  in  the  Circuit 
Court  for  the  District  of  Columbia  to  try  the  right  of  Congress  to  im- 
pose a  direct  tax  for  general  purposes  on  that  District.  3  Stat. 
216,  chap.  60.  It  was  insisted  that  Congress  could  act  in  a  double 
capacity  :  in  one  as  legislating  for  the  states ;  in  the  other  as  a  local 
legislature  for  the  District  of  Columbia.  In  the  latter  character,  it 
was  admitted  that  the  power  of  levying  direct  taxes  might  be  exer- 
cised, but  for  District  purposes  only,  as  a  State  legislature  might  tax 
for  State  purposes  ;  but  that  it  could  not  legislate  for  the  District 
under  Ai-t.  I,  sec.  8,  giving  to  Congress  the  power  "  to  lay  and  collect 
taxes,  imposts,  and  excises,"  which  "shall  be  uniform  throughout  the 
United  States,"  inasmuch  as  the  District  was  no  part  of  the  United 
States.  It  was  held  that  the  grant  of  this  power  was  a  general  one 
without  limitation  as  to  place,  and  consequently  extended  to  all  places 
over  which  the  government  extends ;  and  that  it  extended  to  the  Dis- 
trict of  Columbia  as  a  constituent  part  of  the  United  States.  The 
fact  that  Art.  I,  sec.  20,  declares  that  "  representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  States  .  .  .  according  to  their 


DOWNES   V.   BIDWELL.  1129 

respective  numbers  "  furnished  a  standard  by  which  taxes  were  appor- 
tioned, but  not  to  exempt  any  part  of  the  country  from  their  opera- 
tion. "  The  words  used  do  not  mean  that  direct  taxes  shall  be  im- 
posed on  States  only  which  are  represented,  or  shall  be  apportioned 
to  representatives;  but  that  direct  taxation,  in  its  application  to 
States,  shall  be  apportioned  to  numbers."  That  Art.  I,  sec.  9,  ^[  4,  de- 
claring that  direct  taxes  shall  be  laid  in  proportion  to  the  census,  was 
applicable  to  the  District  of  Columbia,  "  and  will  enable  Congress  to 
apportion  on  it  its  just  and  equal  share  of  the  burden,  with  the  same 
accuracy  as  on  the  respective  States.  If  the  tax  be  laid  in  this  pro- 
portion, it  is  within  the  very  words  of  the  restriction.  It  is  a  tax  in 
proportion  to  the  census  or  enumeration  referred  to."  It  was  further 
held  that  the  words  of  the  ninth  section  did  not  "  in  terms  require 
that  the  system  of  direct  taxation,  when  resorted  to,  shall  be  extended 
to  the  territories,  as  the  words  of  the  second  section  require  that  it 
shall  be  extended  to  all  the  States.  They  therefore  may,  without 
violence,  be  understood  to  give  a  rule  when  the  territories  shall  be 
taxed,  without  imposing  the  necessity  of  taxing  them." 

There  could  be  no  doubt  as  to  the  correctness  of  this  conclusion,  so 
far,  at  least,  as  it  applied  to  the  District  of  Columbia.  This  District 
had  been  a  part  of  the  States  of  Maryland  and  Virginia.  It  had  been 
subject  to  the  Constitution,  and  was  a  part  of  the  United  States. 
The  Constitution  had  attached  to  it  irrevocably.  There  are  steps 
which  can  never  be  taken  backward.  The  tie  that  bound  the  States 
of  Maryland  and  Virginia  to  the  Constitution  could  not  be  dissolved, 
without  at  least  the  consent  of  the  Federal  and  state  governments  to 
a  formal  separation.  The  mere  cession  of  the  District  of  Columbia 
to  the  Federal  government  relinquished  the  authority  of  the  States, 
but  it  did  not  take  it  out  of  the  United  States  or  from  under  the  aegis 
of  the  Constitution.  Neither  party  had  ever  consented  to  that  con- 
struction of  the  cession.  If,  before  the  District  was  set  off,  Congress 
had  passed  an  unconstitutional  act  affecting  its  inhabitants,  it  would 
have  been  void.  If  done  after  the  District  was  created,  it  would  have 
been  equally  void;  in  other  words,  Congress  could  not  do  indirectly, 
by  carving  out  the  District,  what  it  could  not  do  directly.  The  Dis- 
trict still  remained  a  part  of  the  United  States,  protected  by  the  Con- 
stitution. Indeed,  it  would  have  been  a  fanciful  construction  to  hold 
that  territory  which  had  once  been  a  part  of  the  United  States  ceased 
to  be  such  by  being  ceded  directly  to  the  Federal  government. 

In  delivering  the  opinion,  however,  the  Chief  Justice  made  certain 
observations  which  have  occasioned  some  embarrassment  in  other 
cases.  "  The  power,"  said  he,  "  to  lay  and  collect  duties,  imposts, 
and  excises  may  be  exercised,  and  must  be  exercised,  throughout  the 
United  States.  Does  this  term  designate  the  whole,  or  any  particular 
portion  of  the  American  empire  ?  Certainly  this  question  can  admit 
but  of  one  answer.  It  is  the  name  given  to  our  great  republic  which 
is  composed  of  States  and  territories.     The  District  of  Columbia,  or 


1130       ADDITIONAL   CASES   KELATIXG   TO    ANNEXATION    OF   TERRITORY. 

the  territory  west  of  the  jMissouri,  is  not  less  within  the  United 
States  than  Maryland  or  Pennsylvania;  and  it  is  not  less  necessary, 
on  the  principles  of  our  Constitution,  that  uniformity  in  the  imposi- 
tion of  imposts,  duties,  and  excises  should  be  observed  in  the  one  than 
in  the  other.  Since,  then,  the  power  to  lay  and  collect  taxes,  which 
includes  direct  taxes,  is  obviously  coextensive  with  the  power  to  lay 
and  collect  duties,  imposts,  and  excises,  and  since  the  latter  extends 
throughout  the  United  States,  it  follows  that  the  power  to  impose 
direct  taxes  also  extends  throughout  the  United  States."  So  far  as 
applicable  to  the  District  of  Columbia,  these  observations  are  entirely 
sound.  So  far  as  they  apply  to  the  territories,  they  were  not  called 
for  by  the  exigencies  of  the  case. 

In  line  with  Loughborough  v.  Blake  is  the  case  of  Callan  v.  Wil- 
son, 127  U.  S.  510  [834],  in  which  the  provisions  of  the  Constitution 
relating  to  trial  by  jury  were  held  to  be  in  force  in  the  District  of 
Columbia.  Upon  the  other  hand,  in  Geofroy  v.  Riggs,  133  U.  S.  258, 
[586  «],  the  District  of  Columbia,  as  a  political  community,  was  held 
to  be  one  of  "the  States  of  the  Union  "  within  the  meaning  of  that 
term  as  used  in  a  consular  convention  of  February  23, 1853,  with  France. 
The  seventh  article  of  that  convention  provided  that  in  all  the  States  of 
the  Union  whose  existing  laws  permitted  it  Frenchmen  should  enjoy 
the  right  of  holding,  disposing  of,  and  inheriting  property  in  the 
same  manner  as  citizens  of  the  United  States ;  and  as  to  the  States 
of  the  Union  by  whose  existing  laws  aliens  were  not  permitted  to 
hold  real  estate  the  President  engaged  to  recommend  to  them  the 
passage  of  such  laws  as  might  be  necessary  for  the  purpose  of  con- 
ferring this  right.  The  court  was  of  opinion  that  if  these  terms, 
"  States  of  the  Union,"  were  held  to  exclude  the  District  of  Colum- 
bia and  the  territories,  our  government  would  be  placed  in  the  incon- 
sistent position  of  stipulating  that  French  citizens  should  enjoy  the 
right  of  holding,  disposing  of,  and  inheriting  property  in  like  manner 
as  citizens  of  the  United  States,  in  States  whose  laws  permitted  it, 
and  engaging  that  the  President  should  recommend  the  passage  of 
laws  conferring  that  right  in  States  whose  laws  did  not  permit  aliens 
to  hold  real  estate,  while  at  the  same  time  refusing  to  citizens  of 
France  holding  property  in  the  District  of  Columbia  and  in  some  of 
the  territories,  where  the  power  of  the  United  States  is  in  that  re- 
spect unlimited,  a  like  release  from  the  disabilities  of  alienage,  "thus 
discriminating  against  them  in  favor  of  citizens  of  France  holding 
property  in  States  having  similar  legislation.  No  plausible  motive 
can  be  assigned  for  such  discrimination.  A  right  which  the  gov- 
ernment of  the  United  States  apparently  desires  that  citizens  of 
France  should  enjoy  in  all  the  States,  it  would  hardly  refuse  to  them 
in  the  district  embracing  its  capital,  or  in  any  of  its  own  territorial 
dependencies." 

This  case  may  be  considered  as  establishing  the  principle  that,  in 
dealing  with  foreign  sovereignties,  the  term  "  United  States  "  has  a 


DOWNES   V.    BIDWELL.  1131 

broader  meaning  than  when  used  in  the  Constitution,  and  includes  all 
territories  subject  to  the  jurisdiction  of  the  Federal  government,  wher- 
ever located.  In  its  treaties  and  conventions  with  foreign  nations  this 
government  is  a  unit.  This  is  so,  not  because  the  territories  comprised 
a  part  of  the  government  established  by  the  people  of  the  States  iu 
their  Constitution,  but  because  the  Federal  government  is  the  only- 
authorized  organ  of  the  territories,  as  well  as  of  the  States,  in  their 
foreign  relations.  By  Art.  I,  sec.  10,  of  the  Constitution,  "  no  State 
shall  enter  into  any  treaty,  alliance,  or  confederation,  ...  or  enter 
into  any  agreement  or  compact  with  another  State,  or  with  a  foreign 
power."  It  would  be  absurd  to  hold  that  the  territories,  which  are 
much  less  independent  than  the  States,  and  are  under  the  direct  con- 
trol and  tutelage  of  the  general  government,  possess  a  power  in  this 
particular  which  is  thus  expressly  forbidden  to  the  States. 

It  may  be  added  in  this  connection,  that  to  put  at  rest  all  doubts 
regarding  the  applicability  of  the  Constitution  to  the  District  of 
Columbia,  Congress  by  the  act  of  February  21,  1871,  c.  62,  16  Stat. 
419,  426,  §  34,  specifically  extended  the  Constitution  and  laws  of  the 
United  States  to  this  District. 

The  case  of  American  Ins.  Co.  v.  Canter,  1  Pet.  511  [827],  origi- 
nated in  a  libel  filed  in  the  district  court  for  South  Carolina,  for  tlie 
possession  of  356  bales  of  cotton  which  had  been  wrecked  on  the 
coast  of  Florida,  abandoned  to  the  insurance  companies,  and  subse- 
quently brought  to  Charleston.  Canter  claimed  the  cotton  as  bona 
fide  purchaser  at  a  marshal's  sale  at  Key  West,  by  virtue  of  a  decree 
of  a  territorial  court  consisting  of  a  notary  and  five  jurors,  proceeding 
under  an  act  of  the  governor  and  legislative  council  of  Florida.  The 
case  turned  upon  the  question  whether  the  sale  by  that  court  was 
effectual  to  devest  the  interest  of  the  underwriters.  The  District 
Judge  pronounced  the  proceedings  a  nullity,  and  rendered  a  decree 
from  which  botli  parties  appealed  to  the  Circuit  Court.  The  Circuit 
Court  reversed  the  decree  of  the  District  Court  upon  the  ground  that 
the  proceedings  of  the  court  at  Key  West  were  legal,  and  transferred 
the  property  to  Canter,  the  alleged  purchaser. 

The  opinion  of  the  Circuit  Court  was  delivered  by  Mr.  Justice 
Johnson,  of  the  Supreme  Court,  and  is  published  in  full  in  a  note  in 
Peters'  Reports.  It  was  argued  that  the  Constitution  vested  the 
admiralty  jurisdiction  exclusively  in  the  general  government;  that 
the  legislature  of  Florida  had  exercised  an  illegal  power  in  organiz- 
ing this  court,  and  that  its  decrees  were  void.  On  the  other  hand,  it 
was  insisted  that  this  was  a  court  of  separate  and  distinct  jurisdiction 
from  the  courts  of  the  United  States,  and  as  such  its  acts  were  not  to 
be  reviewed  in  a  foreign  tribunal,  such  as  was  the  court  of  South 
Carolina ;  "  that  the  District  of  Florida  was  not  part  of  the  United 
States,  but  only  an  acquisition  or  dependency,  and  as  such  the  Con- 
stitution per  se  had  no  binding  effect  in  or  over  it."  "  It  becomes," 
said  the  court,  "  indispensable  to  the  solution  of  these  difficulties  that 


1132       ADDITIONAL    CASES    RELATING    TO   ANNEXATION    OF   TERRITORY. 

we  should  conceive  a  just  idea  of  the  relation  in  which  Florida  stands 
to  the  United  States.  .  .  .  And,  first,  it  is  obvious  that  there  is  a 
material  distinction  between  the  territory  now  under  consideration 
and  that  which  is  acquired  from  the  aborigines  (whether  by  purchase 
or  conquest)  wltli.bi  the  acknowledged  limits  of  the  United  States,  as 
also  that  whicli  is  acquired  by  the  establishment  of  a  disputed  line. 
As  to  both  these  there  can  be  no  question  that  the  sovereignty  of  the 
State  or  territory  within  which  it  lies,  and  of  the  United  States,  im- 
mediately attached,  producing  a  complete  subjection  to  all  the  laws 
and  institutions  of  the  two  governments,  local  and  general,  unless 
modified  by  treaty.  The  question  now  to  be  considered  relates  to 
territories  previously  subject  to  the  acknowledged  jurisdiction  of 
another  sovereign,  such  as  was  Florida  to  the  crown  of  Spain.  And 
on  this  subject  we  have  the  most  exjjlicit  proof  that  the  understand- 
ing of  our  public  functionaries  is  that  the  government  and  laws  of 
the  United  States  do  not  extend  to  such  territory  by  the  mere  act  of 
cession.  For  in  the  act  of  Congress  of  March  30, 1822,  sec.  9,  we  have 
an  enumeration  of  the  acts  of  Congress  which  are  to  be  held  in  force 
in  the  territory  ;  and  in  the  tenth  section  an  enumeration,  in  the  nature 
of  a  bill  of  rights,  of  privileges  and  immunities  which  could  not  be 
denied  to  the  inhabitants  of  the  territory  if  they  came  tender  the 
Constitution  by  the  mere  act  of  cession.  .  .  .  These  States,  this  terri- 
tory, and  future  States  to  be  admitted  into  the  Union  are  the  sole 
objects  of  the  Constitution  ;  there  is  no  express  provision  whatever 
made  in  the  Constitution  for  the  acquisition  or  government  of  terri- 
tories beyond  those  limits."  He  further  held  that  the  right  of 
acquiring  territory  was  altogether  incidental  to  the  treaty-making 
power ;  that  their  government  was  left  to  Congress  ;  that  the  territory 
of  Florida  did  "  not  stand  in  the  relation  of  a  State  to  the  United 
States;"  that  the  acts  establishing  a  territorial  government  were  the 
constitution  of  Florida;  tliat  while,  under  these  acts,  the  territorial 
legislature  could  enact  nothing  inconsistent  with  what  Congress  h.ad 
made  inherent  and  permanent  in  the  territorial  government,  it  had 
not  done  so  in  organizing  the  court  at  Key  West. 

From  the  decree  of  the  Circuit  Court  the  underwriters  appealed  to 
this  court,  and  the  question  was  argued  whether  the  Circuit  Court  was 
correct  in  drawing  a  distinction  between  territories  existing  at  the 
date  of  the  Constitution  and  territories  subsequently  acquired.  The 
main  contention  of  the  appellants  was  that  the  Superior  Courts  of 
Florida  had  been  vested  by  Congress  with  exclusive  jurisdiction  in 
all  admiralty  and  maritime  cases ;  that  salvage  was  such  a  case,  and 
therefore  any  law  of  Florida  giving  jurisdiction  in  salvage  cases  to 
any  other  court  was  unconstitutional.  On  behalf  of  the  purchaser  it 
was  argued  that  the  Constitution  and  laws  of  the  United  States  were 
not  per  se  in  force  in  Florida,  nor  the  inhabitants  citizens  of  the 
United  States;  that  the  Constitution  was  established  by  the  people  of 
the  United  States /or  the  United  States;  that  if  the  Constitution  were 


DOWNES   V.    BIDWELL.  1133 

in  force  in  Florida  it  was  unnecessary  to  pass  an  act  extending  the 
laws  of  the  United  States  to  Florida.  *'  What  is  Florida  ?"  said  Mr. 
Webster.  *'It  is  no  part  of  the  United  States.  How  can  it  be? 
Hov/  is  it  represented  ?  Do  the  laws  of  the  United  States  reach 
Florida?     Not  unless  by  particular  provisions." 

The  opinion  of  Mr.  Chief  Justice  Marshall  in  this  case  should  be 
read  in  connection  with  Art.  Ill,  secs.l  and  2,  of  the  Constitution,  vest- 
ing <' the  judicial  power  of  the  United  States"  in  "one  Su^jreme 
Court  and  in  such  inferior  courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  Tlie  judges  both  of  the  Supreme  Court 
and  the  inferior  courts  shall  hold  their  offices  during  good  behavior," 
etc.  He  held  that  the  court  "should  take  into  view  the  relation  in 
which  Florida  stands  to  the  United  States;  "  that  territory  ceded  by 
treaty  "  becomes  a  part  of  the  nation  to  which  it  is  annexed,  either 
on  the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new 
master  shall  impose."  That  Florida,  upon  the  conclusion  of  the 
treaty,  became  a  territory  of  the  United  States  and  subject  to  the 
power  of  Congress  under  the  territorial  clause  of  the  Constitution. 
The  acts  providing  a  territorial  government  for  Florida  were  examined 
in  detail.  He  held  that  the  judicial  clause  of  the  Constitution,  above 
quoted,  did  not  apply  to  Florida;  that  tlie  judges  of  the  Superior 
Courts  of  Florida  held  their  office  for  four  years  ;  that  "  these  courts 
are  not  constitutional  courts  in  which  the  judicial  power  conferred 
by  the  Constitution  on  the  general  government  can  be  deposited  ; " 
that  "  they  are  legislative  courts,  created  in  virtue  of  the  general 
right  of  sovereignty  which  exists  in  the  government,"  or  in  virtue 
of  the  territorial  clause  of  the  Constitution  ;  that  the  jurisdiction 
with  which  they  are  invested  is  not- a  part  of  judicial  power  of  the 
Constitution,  but  is  conferred  by  Congress  in  the  exercise  of  those 
general  powers  which  that  body  possesses  over  the  territories  of  the 
United  States  ;  and  that  in  legislating  for  them  Congress  exercises 
the  combined  powers  of  the  general  and  of  a  State  government. 
The  act  of  the  territorial  legislature  creating  the  court  in  question 
was  held  not  to  be  "inconsistent  with  the  laws  and  Constitution  of 
the  United  States,"  and  the  decree  of  the  Circuit  Court  was  affirmed. 

As  the  only  judicial  power  vested  in  Congress  is  to  create  courts 
whose  judges  shall  hold  their  offices  during  good  behavior,  it  neces- 
sarily follows  that,  if  Congress  authorizes  the  creation  of  courts  and 
the  appointment  of  judges  for  a  limited  time,  it  must  act  independ- 
ently of  the  Constitution  and  upon  territory  which  is  not  part  of  the 
United  States  within  the  meaning  of  the  Constitution.  In  delivering 
his  opinion  in  this  case  Mr.  Chief  Justice  Marsliall  made  no  reference 
whatever  to  the  ])rior  case  of  Loughborough  v.  Blake,  5  Wheat.  317, 
in  which  he  had  intimated  that  the  territories  were  part  of  the  United 
States.  But  if  they  be  a  part  of  the  United  States,  it  is  difficult  to 
see  how  Congress  could  create  courts  in  such  territories,  except  under 
the  judicial  clause  of  the  Constitution.     The  power  to  make  needful 


1134       ADDITIONAL    CASES    RELATING   TO   ANNEXATION    OF   TERRITORY. 

rules  and  regulations  would  certainly  not  authorize  anything  incon- 
sistent with  the  Constitution  if  it  applied  to  the  territories.  Cer- 
tainly no  such  court  could  be  created  within  a  State,  except  under  the 
restrictions  of  the  judicial  clause.  It  is  sufficient  to  say  that  this 
case  has  ever  since  been  accepted  as  authority  for  the  proposition 
that  the  judicial  clause  of  the  Constitution  has  no  application  to 
courts  created  in  the  territories,  and  that  with  respect  to  them  Con- 
gress has  a  power  wholly  unrestricted  by  it.  We  must  assume  as  a 
logical  inference  from  this  case  that  the  other  powers  vested  in  Con- 
gress by  the  Constitution  have  no  application  to  these  territories,  or 
that  the  judicial  clause  is  exceptional  in  that  particular. 

This  case  was  followed  in  Benner  v.  Porter,  9  How.  23.5,  in  which 
it  was  held  that  the  jurisdiction  of  these  territorial  courts  ceased 
upon  the  admission  of  Florida  into  the  Union,  Mr.  Justice  Nelson 
remarking  of  them  (p.  242),  that  ''they  ai-e  not  organized  under  the 
Constitution,  nor  subject  to  its  complex  distribution  of  the  powers  of 
government,  as  the  organic  law ;  but  are  the  creations,  exclusively,  of 
the  legislative  department,  and  subject  to  its  supervision  and  control. 
Whether  or  not  there  are  provisions  in  that  instrument  which  ex- 
tend to  and  act  upon  these  territorial  governments,  it  is  not  now 
material  to  examine.  We  are  speaking  here  of  those  provisions  that 
refer  particularly  to  the  distinction  between  Federal  and  State  juris- 
diction. ...  (p.  214).  Xeither  were  they  organized  by  Congress 
under  the  Constitution,  as  they  were  invested  with  powers  and  juris- 
diction which  that  body  were  incapable  of  conferring  upon  a  court 
within  the  limits  of  a  State."  To  the  same  effect  are  Clinton  v. 
Englebrecht,  13  Wall.  434;  Good  v.  Martin,  95  U.  S.  90,  98;  and 
McAllister  v.  United  States,  141  U.  S.  174. 

That  the  power  over  the  territories  is  vested  in  Congress  without 
limitation,  and  that  this  power  has  been  considered  the  foundation 
upon  which  the  territorial  governments  rest,  was  also  asserted  by 
Chief  Justice  Marshall  in  M'Culloch  v.  Maryland,  4  Wheat.  316,  422 
[1],  and  in  United  States  v.  Gratiot,  14  Pet.  526.  So,  too,  in  Mormon 
Church  V.  United  States,  136  U.  S.  1  [835],  in  holding  that  Congress 
had  power  to  repeal  the  charter  of  the  church,  Mr.  Justice  Bradley 
used  the  following  forceful  language :  "  The  power  of  Congress  over 
the  territories  of  the  United  States  is  general  and  plenary,  arising 
from  and  incidental  to  the  right  to  acquire  the  territory  itself,  and 
from  the  power  given  by  the  Constitution  to  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States.  It  would  be  absurd  to  hold  that  the  United 
States  has  power  to  acquire  territory,  and  no  power  to  govern  it 
Avhen  acquired.  The  power  to  acquire  territory,  other  than  the 
territory  northwest  of  the  Ohio  River  (which  belonged  to  the  United 
States  at  the  adoption  of  the  Constitution),  is  derived  from  the  treaty- 
making  power  and  the  power  to  declare  and  carry  on  war.  The  inci- 
dents of  these  powers  are  those  of  national  sovereignty  and  belong  to 


DOWNES   V.    BID  WELL.  1135 

all  independent  governments.  The  power  to  make  acquisitions  of 
territory  by  conquest,  by  treaty,  and  by  cession  is  an  incident  of  na- 
tional sovereignty.  The  Territory  of  Louisiana,  when  acquired  from 
Trance,  and  the  territories  west  of  the  Rocky  mountains,  when  ac- 
quired from  Mexico,  became  the  absolute  property  and  domain  of  the 
United  States,  subject  to  such  conditions  as  the  government,  in  its 
diplomatic  negotiations,  had  seen  fit  to  accept  relating  to  the  rights  of 
the  people  then  inhabiting  those  territories.  Having  rightfully 
acquired  said  territories,  the  United  States  government  was  the  only 
one  which  could  impose  laws  upon  them,  and  its  sovereignty  over 
them  was  complete.  .  .  .  Doubtless  Congress,  in  legislating  for  the 
territories,  would  be  subject  to  those  fundamental  limitations  in 
favor  of  personal  rights,  which  are  formulated  in  the  Constitution  and 
its  amendments,  but  these  limitations  would  exist  rather  by  infer- 
ence and  the  general  spirit  of  the  Constitution,  from  which  Congress 
derives  all  its  powers,  than  by  any  express  and  direct  application  of 
its  provisions."  See  also,  to  the  same  effect,  National  Bank  u.  County 
of  Yankton,  101  U.  S.  129;  Murphy  v.  Ramsey,  114  U.  S.  15. 

In  Webster  v.  Reid,  11  How.  437,  it  was  held  that  a  law  of  the 
Territory  of  Iowa,  which  prohibited  the  trial  by  jury  of  certain  actions 
at  law  founded  on  contract  to  recover  payment  for  services,  was  void; 
but  the  case  is  of  little  value  as  bearing  upon  the  question  of  the  ex- 
tension of  the  Constitution  to  that  Territory,  inasmuch  as  the  organic 
law  of  the  Territory  of  Iowa,  by  express  provision  and  by  reference, 
extended  the  laws  of  the  United  States,  including  the  ordinance  of 
1787  (which  provided  expressly  for  jury  trials),  so  far  as  they  were 
applicable;  and  the  case  was  put  upon  this  ground.  5  Stat.  235, 
239,  chap.  96,  sec.  12. 

In  Reynolds  v.  United  States,  98  U.  S.  145  [883  n\  a  law  of  the  Ter- 
ritory of  Utah,  providing  for  grand  juries  of  iiiteen  persons,  was  held 
to  be  constitutional,  though  Rev.  Stat.  sec.  808,  required  that  a  grand 
jury  impaneled  before  any  Circuit  or  District  Court  of  the  United 
States  shall  consist  of  not  less  than  sixteen  nor  more  than  twenty- 
three  persons.  Section  808  was  held  to  apply  only  to  the  Circuit  and 
District  Courts.  The  territorial  courts  were  free  to  act  in  obedience 
to  their  own  laws. 

In  Ross's  Case,  140  U.  S.  453,  petitioner  had  been  convicted  by  the 
American  consular  tribunal  in  Japan,  of  a  murder  committed  upon  an 
American  vessel  in  the  harbor  of  Yokohama,  and  sentenced  to  death. 
There  was  no  indictment  by  a  grand  jury,  and  no  trial  by  a  petit 
jury.  This  court  affirmed  the  conviction,  holding  that  the  Constitu- 
tion had  no  application,  since  it  was  ordained  and  established  "for 
the  United  States  of  America,"  and  not  for  countries  outside  of  their 
limits.  "  The  guaranties  it  affords  against  accusation  of  capital  or 
infamous  crimes,  except  by  indictment  or  presentment  by  a  grand 
jury,  and  for  an  impartial  trial  by  a  jury  when  thus  accused,  apply 
only  to  citizens  and  others  within  the  United   States,   or  who  are 


1136      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OP   TERRITORY. 

brought  there  for  trial  for  alleged  offenses  committed  elsewhere,  and 
not  to  residents  or  temporary  sojourners  abroad." 

In  Springville  v.  Thomas,  166  U.  S.  707,  it  was  held  tliat  a  verdict 
returned  by  less  than  the  whole  number  of  jurors  was  invalid  because 
in  contravention  of  the  Seventh  Amendment  to  the  Constitution  and 
the  act  of  Congress  of  April  7,  1874  (18  Stat.  27,  chap.  80),  which 
provide  "  that  no  party  has  been  or  shall  be  deprived  of  the  right  of 
trial  by  jury  in  cases  cognizable  at  common  law."  It  was  also  inti- 
mated that  Congress  '^  could  not  impart  the  power  to  change  the 
constitutional  rule,"  which  was  obviously  true  with  respect  to  Utah, 
since  the  organic  act  of  that  Territory  [9  Stat.  458,  chap.  51,  sec.  17] 
had  expressly  extended  to  it  the  Constitution  and  laws  of  the 
United  States.  As  we  have  already  held,  that  provision,  once  made, 
could  not  be  withdrawn.  If  the  Constitution  could  be  withdrawn 
directly,  it  could  be  nullified  indirectly  by  acts  passed  inconsistent 
with  it.  The  Constitution  would  thus  cease  to  exist  as  such,  and  be- 
come of  no  greater  authority  than  an  ordinary  act  of  Congress.  In 
American  Pub.  Co.  v.  Fisher,  166  U.  S.  464,  a  similar  law  providing 
for  majority  verdicts  was  put  upon  the  express  ground  above  stated, 
that  the  organic  act  of  Utah  extended  the  Constitution  over  that  Ter-  -j 
ritory.  These  rulings  were  repeated  in  Thompson  v.  Utah,  170  U.  m\ 
S.  313  [831],  and  applied  to  felonies  committed  before  the  Territory 
became  a  State,  although  the  state  Constitution  continued  the  same 
provision. 

Eliminating,  then,  from  the  opinions  of  this  court  all  expressions 
unnecessary  to  the  disposition  of  the  particular  case,  and  gleaning 
therefrom  the  exact  point  decided  in  each,  the  following  propositions 
may  be  considered  as  established  : 

1.  That  the  District  of  Columbia  and  the  territories  are  not  States 
within  the  judicial  clause  of  the  Constitution  giving  jurisdiction  iu 
cases  between  citizens  of  different  States ; 

2.  That  territories  are  not  States  within  the  meaning  of  Rev.  Stat., 
sec.  709,  permitting  writs  of  error  from  this  court  in  cases  where  the 
validity  of  a  state  statute  is  drawn  in  question ; 

3.  That  the  District  of  Columbia  and  the  territories  are  States  as 
that  word  is  used  in  treaties  with  foreign  powers,  with  respect  to  the 
ownership,  disposition,  and  inheritance  of  property; 

4.  That  the  territories  are  not  within  the  clause  of  the  Constitu- 
tion providing  for  the  creation  of  a  Supreme  Court  and  such  inferior 
courts  as  Congress  may  see  fit  to  establish  ; 

5.  That  the  Constitution  does  not  apply  to  foreign  countries  or  to 
trials  therein  conducted,  and  that  Congress  may  lawfully  provide  for 
such  trials  before  consular  tribunals,  without  the  intervention  of  a 
grand  or  petit  jury  ; 

6.  That  where  the  Constitution  has  been  once  formally  extended  by 
Congress  to  territories,  neither  Congress  nor  the  territorial  legislature 
can  enact  laws  inconsistent  therewith. 


DOWNES   y.    BIDWELL.  1137 

The  case  of  Dred  Scott  v.  Sandford,  19  How.  393,  remains  to  be 
considered.  This  was  an  action  of  trespass  vi  et  armis  brought  in  the 
Circuit  Court  for  the  district  of  Missouri  by  Scott,  alleging  himself  to 
be  a  citizen  of  Missouri,  against  Sandford,  a  citizen  of  Xew  York. 
Defendant  pleaded  to  the  jurisdiction  that  Scott  was  not  a  citizen  of 
the  State  of  Missouri,  because  a  negro  of  African  descent,  whose  an- 
cestors were  imported  as  negro  slaves.  Plaintiff  demurred  to  this 
plea  and  the  demurrer  was  sustained  ;  whereupon,  by  stipulation  of 
counsel  and  with  leave  of  the  court,  defendant  pleaded  in  bar  the 
general  issue,  and  specially  that  the  plaintiff  was  a  slave  and  the  law- 
ful property  of  defendant,  and,  as  such,  he  had  a  right  to  restrain  him. 
The  wife  and  children  of  the  plaintiff  were  also  involved  in  the  suit. 

The  facts  in  brief  were  that  plaintiff  had  been  a  slave  belonging  to 
Dr.  Emerson,  a  surgeon  in  the  army  ;  that  in  ISS-l  Emerson  took  the 
plaintiff  from  the  State  of  Missouri  to  Rock  Island,  Illinois,  and  sub- 
sequently to  Fort  Snelling,  Minnesota  (then  known  as  Upper  Louisi- 
ana), and  held  him  there  until  1838.  Scott  married  his  wife  there, 
of  whom  the  children  were  subsequently  born.  In  1838  they 
returned  to  Missouri. 

Two  questions  were  presented  by  the  record  :  First,  whether  the 
Circuit  Court  had  jurisdiction  ;  and,  second,  if  it  had  jurisdiction,  was 
the  judgment  erroneous  or  not?  With  regard  to  the  first  ques- 
tion, the  court  stated  that  it  was  its  duty  "to  decide  whether  the  facts 
stated  in  the  plea  are  or  are  not  sufficient  to  show  that  the  plaintiff  is 
not  entitled  to  sue  as  a  citizen  in  a  court  of  the  United  States,"  and 
that  the  question  was  whether  "  a  negro  whose  ancestors  were  im- 
ported into  this  country  and  sold  as  slaves  became  a  member  of 
the  political  community  formed  and  brought  into  existence  by  the 
Constitution  of  the  United  States,  and  as  such  entitled  to  all  the 
rights  and  privileges  and  immunities  guaranteed  by  that  instrument 
to  the  citizen,  one  of  which  rights  is  the  privilege  of  suing  in  a  court 
of  the  United  States."  It  was  held  that  he  was  not,  and  was  not 
included  under  the  word  "  citizens  "  in  the  Constitution,  and  therefore 
could  claim  "  none  of  the  rights  and  privileges  which  that  instrument 
provides  for  and  secures  to  citizens  of  the  United  States  ;  "  that  it 
did  not  follow,  because  he  had  all  the  rights  and  privileges  of  a  citizen 
of  a  State,  he  must  be  a  citizen  of  the  United  States ;  that  no  State 
could  by  any  law  of  its  own  "  introduce  a  new  member  into  the  po- 
litical community  created  by  the  Constitution  "  ;  that  the  African  race 
was  not  intended  to  be  included,  and  formed  no  part  of  the  people  who 
framed  and  adopted  the  Declaration  of  Independence.  The  question 
of  the  status  of  negroes  in  England  and  the  several  States  was  con- 
sidered at  great  length  by  the  Chief  Justice,  and  the  conclusion 
reached  that  Scott  was  not  a  citizen  of  Missouri,  and  that  the  Circuit 
Court  had  no  jurisdiction  of  the  case. 

This  was  sufficient  to  dispose  of  the  case  without  reference  to  the 
question  of  slavery;  but,  as  the  plaintiff  insisted  upon  his  title   to 


1138      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF  TERRITORY. 


freedom  and  citizenship  by  the  fact  that  he  and  his  wife,  though  born 
slaves,  were  taken  by  their  owner  and  kept  four  years  in  Illinois  and 
Minnesota,  they  thereby  became  free,  and  upon  their  return  to  Mis- 
souri became  citizens  of  that  State,  the  Chief  Justice  proceeded  to 
discuss  the  question  whether  Scott  was  still  a  slave.  As  the  court 
had  decided  against  his  citizenship  upon  the  plea  in  abatement,  it  was 
insisted  that  further  decision  upon  the  question  of  his  freedom  or 
slavery  was  extra  judicial  and  mere  obiter  dicta.  But  the  Chief 
Justice  held  that  the  correction  of  one  error  in  the  court  below  did 
not  deprive  the  appellate  court  of  the  power  of  examining  further 
into  the  record  and  correcting  any  other  material  error  which  may 
have  been  committed  ;  that  the  error  of  an  inferior  court  in  actually 
pronouncing  judgment  for  one  of  the  parties,  in  a  case  in  which  it 
had  no  jurisdiction,  can  be  looked  into  or  corrected  by  this  court,  even 
though  it  had  decided  a  similar  question  presented  in  the  pleadings. 

Proceeding  to  decide  the  case  upon  the  merits,  he  held  that  the 
territorial  clause  of  the  Constitution  was  conliued  to  the  territory 
which  belonged  to  the  United  States  at  the  time  the  Constitution  was 
adopted,  and  did  not  apply  to  territory  subsequently  acquired  from  a 
foreign  government. 

In  further  examining  the  question  as  to  what  provision  of  the 
Constitution  authorizes  the  Federal  government  to  acquire  territory 
outside  of  the  original  limits  of  the  United  States,  and  what  powers 
it  may  exercise  therein  over  the  person  or  property  of  a  citizen  of  the 
United  States,  he  made  use  of  the  following  expressions,  upon  which 
great  reliance  is  placed  by  the  plaintiff  in  this  ease  (p.  446) :  "  Tliere 
is  certainly  no  power  given  by  the  Constitution  to  the  Federal  gov- 
ernment to  establish  or  maintain  colonies  bordering  on  the  United 
States  or  at  a  distance,  to  be  ruled  and  governed  at  its  own  pleasure; 
.  .  .  and  if  a  new  State  is  admitted,  it  needs  no  further  legislation  by 
Congress,  because  the  Constitution  itself  defines  the  relative  rights 
and  powers  and  duties  of  the  State,  and  the  citizens  of  the  State,  and 
the  Federal  government.  But  no  power  is  given  to  acquire  a  territory 
to  be  held  and  governed  permanently  in  that  character." 

He  further  held  that  citizens  who  migrate  to  a  territory  cannot  be 
ruled  as  mere  colonists,  and  that,  while  Congress  had  the  power  of 
legislating  over  territories  until  states  were  formed  from  them,  it 
could  not  deprive  a  citizen  of  his  property  merely  because  he  brought 
it  into  a  particular  territory  of  the  United  States,  and  that  this 
doctrine  applied  to  slaves  as  well  as  to  other  property.  Hence,  it 
followed  that  the  act  of  Congress  which  prohibited  a  citizen  from 
holding  and  owning  slaves  in  territories  north  of  36°  30'  (known  as 
the  Missouri  Compromise)  was  unconstitutional  and  void,  and  the 
fact  that  Scott  was  carried  into  such  territory,  referring  to  what  is 
now  known  as  Minnesota,  did  not  entitle  him  to  his  freedom. 

He  further  held  that  whether  he  was  made  free  by  being  taken  into 
the  free  State  of  Illinois  and  being  kept  there  two  years  depended 


DOWNES    V.    BIDWELL.  1139 

upon  the  laws  of  Missouri,  and  not  those  of  Illinois,  and  that  by  the 
decisions  of  the  highest  court  of  that  State  his  status  as  a  slave  con- 
tinued, notwithstanding  his  residence  of  two  years  in  Illinois. 

It  must  be  admitted  that  this  case  is  a  strong  authority  in  favor  of 
the  plaintiff,  and  if  the  opinion  of  the  Chief  Justice  be  taken  at  its 
full  value  it  is  decisive  in  his  favor.  We  are  not,  however,  bound  to 
overlook  the  fact,  that,  before  the  Chief  Justice  gave  utterance  to  his 
opinion  upon  the  merits,  he  had  already  disposed  of  the  case  adversely 
to  the  plaintiff  upon  the  question  of  jurisdiction,  and  that,  in  view  of 
the  excited  political  condition  of  the  country  at  the  time,  it  is  un- 
fortunate that  he  felt  compelled  to  discuss  the  question  upon  the 
merits,  particularly  so  in  view  of  the  fact  that  it  involved  a  ruling 
that  an  act  of  Congress  which  had  been  acquiesced  in  for  thirty  years 
•was  declared  unconstitutional.  It  would  appear  from  the'  opinion  of 
Mr.  Justice  Wayne  that  the  real  reason  for  discussing  these  consti- 
tutional questions  was  that  "  there  had  become  such  a  difference  of 
opinion"  about  them  ''that  the  peace  and  harmony  of  the  country 
required  the  settlement  of  them  by  judicial  decision  "  (p.  455).  The 
attempt  was  not  successful.  It  is  sufficient  to  say  that  the  country 
did  not  acquiesce  in  the  opinion,  and  that  the  Civil  War,  which 
shortly  thereafter  followed,  produced  such  changes  in  judicial,  as 
well  as  public,  sentiment  as  to  seriously  impair  the  authority  of  this 
case. 

While  there  is  much  in  the  opinion  of  the  Chief  Justice  which 
tends  to  prove  that  he  thought  all  the  provisions  of  the  Constitution 
extended  of  their  own  force  to  the  territories  west  of  the  Mississippi, 
the  question  actually  decided  is  readily  distinguishable  from  the  one 
involved  in  the  cause  under  consideration.  The  power  to  prohibit 
slavery  in  the  territories  is  so  different  from  the  power  to  impose 
duties  upon  territorial  products,  and  depends  upon  such  different 
provisions  of  the  Constitution,  that  they  can  scarcely  be  considered 
as  analogous,  unless  we  assume  broadly  that  every  clause  of  the  Con- 
stitution attaches  to  the  territories  as  well  as  to  the  States  — a  claim 
quite  inconsistent  with  the  position  of  the  court  in  the  Canter  case. 
If  the  assumption  be  true  that  slaves  are  indistinguishable  from  other 
property,  the  inference  from  the  Dred  Scott  case  is  irresistible  that 
Congress  had  no  power  to  prohibit  their  introduction  into  a  territory. 
It  would  scarcely  be  insisted  that  Congress  could  with  one  hand 
invite  settlers  to  locate  in  the  territories  of  the  United  States,  aiid 
with  the  other  deny  them  the  right  to  take  their  property  and  belong- 
ings with  them.  The  two  are  so  inseparable  from  each  other  that  one 
could  scarcely  be  granted  and  the  other  withheld  without  an  exercise 
of  arbitrary  power  inconsistent  with  the  underlyinj^  principles  of  a 
free  government.  It  might  indeed  be  claimed  with  great  plausibility 
that  such  a  law  would  amount  to  a  deprivation  of  property  within  the 
Fourteenth  Amendment.  Tlie  difficulty  with  the  Dred  Scott  case  was 
that  the  court  refused  to    make  a   distinction  between  property  in 


1140      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

general  and  a  wholly  exceptional  class  of  property.  Mr.  Benton 
tersely  stated  the  distinction  by  saying  that  the  Virginian  might 
carry  his  slave  into  the  territories,  but  he  could  not  carry  with  him 
the  Virginian  law  which  made  him  a  slave. 

In  his  history  of  the  Dred  Scott  case,  Mr.  Benton  states  that  the  doc- 
trine that  the  Constitution  extended  to  territories  as  well  as  to  States 
first  made  its  appearance  in  the  Senate  in  the  session  of  1848-1849,  by 
an  attempt  to  amend  a  bill  giving  territorial  government  to  California, 
New  Mexico,  and  Utah  (itself  "  hitched  on  "  to  a  general  appropriation 
bill),  by  adding  the  words  "  that  the  Constitution  of  the  United  States 
and  all  and  singular  the  several  acts  of  Congress  (describing  them)  be 
and  the  same  hereby  are  extended  and  given  full  force  and  efficacy  in 
said  territories."  Says  Mr.  Benton  :  "  The  novelty  and  strangeness  of 
this  proposition  called  up  Mr.  Webster,  who  repulsed  as  an  absurdity 
and  as  an  impossibility  the  scheme  of  extending  the  Constitution  to 
the  territories,  declaring  that  instrument  to  have  been  made  for  States 
not  territories  ;  that  Congress  governed  the  territories  independently 
of  the  Constitution  and  incompatibly  with  it ;  that  no  part  of  it  went 
to  a  territory  but  what  Congress  chose  to  send ;  that  it  could  not  act 
of  itself  anywhere,  not  even  in  the  States  for  which  it  was  made,  and 
that  it  required  an  act  of  Congress  to  put  it  in  operation  before  it 
had  effect  anywhere.  Mr.  Clay  Avas  of  the  same  opinion  and  added: 
'  Now,  really,  1  must  say  the  idea  that  eo  instanti  upon  the  consum- 
mation of  the  treaty,  the  Constitution  of  the  United  States  spread 
itself  over  the  acquired  territory  and  carried  along  with  it  the  insti- 
tution of  slavery  is  so  irreconcilable  with  my  comprehension,  or  any 
reason  I  possess,  that  I  hardly  know  how  to  meet  it.'  Upon  the 
other  hand,  Mr.  Calhoun  boldly  avowed  his  intent  to  carry  slavery 
into  them  under  the  wing  of  the  Constitution,  and  denounced  as  ene- 
mies of  the  South  all  who  opposed  it." 

The  amendment  was  rejected  by  the  House,  and  a  contest  brought 
on  which  threatened  the  loss  of  the  general  appropriation  bill  in  which 
this  amendment  was  incorporated,  and  the  Senate  finally  receded  from 
its  amendment.  *'  Such,"  said  Mr.  Benton,  "  were  the  portentous 
circumstances  under  which  this  new  doctrine  first  revealed  itself  in 
the  American  Senate,  and  then  as  needing  legislative  sanction  requir- 
ing an  act  of  Congress  to  carry  the  Constitution  into  the  territories 
and  to  give  it  force  and  efficacy  there."  Of  the  Dred  Scott  case  he 
says :  "  1  conclude  this  introductory  note  with  recurring  to  the  great 
fundamental  error  of  the  court  (father  of  all  the  political  errors),  that 
of  assuming  the  extension  of  the  Constitution  to  the  territories.  I 
call  it  assuming,  for  it  seems  to  be  a  naked  assumption  without  a 
reason  to  suppoTt  it,  or  a  leg  to  stand  upon,  condemned  by  the  Con- 
stitution itself  and  the  whole  history  of  its  formation  and  adminis- 
tration. Who  were  the  parties  to  it  ?  The  States  alone.  Their 
delegates  framed  it  in  the  Federal  convention  ;  their  citizens  adopted 
it  in  the  State  conventions.     The  Northwest  Territory  was  then  in 


DOWNES   V.    BIDWELL.  1141 

existence  and  it  had  been  for  three  years  ;  yet  it  had  no  voice  either 
in  the  framing  or  adopting  of  the  instrument,  no  delegate  at  Phila- 
delphia, no  submission  of  it  to  their  will  for  adoption.  The  pream- 
ble shows  it  made  by  States.     Territories  are  not  alluded  to  in  it." 

Finally,  in  summing  up  the  results  of  the  decisions  holding  the  in- 
validity of  the  Missouri  Compromise  and  the  self-extension  of  the 
Constitution  to  the  territories,  he  declares  "  that  the  decisions  con- 
flict with  the  uniform  action  of  all  the  departments  of  the  Federal 
government  from  its  foundation  to  the  present  time,  and  cannot  be 
received  as  rules  governing  Congress  and  the  people  without  revers- 
ing that  action,  and  admitting  the  political  supremacy  of  the  court,  and 
accepting  an  altered  Constitution  from  its  hands,  and  taking  a  new  and 
portentous  point  of  departure  in  the  working  of  the  government." 

To  sustain  the  judgment  in  the  case  under  consideration,  it  by  no 
means  becomes  necessary  to  show  that  none  of  the  articles  of  the 
Constitution  apply  to  the  island  of  Porto  Kico.  There  is  a  clear  dis- 
tinction between  such  prohibitions  as  go  to  the  very  root  of  the  power 
of  Congress  to  act  at  all,  irrespective  of  time  or  place,  and  such  as  are 
operative  only  "  throughout  the  United  States  "  or  among  the  several 
States: 

Thus,  when  the  Constitution  declares  that  *'  no  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed,"  and  that  "  no  title  of  nobility 
shall  be  granted  by  the  United  States,"  it  goes  to  the  competency  of 
Congress  to  pass  a  bill  of  that  description.  Perhaps  the  same  remark 
may  apply  to  the  First  Amendment,  that  "Congress  shall  make  no 
law  respecting  an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the  press; 
or  the  right  of  the  people  to  peacefully  assemble  and  to  petition  the 
government  for  a  redress  of  grievances."  We  do  not  wish,  however, 
to  be  understood  as  expressing  an  opinion  how  far  the  bill  of  rights 
contained  in  the  first  eight  amendments  is  of  general  and  how  far  of 
local  application. 

Upon  the  other  hand,  when  the  Constitution  declares  that  all  duties 
shall  be  uniform  "  throughout  the  United  States,"  it  becomes  neces- 
sary to  inquire  whether  there  be  any  territory  over  which  Congress 
has  jurisdiction  which  is  not  a  part  of  the  "  United  States,"  by  which 
term  we  understand  the  States  whose  people  united  to  form  the  Con- 
stitution, and  such  as  have  since  been  admitted  to  the  Union  upon  an 
equality  with  them.  Not  only  did  the  people  in  adopting  the  Thir- 
teenth Amendment  thus  recognize  a  distinction  between  the  United 
States  and  "any  place  subject  to  their  jurisdiction,"  but  Congress 
itself,  in  the  act  of  March  27,  1804  (2  Stat.  298,  chap.  56),  providing 
for  the  proof  of  public  records,  applied  the  provisions  of  the  act,  not 
only  to  "  every  court  and  office  within  the  United  States,"  but  to  the 
"courts  and  offices  of  the  respective  territories  of  the  United  States 
and  countries  subject  to  the  jurisdiction  of  the  United  States,"  as  to 
the   courts    and    offices   of  the   several    States.     This   classification, 


1142      ADDITIONAL    CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 


adopted  by  the  Eighth  Congress,  is  carried  into  the  Revised  Statutes 
as  follows : 

"  Sec.  905.  The  acts  of  the  legislature  of  any  State  or  territory,  or 
of  any  country  subject  to  the  jurisdiction  of  the  United  States,  shall 
be  authenticated,"  etc. 

"  Sec.  906.  All  records  and  exemplifications  of  books  which  may  be 
kept  in  any  public  office  of  any  State  or  Territory,  or  of  any  country 
subject  to  the  jurisdiction  of  the  United  States,"  etc. 

Unless  these  words  are  to  be  rejected  as  meaningless,  we  must  treat 
them  as  a  recognition  by  Congress  of  the  fact  that  there  may  be  ter- 
ritories subject  to  the  jurisdiction  of  the  United  States,  which  are  not 
of  the  United  States. 

In  determining  the  meaning  of  the  words  of  Art.  I,  sec.  8,  "  uni- 
form throughout  the  United  States,"  we  are  bound  to  consider,  not 
only  the  provisions  forbidding  preference  being  given  to  the  ports 
of  one  State  over  those  of  another  (to  which  attention  has  already 
been  called),  but  the  other  clauses  declaring  that  no  tax  or  duty  shall 
be  laid  on  articles  exported  from  any  State,  and  that  no  State  shall, 
without  the  consent  of  Congress,  lay  any  imposts  or  duties  upon  im- 
ports or  exports,  nor  any  duty  on  tonnage.  The  object  of  all  of  these 
w\as  to  protect  the  States  wliich  united  in  forming  the  Constitution 
from  discriminations  by  Congress,  which  would  operate  unfairly  or  in- 
juriously upon  some  States  and  not  equally  upon  others.  The  opinion 
of  Mr.  Justice  White  in  Knowlton  v.  Moore,  178  U.  S.  41,  contains 
an  elaborate  historical  review  of  the  proceedings  in  the  convention, 
which  resulted  in  the  adoption  of  these  different  clauses  and  their 
arrangement,  and  he  there  comes  to  the  conclusion  (p.  105)  that  "  al- 
though the  provision  as  to  preference  between  ports  and  that  regard- 
ing uniformity  of  duties,  imposts,  and  excises  were  one  in  purpose, 
one  in  their  adoption,"  they  were  originally  placed  together,  and 
"  became  separate  only  in  arranging  the  Constitution  for  the  pur- 
pose of  style."  Thus  construed  together,  the  purpose  is  irresistible 
that  the  words  "  throughout  the  United  States  "  are  indistinguishable 
from  the  words  "  among  or  between  the  several  States,"  and  that  these 
prohibitions  were  intended  to  apply  only  to  commerce  between  ports 
of  the  several  States  as  they  then  existed  or  should  thereafter  be 
admitted  to  the  Union. 

Indeed,  the  practical  interpretation  put  by  Congress  upon  the  Con- 
stitution has  been  long  continued  and  uniform  to  the  effect  that  the 
Constitution  is  applicable  to  territories  acquired  by  purchase  or  con- 
quest, only  when  and  so  far  as  Congress  shall  so  direct.  Notwith- 
standing its  duty  to  "  guarantee  to  every  State  in  this  Union  a 
republican  form  of  government  "  (Art.  IV,  sec.  4),  by  which  we  under- 
stand, according  to  the  definition  of  Webster,  "  a  government  in 
which  the  supreme  power  resides  in  the  whole  body  of  the  people, 
and  is  exercised  by  representatives  elected  by  them,"  Congress  did 
not  hesitate,  in  the  original  organization  of  the  territories  of  Louisi- 


DOWNES   V,    BIDWELL.  1143 

ana,  Florida,  the  Xortliwest  Territory,  and  its  subdivisions  of  Ohio, 
Indiana,  Michigan,  Illinois,  and  Wisconsin  and  still  more  recently  in 
the  case  of  Alaska,  to  establish  a  form  of  government  bearing  a  much 
greater  analogy  to  a  British  crown  colony  than  a  republican  State  of 
America,  and  to  vest  the  legislative  power  either  in  a  governor  and 
council,  or  a  governor  and  judges,  to  be  appointed  by  the  President. 
It  was  not  until  they  had  attained  a  certain  population  that  power 
was  given  them  to  organize  a  legislature  by  vote  of  the  people.  In 
all  these  cases,  as  well  as  in  territories  subsequently  organized  west 
of  the  Mississippi,  Congress  thought  it  necessary  either  to  extend  the 
Constitution  and  laws  of  the  United  States  over  them,  or  to  declare 
that  the  inhabitants  should  be  entitled  to  enjoy  the  right  of  trial  by 
jury,  of  bail,  and  of  the  privilege  of  the  writ  of  habeas  corpus,  as  well 
as  other  privileges  of  the  bill  of  rights. 

We  are  also  of  opinion  that  the  power  to  acquire  territory  by  treaty 
implies,  not  only  the  power  to  govern  such  territory,  but  to  prescribe 
upon  what  terms  the  United  States  will  receive  its  inhabitants,  and 
what  their  status  shall  be  in  what  Chief  Justice  Marshall  termed  the 
"American  empire."  There  seems  to  be  no  middle  ground  between 
this  position  and  the  doctrine  that  if  their  inhabitants  do  not  become, 
immediately  upon  annexation,  citizens  of  the  United  States,  their 
children  thereafter  born,  whether  savages  or  civilized,  are  such,  and 
entitled  to  all  the  rights,  privileges,  and  immunities  of  citizens.  If 
such  be  their  status,  the  consequences  will  be  extremely  serious.  In- 
deed, it  is  doubtful  if  Congress  would  ever  assent  to  the  annexation 
of  territory  upon  the  condition  that  its  inhabitants,  however  foreign 
they  may  be  to  our  habits,  traditions,  and  modes  of  life,  shall  become 
at  once  citizens  of  the  United  States.  In  all  its  treaties  hitherto  the 
treaty-making  power  has  made  special  provision  for  this  subject ;  in 
the  cases  of  Louisiana  and  Florida,  by  stipulating  that  "  the  inhabit- 
ants shall  be  incorporated  into  the  Union  of  the  United  States  and 
admitted  as  soon  as  possible  ...  to  the  enjoyment  of  all  the  rights, 
advantages,  and  immunities  of  citizens  of  the  United  States;  "  in  the 
case  of  Mexico,  that  they  should  *'  be  incorporated  into  the  Union, 
and  be  admitted  at  the  proper  time  (to  be  judged  of  by  the  Congress  of 
the  United  States)  to  the  enjoyment  of  all  the  rights  of  citizens  of 
the  United  States  ;  "  in  the  case  of  Alaska,  that  the  inhabitants  who 
remained  three  years,  "  with  the  excei)tion  of  uncivilized  native  tribes, 
shall  be  admitted  to  the  enjoyment  of  all  the  rights,"  etc.;  and  in  the 
case  of  Porto  Rico  and  the  Philippines,  "that  the  civil  rights  and 
political  status  of  the  native  inhabitants  .  .  .  shall  be  determined  by 
Congress."  In  all  these  cases  there  is  an  implied  denial  of  the  right 
of  the  inhabitants  to  American  citizenship  until  Congress  by  further 
action  shall  signify  its  assent  thereto. 

Grave  apprehensions  of  danger  are  felt  by  many  eminent  men  — 
a  fear  lest  an  unrestrained  possession  of  power  on  the  part  of  Con- 
gress may  lead  to  unjust  and  oppressive  legislation  in  which  the 


114-1      ADDITIONAL   CASES  RELATING   TO  ANNEXATION   OF   TERRITORY. 


natural  rights  of  territories,  or  their  inhabitants,  may  be  engulfed 
in  a  centralized  despotism.  These  fears,  however,  find  no  justifica- 
tion in  the  action  of  Congress  in  the  past  century,  nor  in  the  conduct 
of  the  British  Parliament  towards  its  outlying  possessions  since  the 
American  Revolution.  Indeed,  in  the  only  instance  in  which  this 
court  has  declared  an  act  of  Congress  unconstitutional  as  trespassing 
upon  the  rights  of  territories  (the  Missouri  Compromise),  such  action 
■was  dictated  by  motives  of  humanity  and  justice,  and  so  far  com- 
manded popular  approval  as  to  be  embodied  in  the  Thirteenth  Amend- 
ment to  the  Constitution.  There  are  certain  principles  of  natural 
justice  inherent  in  the  Anglo-Saxon  character,  which  need  no  expres- 
sion in  constitutions  or  statutes  to  give  them  effect  or  to  secure  de- 
pendencies against  legislation  manifestly  hostile  to  their  real  interests. 
Even  in  the  Foraker  act  itself,  the  constitutionality  of  which  is  so 
vigorously  assailed,  power  was  given  to  the  legislative  assembly  of 
Porto  Eico  to  repeal  the  very  tariff  in  question  in  this  case,  a  power 
it  has  not  seen  fit  to  exercise.  The  words  of  Chief  Justice  Marshall 
in  Gibbons  v.  Ogden,  9  Wheat.  1  [235],  with  respect  to  the  power  of 
Congress  to  regulate  commerce,  are  pertinent  in  this  connection  : 
"  This  power,"  said  he,  "  like  all  others  vested  in  Congress,  is  com- 
plete in  itself,  may  be  exercised  to  its  utmost  extent,  and  acknowledges 
no  limitations  other  than  are  prescribed  in  the  Constitution.  .  .  .  The 
wisdom  and  discretion  of  Congress,  their  identity  with  the  people,  and 
the  influence  which  their  constituents  possess  at  elections,  are  in  this, 
as  in  many  other  instances — as  that,  for  example,  of  declaring  war 
—  the  sole  restraints  on  which  they  have  relied  to  secure  them  from 
its  abuse.  They  are  the  restraints  on  which  the  people  must  often 
rely  solely  in  all  representative  governments." 

So  too,  in  Johnson  v.  M'Intosh,  8  Wheat.  543,  589,  it  was  said  by 
him  : 

"  The  title  by  conquest  is  acquired  and  maintained  by  force.  The 
conqueror  prescribes  its  limits.  Humanity,  however,  acting  on  pub- 
lic opinion,  has  established,  as  a  general  rule,  that  the  conquered 
shall  not  be  wontingly  oppressed,  and  that  their  condition  shall  re- 
main as  eligible  as  is  compatible  with  the  objects  of  the  conquest. 
Most  usually  they  are  incorporated  with  the  victorious  nation  and  be- 
come subjects  or  citizens  of  the  government  with  which  they  are  con- 
nected. The  new  and  old  members  of  the  society  mingle  with  each 
other  ;  the  distinction  between  them  is  gradually  lost,  and  they  make 
one  people.  Where  this  incorporation  is  practicable  humanity  de- 
mands, and  a  wise  policy  requires,  that  the  rights  of  the  conquered 
to  property  should  remain  unimpaired ;  that  the  new  subjects  should 
be  governed  as  equitably  as  the  old  ;  and  that  confidence  in  their 
security  should  gradually  banish  the  painful  sense  of  being  sepa- 
rated from  their  ancient  connections  and  united  by  force  to  strangers. 

"  When  the  conquest  is  complete,  and  the  conquered  inhabitants 
can  be  blended  with  the  conquerors,  or  safely  governed  as  a  distinct 


DOWNES   V.    BIDWELL.  1145 

people,  public  opinion,  which  not  even  the  conqueror  can  disregard, 
imposes  these  restraints  upon  him  ;  and  he  cannot  neglect  them  with- 
out injury  to  his  fame  and  liazard  to  his  power." 

The  following  remarks  of  ^Ir.  Justice  White  in  the  case  of  Knowl- 
ton  V.  Moore,  178  U.  S.  41,  109,  in  which  the  court  upheld  the  progres- 
sive features  of  the  legacy  tax,  are  also  pertinent : 

"  The  grave  consequences  which  it  is  asserted  must  arise  in  the 
future  if  the  right  to  levy  a  progressive  tax  be  recognized,  involves  in 
its  ultimate  aspect  the  mere  assertion  that  free  and  representative  gov- 
ernment is  a  failure,  and  that  the  grossest  abuses  of  power  are  fore- 
shadowed unless  the  courts  usurp  a  purely  legislative  function.  If  a 
case  should  ever  arise  where  an  arbitrary  and  confiscatory  exaction  is 
imposed,  bearing  the  guise  of  a  progressive  or  any  other  form  of  tax, 
it  will  be  time  enough  to  consider  whether  the  judicial  power  can 
afford  a  remedy  by  applying  inherent  and  fundamental  principles  for 
the  protection  of  the  individual,  even  though  there  be  no  express 
authority  in  the  Constitution  to  do  so." 

It  is  obvious  that  in  the  annexation  of  outlying  and  distant  posses- 
sions grave  questions  will  arise  from  differences  of  race,  habits,  laws, 
and  customs  of  the  people,  and  from  differences  of  soil,  climate,  and 
production,  which  may  require  action  on  the  part  of  Congress  that 
would  be  quite  unnecessary  in  the  annexation  of  contiguous  territory 
inhabited  only  by  people  of  the  same  race,  or  by  scattered  bodies  of 
native  Indians. 

We  suggest,  without  intending  to  decide,  that  there  may  be  a  dis- 
tinction between  certain  natural  rights  enforced  in  the  Constitution 
by  prohibitions  against  interference  with  them,  and  what  may  be 
termed  artificial  or  remedial  rights  which  are  peculiar  to  our  own 
system  of  jurisprudence.  Of  the  former  class  are  the  rights  to  one's 
own  religious  opinions  and  to  a  public  expression  of  them,  or,  as 
sometimes  said,  to  worship  God  according  to  the  dictates  of  one's 
own  conscience;  the  right  to  personal  liberty  and  individual  property; 
to  freedom  of  speech  and  of  the  press  ;  to  free  access  to  courts  of  jus- 
tice, to  due  process  of  law,  and  to  an  equal  protection  of  the  laws  ;  to 
immunities  from  unreasonable  searches  and  seizures,  as  well  as  cruel 
and  unusual  punishments;  and  to  such  other  immunities  as  are  indis- 
pensable to  a  free  government.  Of  the  latter  class  are  the  rights  to 
citizenship,  to  suffrage  (Minor  v.  Happersett,  21  W^all.  162  [974]), 
and  to  the  particular  methods  of  procedure  pointed  out  in  the  Con- 
stitution, which  are  peculiar  to  Anglo-Saxon  jurisprudence,  and  some 
of  which  have  already  been  held  by  the  States  to  be  unnecessary  to 
the  proper  protection  of  individuals. 

Whatever  may  be  finally  decided  by  the  American  people  as  to  the 
status  of  these  islands  and  their  inhabitants  —  whether  they  shall  be 
introduced  into  the  sisterhood  of  States  or  be  permitted  to  form  inde- 
pendent governments  —  it  does  not  follow  that  in  the  meantime, 
awaiting  that  decision,  the  people  are  in  the  matter  of  personal  rights 


1146      ADDITIONAL    CASES   RELATING    TO    ANNEXATION    OF   TERRITORY. 


unprotected  by  the  provisions  of  our  Constitution  and  subject  to  the 
merely  arbitrary  control  of  Congress.  Even  if  regarded  as  aliens, 
they  are  entitled  under  the  principles  of  the  Constitution  to  be  pro- 
tected in  life,  liberty,  and  property.  This  has  been  frequently  held 
by  this  court  in  respect  to  the  Chinese,  even  when  aliens,  not  pos- 
sessed of  the  political  rights  of  citizens  of  the  United  States.  Yick 
Wo  V.  Hopkins,  118  U.  S.  356  [917];  Fong  Yue  Ting  >k  United 
States,  149  U.  S.  698  [567 /i];  Lem  Moon  Sing,  158  U.  S.  538,  547; 
Wong  Wing  v.  United  States,  163  U.  S.  228.  We  do  not  desire,  how- 
ever, to  anticipate  the  difficulties  which  would  naturally  arise  in  this 
connection,  but  merely  to  disclaim  any  intention  to  hold  that  the  in- 
habitants of  these  territories  are  subject  to  an  unrestrained  power  on 
the  part  of  Congress  to  deal  with  th'em  upon  the  theory  that  they 
have  no  rights  which  it  is  bound  to  respect. 

Large  powers  must  necessarily  be  intrusted  to  Congress  in  dealing 
with  these  problems,  and  we  are  bound  to  assume  that  they  will  be 
judiciously  exercised.  That  these  powers  may  be  abused  is  possible. 
But  the  same  may  be  said  of  its  powers  under  the  Constitution  as 
well  as  outside  of  it.  Human  wisdom  has  never  devised  a  form  of 
government  so  perfect  that  it  may  not  be  perverted  to  bad  pur- 
poses. It  is  never  conclusive  to  argue  against  the  possession  of  cer- 
tain powers  from  possible  abuses  of  them.  It  is  safe  to  say  that  if 
Congress  should  venture  upon  legislation  manifestly  dictated  by  sel- 
fish interests,  it  would  receive  quick  rebuke  at  the  hands  of  the 
people.  Indeed,  it  is  scarcely  possible  that  Congress  could  do  a 
greater  injustice  to  these  islands  than  would  be  involved  in  hold- 
ing that  it  could  not  impose  upon  the  States  taxes  and  excises 
without  extending  the  same  taxes  to  them.  Such  requirement 
would  bring  them  at  once  within  our  internal  revenue  system,  in- 
cluding stamps,  licenses,  excises,  and  all  the  paraphernalia  of  that 
system,  and  apply  it  to  territories  which  have  had  no  experience 
of  this  kind,  and  where  it  would  prove  an  intolerable  burden. 

This  subject  was  carefully  considered  by  the  Senate  committee  in 
charge  of  the  Foraker  bill,  which  found,  after  an  examination  of  the 
facts,  that  property  in  Porto  Rico  was  already  burdened  with  a  pri- 
vate debt  amounting  probably  to  $30,000,000 ;  that  no  system  of 
property  taxation  was  or  ever  had  been  in  force  in  the  island,  and 
that  it  probably  would  require  two  years  to  inaugurate  one  and  secure 
returns  from  it ;  that  the  revenues  had  always  been  chiefly  raised  by 
duties  on  imports  and  exports,  and  that  our  internal  revenue  laws,  if 
applied  in  that  island,  would  prove  oppressive  and  ruinous  to  many 
people  and  interests;  that  to  undertake  to  collect  our  heavy  internal 
revenue  tax,  far  heavier  than  Spain  ever  imposed  upon  their  products 
and  vocations,  would  be  to  invite  violations  of  the  law  so  innumerable 
as  to  make  prosecutions  impossible,  and  to  almost  certainly  alienate 
and  destroy  the  friendship  and  good  will  of  that  people  for  the 
United  States. 


DOWNES   V.    BIDWELL.  1147 

In  passing  upon  the  questions  involved  in  this  case  and  kindred 
cases,  we  ought  not  to  overlook  the  fact  that,  while  the  Constitution 
was  intended  to  establish  a  permanent  form  of  government  for  the 
States  which  should  elect  to  take  advantage  of  its  conditions,  and 
continue  for  an  indefinite  future,  the  vast  possibilities  of  that  future 
could  never  have  entered  the  minds  of  its  framers.  The  States  had 
but  recently  emerged  from  a  war  with  one  of  the  most  powerful 
nations  of  Europe,  were  disheartened  by  the  failure  of  the  confed- 
eracy, and  were  doubtful  as  to  the  feasibility  of  a  stronger  union. 
Their  territory  was  confined  to  a  narrow  strip  of  land  on  the  Atlantic 
coast  from  Canada  to  Florida,  with  a  somewhat  indefinite  claim  to 
territory  beyond  the  AUeghanies,  where  their  sovereignty  was  dis- 
puted by  tribes  of  hostile  Indians  supported,  as  was  popularly  be- 
lieved, by  the  British,  who  had  never  formally  delivered  possession 
under  the  treaty  of  peace.  The  vast  territory  beyond  the  Missis- 
sippi, which  formerly  had  been  claimed  by  France,  since  1762  had 
belonged  to  Spain,  still  a  powerful  nation  and  the  owner  of  a  great 
part  of  the  Western  Hemisphere.  Under  these  circumstances  it  is 
little  wonder  that  the  question  of  annexing  these  territories  was  not 
made~a  subject  of  debate.  The  difficulties  of  bringing  about  a  union 
of  the  States  were  so  great,  the  objections  to  it  seemed  so  formidable, 
that  the  whole  thought  of  the  convention  centered  upon  surmounting 
these  obstacles.  The  question  of  territories  was  dismissed  with  a 
single  clause,  ajparently  applicable  only  to  the  territories  then  ex- 
isting, giving  Congress  the  power  to  govern  and  dispose  of  them. 

Had  the  acquisition  of  other  territories  been  contemplated  as  a  pos- 
sibility, could  it  have  been  foreseen  that,  within  little  more  than  one 
hundred  years,  we  were  destined  to  acquire,  not  only  the  whole  vast 
region  between  the  Atlantic  and  Pacific  Oceans,  but  the  Russian  pos- 
sessions in  America  and  distant  islands  in  the  Pacific,  it  is  incredible 
that  no  provision  should  have  been  made  for 'them,  and  the  question 
whether  the  Constitution  should  or  should  not  extend  to  them  have 
been  definitely  settled.  If  it  be  once  conceded  that  we  are  at  liberty 
to  acquire  foreign  territory,  a  presumption  arises  that  our  power 
with  respect  to  such  territories  is  the  same  power  which  other 
nations  have  been  accustomed  to  exercise  with  respect  to  territories 
acquired  by  them.  If,  in  limiting  the  power  which  Congress  was  to 
exercise  within  the  United  States,  it  was  also  intended  to  limit  it 
with  regard  to  such  territories  as  the  people  of  the  United  States 
should  thereafter  acquire,  such  limitations  should  have  been  ex- 
pressed. Instead  of  that,  we  find  the  Constitution  speaking  only  to 
States,  except  in  the  territorial  clause,  which  is  absolute  in  its  terms, 
and  suggestive  of  no  limitations  upon  the  power  of  Congress  in  deal- 
ing with  them.  The  States  could  only  delegate  to  Congress  such 
powers  as  they  themselves  possessed,  and  as  they  had  no  power  to 
acquire  new  territory  they  had  none  to  delegate  in  that  connection. 
The  logical  inference   from  this  is  that  if  Congress  had   power  to 


1148       ADDITIONAL    CASES    RELATING    TO    ANNEXATION    OP    TERRITORY. 


acquire  new  territory,  which  is  conceded,  that  power  was  not  ham- 
pered by  the  constitutional  provisions.  If,  upon  the  other  hand,  we 
assume  that  the  territorial  clause  of  the  Constitution  was  not  intended 
to  be  restricted  to  such  territory  as  the  United  States  then  possessed, 
there  is  nothing  in  the  Constitution  to  indicate  that  the  power  of 
Congress  in  dealing  with  them  was  intended  to  be  restricted  by  any 
of  the  other  provisions. 

There  is  a  provision  that  "new  States  may  be  admitted  by  the 
Congress  into  this  Union."  These  words,  of  course,  carry  the  Con- 
stitution with  them,  but  nothing  is  said  regarding  the  acquisition  of 
new  territories  or  the  extension  of  the  Constitution  over  them.  The 
liberality  of  Congress  in  legislating  the  Constitution  into  all  our  con- 
tiguous territories  has  undoubtedly  fostered  the  impression  that  it 
went  there  by  its  own  force,  but  there  is  nothing  in  the  Constitution 
itself,  and  little  in  the  interpretation  put  upon  it,  to  confirm  that  im- 
pression. There  is  not  even  an  analogy  to  the  provisions  of  an  ordi- 
nary mortgage,  for  its  attachment  to  after-acquired  property,  without 
which  it  covers  only  property  existing  at  the  date  of  the  mortgage. 
In  short,  there  is  absolute  silence  upon  the  subject.  The  executive 
and  legislative  departments  of  the  government  have  for  more  than  a 
century  interpreted  this  silence  as  precluding  the  idea  that  the  Con- 
stitution attached  to  these  territories  as  soon  as  acquired,  and  unless 
such  interpretation  be  manifestly  contrary  to  the  letter  or  spirit  of 
the  Constitution,  it  should  be  followed  by  the  judicial  department. 
Cooley,  Const.  Lim.  §§  81-85.  Burrow-Giles  Lithographic  Co,  v. 
Sarony,  111  U.  S.  53,  57;  Field  v.  Clark,  143  U.  S.  649,  691  [95]. 

Patriotic  and  intelligent  men  may  differ  widely  as  to  the  desirable- 
ness of  this  or  that  acquisition,  but  this  is  solely  a  political  question. 
We  can  only  consider  this  aspect  of  the  case  so  far  as  to  say  that  no 
construction  of  the  Constitution  should  be  adopted  which  would  pre- 
vent Congress  from  considering  each  case  upon  its  merits,  unless  the 
language  of  the  instrument  imperatively  demand  it.  A  false  step  at 
this  time  might  be  fatal  to  the  development  of  what  Chief  Justice 
Marshall  called  the  American  empire.  Choice  in  some  cases,  the 
natural  gravitation  of  small  bodies  towards  large  ones  in  others,  the 
result  of  a  successful  war  in  still  others,  may  bring  about  conditions 
which  would  render  the  annexation  of  distant  possessions  desirable. 
If  those  possessions  are  inhabited  by  alien  races,  differing  from  us  in 
religion,  customs,  laws,  methods  of  taxation,  and  modes  of  thought, 
the  administration  of  government  and  justice,  according  to  Anglo- 
Saxon  principles,  may  for  a  time  be  impossible;  and  the  question  at 
once  arises  whether  large  concessions  ought  not  to  be  made  for  a 
time,  that  ultimately  our  own  theories  may  be  carried  out,  and  the 
blessings  of  a  free  government  under  the  Constitution  extended  to 
them.  We  decline  to  hold  that  there  is  anything  in  the  Constitution 
to  forbid  such  action. 

We  are  therefore  of  opinion  that  the  island  of  Porto  Rico  is  a 


DOWNES   V.    BIDWELL.  1149 

territory  appurtenant  and  belonging  to  the  United  States,  but  not  a 
part  of  the  United  States  -within  the  revenue  clauses  of  the  Consti- 
tution ;  that  tlie  Foraker  act  is  constitutional,  so  far  as  it  imposes 
duties  upon  imports  from  such  island,  and  that  the  plaintiff  cannot 
recover  back  the  duties  exacted  in  this  case. 

The  judgment  of  the  Circuit  Court  is  therefore  affirmed. 
•]Mr.  Justice  White,  with  whom  concurred  Mr.  Justice  Shiras 
and  ]\[r.  Justice  McKexna,  uniting  in  the  judgment  of  affirmance  : 

Mr.  Justice  Brown,  in  announcing  the  judgment  of  affirmance,  has 
in  his  opinion  stated  his  reasons  for  his  concurrence  in  such  judg- 
ment. In  the  result  I  likewise  concur.  As,  however,  the  reasons 
which  cause  me  to  do  so  are  different  from,  if  not  in  conflict  with,  those 
expressed  in  that  opinion,  if  its  meaning  is  by  me  not  misconceived, 
it  becomes  my  duty  to  state  the  convictions  which  control  me. 

The  recovery  sought  is  the  amount  of  duty  paid  on  merchandise 
which  came  into  the  United  States  from  Porto  Rico  after  July  1, 
1900.  The  exaction  was  made  in  virtue  of  the  act  of  Congress 
approved  April  12,  1900,  entitled  "  An  Act  Temporarily  to  Provide 
Revenue  and  a  Civil  Government  for  Porto  Rico,  and  for  Other  Pur- 
poses." 31  Stat.  77,  c.  191.  The  right  to  recover  is  predicated  on  the 
assumption  that  Porto  Rico,  by  the  ratification  of  the  treaty  with 
Spain,  became  incorporated  into  the  United  States,  and  therefore  the 
act  of  Congress  which  imposed  the  duty  in  question  is  repugnant  to 
Art.  I,  sec.  8,  clause  1,  of  the  Constitution  providing  that  "  The  Con- 
gress shall  have  power  to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  to  pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States  ;  but  all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the  United  States."  Subsidiar- 
ily, it  is  contended  that  the  duty  collected  was  also  repugnant  to  the 
export  and  preference  clauses  of  the  Constitution.  But  as  the  case 
concerns  no  duty  on  goods  going  from  the  United  States  to  Porto 
Rico,  this  proposition  must  depend  also  on  the  hypothesis  that  the 
provisions  of  the  Constitution  referred  to  apply  to  Porto  Rico  because 
that  island  has  been  incorporated  into  the  United  States.  It  is  hence 
manifest  that  this  latter  contention  is  involved  in  the  previous  one, 
and  need  not  be  separately  considered. 

The  arguments  at  bar  embrace  many  propositions  which  seem  to 
me  to  be  irrelevant,  or,  if  relevant,  to  be  so  contrary  to  reason  and  so 
in  conflict  with  previous  decisions  of  this  court  as  to  cause  them  to 
require  but  a  passing  notice.  To  eliminate  all  controversies  of  this 
character,  and  thus  to  come  to  the  pivotal  contentions  which  the  case 
involves,  let  me  state  and  concede  the  soundness  of  some  principles, 
referring,  in  doing  so,  in  the  margin  to  the  authorities  by  which  they 
are  sustained,  and  making  such  comment  on  some  of  them  as  may  to 
me  appear  necessary. 

First.  The  government  of  the  United  States  was  born  of  the  Con- 
stitution, and  all  powers  which   it  enjoys  or  may  exercise  must  be 


1150       ADDITIONAL    CASES    RELATING    TO    ANNEXATION    OF    TERRITORY. 

either  derived  expressly  or  by  implication  from  that  instrument. 
Even  then,  when  an  act  of  any  department  is  challenged  because  not 
warranted  by  the  Constitution,  the  existence  of  the  authority  is  to  be 
ascertained  by  determining  whether  the  power  has  been  conferred 
by  the  Constitution,  either  in  express  terms  or  by  lawful  implication,  to 
be  drawn  from  the  express  authority  conferred,  or  deduced  as  an  attri- 
bute which  legitimately  inheres  in  the  nature  of  the  powers  given, 
and  which  flows  from  the  character  of  the  government  established  by 
the  Constitution.  In  other  words,  while  confined  to  its  constitutional 
orbit,  the  government  of  the  United  States  is  supreme  within  its 
lawful  sphere.^ 

Second.  Every  function  of  the  government  being  thus  derived 
from  the  Constitution,  it  follows  that  that  instrument  is  everywhere 
and  at  all  times  potential  in  so  far  as  its  provisions  are  applicable.- 

Third.  Hence  it  is  that  wherever  a  power  is  given  by  the  Consti- 
tution, and  there  is  a  limitation  imposed  on  the  authority,  such 
restriction  operates  upon  and  confines  every  action  on  the  subject 
within  its  constitutional  limits.^ 

Fourth.  Consequently  it  is  impossible  to  conceive  that,  where  con- 
ditions are  brought  about  to  which  any  particular  provision  of  the 
Constitution  applies,  its  controlling  influence  may  be  frustrated  by 
the  action  of  any  or  all  of  the  departments  of  the  government.  Those 
departments,  when  discharging,  within  the  limits  of  their  constitu- 
tional power,  the  duties  which  rest  on  them,  may,  of  course,  deal  with 
the  subjects  committed  to  them  in  such  a  way  as  to  cause  the  matter 
dealt  with  to  come  under  the  control  of  provisions  of  the  Constitution 
which  may  not  have  been  previoush"  applicable.  But  this  dees  not 
conflict  with  the  doctrine  just  stated,  or  presuppose  that  the  Consti- 
tution may  or  may  not  be  applicable  at  the  election  of  any  agency  of 
the  government. 

Fifth.  The  Constitution  has  undoubtedly  conferred  on  Congress  the 
right  to  create  such  municipal  organizations  as  it  may  deem  best  for 
all  the  territories  of  the  United  States,  whether  they  have  been  incor- 
porated or  not,  to  give  to  the  inhabitants,  as  respects  the  local  govern- 
ments, such  degree  of  representation  as  may  be  conducive  to  the  public 
well-being,  to  deprive  such  territory  of  representative  government  if 
it  is  considered  just  to  do  so,  and  to  change  such  local  governments  at 
discretion.* 

1  Marbury  v.  Madison,  I  Cranch,  137,  176  et  seq ;  Martin  v.  Hnnther,  1  Wheat. 
304,  326  ;  New  Orleans  v.  United  States,  10  Pet.  662,  736  ;  Geofroy  v.  Riggs,  133  U.  S. 
258,266;  United  States  v.  Gettysburg  Electric  II.  Co.,  160  U.  S.668,  679,  and  cases 
cited. 

2  The  City  of  Panama,  101  U.  S.  453,  460;  Fong  Yue  Ting  v.  United  States,  149 
U.  S.  698,  716,  738. 

-  Monong.ahela  Nav.  Co.  ;•.  United  States,  148  U.  S.  312,336  ;  Interstate  Commerce 
Commission  v.  Brimson,  154  U.  S.  447,  479  ;  United  States  v.  Joint  Traffic  Asso.,  171 
U.  S.  505,  571. 

■*  United  States  v.  Kagama,  1 18  U.  S.  375,  378 ;  Shively  v.  Bowlby,  152  U.  S.  1,  48. 


DOWNES   V.   BIDWELL.  1151 

The  plenitude  of  the  power  of  Congress,  as  just  stated,  is  conceded 
by  both  sides  to  this  controversy.  It  has  been  manifest  from  the 
earliest  days,  and  so  many  examples  are  afforded  of  it,  that  to  refer  to 
them  seems  superfluous.  However,  there  is  an  instance  which  exem- 
plifies the  exercise  of  the  power  substantially  in  all  its  forms,  in  such 
an  apt  way  that  reference  is  made  to  it.  The  instance  referred  to  is 
the  District  of  Columbia,  which  has  had  from  the  beginning  different 
forms  of  government  conferred  upon  it  by  Congress,  some  largely 
representative,  others  only  partially  so,  until;  at  the  present  time,  the 
people  of  the  District  live  under  a  local  government  totally  devoid  of 
local  representation,  in  the  elective  sense,  administered  solely  by  offi- 
cers appointed  by  the  President,  Congress,  in  which  the  District  has 
no  representative  in  effect,  acting  as  the  local  legislature. 

In  some  adjudged  cases  the  power  to  locally  govern  at  discretion 
has  been  declared  to  arise  as  an  incident  to  the  right  to  acquire  terri- 
tory. In  others  it  has  been  rested  upon  the  clause  of  section  3,  Article 
IV,  of  the  Constitution,  which  vests  Congress  with  the  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  of  the  United  States.^  But  this  divergence, 
if  not  conflict  of  opinion,  does  not  imply  that  the  authority  of  Con- 
gress to  govern  the  territories  is  outside  of  the  Constitution,  since  in 
either  case  the  right  is  founded  on  the  Constitution,  although  referred 
to  different  provisions  of  that  instrument. 

While,  therefore,  there  is  no  express  or  implied  limitation  on  Con- 
gress in  exercising  its  power  to  create  local  governments  for  any  and 
all  of  the  territories,  by  which  that  body  is  restrained  from  the  widest 
latitude  of  discretion,  it  does  not  follow  that  there  may  not  be  inlier. 
ent,  although  unexpressed,  principles  which  are  the  basis  of  all  free 
government  which  cannot  be  with  impunity  transcended.^  But  this 
does  not  suggest  that  every  express  limitation  of  the  Constitution 
which  is  applicable  has  not  force,  but  only  signifies  that  even  in  cases 
where  there  is  no  direct  command  of  the  Constitution  which  applies, 
there  may,  nevertheless,  be  restrictions  of  so  fundamental  a  nature 
that  they  cannot  be  transgressed,  although  not  expressed  in  so  many 
words  in  the  Constitution. 

Sixth.  As  Congress  in  governing  the  territories  is  subject  to  the 
Constitution,  it  results  that  all  the  limitations  of  the  Constitution 
which  are  applicable  to  Congress  in  exercising  this  authority  neces- 
sarily limit  its  power  on  this  subject.  It  follows,  also,  that  every 
provision  of  the  Constitution  which  is  applicable  to  the  territories  is 

1  Sere  v.  Pitot,  6  Cranch,  332,  336  ;  McCulloch  v.  Maryland,  4  Wheat.  316,  421  ; 
American  Ins.  Co.  v.  Cauter,  1  I'et.  511,  .542;  United  States  v.  Gratiot,  14  Pet.  526, 
537;  Dred  Scott  v.  Saudford,  19  How.  393,  448;  Clinton  v.  En-jlebrecht,  13  Wall. 
434,447;  Hamilton  y.  Dillin,  21  Wall.  73,  93  ;  National  Bank  r.  County  of  Yankton, 
101  U.S.  129,  132;  The  City  of  Panama,  101  U.  S.  4.53,  457;  Murphy  v.  Kamsoy,  114 
U.  S.  15,  44  ;  United  States  v.  Kagama,  118  U.  S.  375,  380 ;  Mormon  Church  v.  United 
States,  136  U.  S.  1,42;  Boyd  ;;.  Thayer,  143  U.  S.  135,  169. 

2  Mormon  Chsrch  v.  United  States,  136  U.  S.  1,  44. 


1152       ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OP   TERRITORY. 

also  controlling  therein.  To  justify  a  departure  from  this  elementary 
principle  by  a  criticism  of  the  opinion  of  Mr.  Chief  Justice  Taney  in 
Scott  u.  Sandford,  19  How.  393,  appears  to  me  to  be  unwarranted. 
Whatever  may  be  the  view  entertained  of  the  correctness  of  the 
opinion  of  the  court  in  that  case,  in  so  far  as  it  interpreted  a  par- 
ticular provision  of  the  Constitution  concerning  slavery,  and  decided 
that  as  so  construed  it  was  in  force  in  the  territories,  this  in  no  v/ay 
affects  the  principle  which  that  decision  announced,  that  the  appli- 
cable provisions  of  the  Constitution  were  operative.  That  doctrine 
was  concurred  in  by  the  dissenting  judges,  as  the  following  excerpts 
demonstrate.  Thus,  Mr.  Justice  McLean,  in  the  course  of  his  dissent- 
ing opinion,  said  (19  How.  542)  : 

"In  organizing  the  government  of  a  territory,  Congress  is  limited 
to  means  appropriate  to  the  attainment  of  the  constitutional  object. 
No  powers  can  be  exercised  which  are  prohibited  by  the  Constitution, 
or  which  are  contrary  to  its  spirit." 

Mr.  Justice  Curtis,  also,  in  the  dissent  expressed  by  him,  said 
(p.  614)  : 

"  If,  then,  this  clause  does  contain  a  power  to  legislate  respecting 
the  territory,  what  are  the  limits  of  that  power? 

"To  this  I  answer  that,  in  common  with  all  the  other  legislative 
powers  of  Congress,  it  finds  limits  in  the  express  prohibitions  on  Con- 
gress not  to  do  certain  things;  that,  in  the  exercise  of  the  legislative 
power,  Congress  cannot  pass  an  ex  post  facto  law  or  bill  of  attainder ; 
and  so  in  respect  to  each  of  the  other  prohibitions  contained  in  the 
Constitution." 

Seventh.  In  the  case  of  the  territories,  as  in  every  other  instance, 
when  a  provision  of  the  Constitution,  is  invoked,  the  question  M'hich 
arises  is,  not  whether  the  Constitution  is  operative,  for  that  is  self- 
evident,  but  whether  the  provision  relied  on  is  applicable. 

Eighth.  As  Congress  derives  its  authority  to  levy  local  taxes  for 
local  purposes  within  the  territories,  not  from  the  general  grant  of 
power  to  tax  as  expressed  in  the  Constitution,  it  follows  that  its  right 
to  locally  tax  is  not  to  be  measured  by  the  provision  empowering 
Congress  "  to  lay  and  collect  taxes,  duties,  imposts,  and  excises,"  and 
is  not  restrained  by  the  requirement  of  uniformity  throughout  the 
United  States.  But  the  power  just  referred  to,  as  well  as  the  qualifi- 
cation of  uniformity,  restrains  Congress  from  imposing  an  impost 
duty  on  goods  coming  into  the  United  States  from  a  territory  which 
has  been  incorporated  into  and  forms  a  part  of  the  United  States. 
This  results  because  the  clause  of  the  Constitution  in  question  does 
not  confer  upon  Congress  power  to  impose  such  an  impost  duty  on 
goods  coming  from  one  part  of  the  United  States  to  another  part 
thereof,  and  such  duty,  besides,  would  be  repugnant  to  the  require- 
ment of  uniformity  throughout  the  United  States.^ 

1  Loughborough  y.  Blake,  .5  "Wheat.  317,322;  Woodruff  v.  Parham,  8  Wall.  123, 
133  ;  Brown  v.  Houston,  114  U.  S.  622,  628  ;  Fairbank  v.  United  States,  181  U.  S.283. 


DOWNES   V.    BIDWELL.  1153 

To  question  the  principle  above  stated  on  the  assumption  that  the 
rulings  on  this  subject  of  Mr.  Chief  Justice  Marshall  in  Loughborough 
v.  Blake  were  mere  dicta  seems  to  me  to  be  entirely  inadmissible. 
And,  besides,  if  such  view  was  justified,  the  principle  would  still  find 
support  in  the  decision  in  Woodruff  v.  Parham,  and  that  decision,  in 
this  regard,  was  affirmed  by  this  court  in  Brown  v.  Houston,  114  U.  S. 
622  [333],  and  Fairbank  v.  United  States,  l8l  U.  S.  283. 

From  these  conceded  propositions  it  follows  that  Congress  in  legis- 
lating for  Porto  Rico  was  only  empowered  to  act  within  the  Constitu- 
tion and  subject  to  its  applicable  limitations,  and  that  every  provision 
of  the  Constitution  which  applied  to  a  country  situated  as  was  that 
island  was  potential  in  Porto  Rico. 

And  the  determination  of  what  particular  provision  of  the  Consti- 
tution is  applicable,  generally  speaking,  in  all  cases,  involves  an  in- 
quiry into  the  situation  of  the  territory  and  its  relations  to  the  United 
States.  This  is  well  illustrated  by  some  of  the  decisions  of  this  court 
which  are  cited  in  the  margin.^  Some  of  these  decisions  hold  on  the 
one  hand  that,  growing  out  of  the  presumably  ephemeral  nature  of  a 
territorial  government,  the  provisions  of  the  Constitution  relating  to 
the  life  tenure  of  judges  is  inapplicable  to  courts  created  by  Congress 
even  in  territories  which  are  incorporated  into  the  United  States,  and 
some,  on  the  other  hand,  decide  that  the  provisions  as  to  common- 
law  juries  found  in  the  Constitution  are  applicable  under  like  con- 
ditions; that  is  to  say,  although  the  judge  presiding  over  a  jury  need 
not  have  the  constitutional  tenure,  yet  the  jury  must  be  in  accordance 
with  the  Constitution.  And  the  application  of  the  provision  of  the 
Constitution  relating  to  juries  has  been  also  considered  in  a  different 
aspect,  the  case  being  noted  in  the  margin.'^ 

The  question  involved  was  the  constitutionality  of  the  statutes  of 
the  United  States  conferring  power  on  ministers  and  consuls  to  try 
American  citizens  for  crimes  committed  in  certain  foreign  countries. 
Rev.  Stat.,  sees.  4083-4086.  The  court  held  the  provisions  in  question 
not  to  be  repugnant  to  the  Constitution,  and  that  a  conviction  for  a 
felony  without  a  previous  indictment  by  a  grand  jury,  or  the  sum- 
moning of  a  petty  jury,  was  valid. 

It  was  decided  that  the  provisions  of  the  Constitution  relating  to 
grand  and  petty  juries  were  inapplicable  to  consular  courts  exercising 
their  jurisdiction  in  certain  countries  foreign  to  the  United  States. 
But  this  did  not  import  that  the  government  of  the  United  States  in 
creating  and  conferring  jurisdiction  on  consuls  and  ministers  acted 

1  American  Ins.  Co.  v.  Canter,  1  Pet.  511  ;  Bonner  i'.  Porter,  9  How.  23.5  ;  Webster 
V.  Reid,  11  How.  4.37,  460;  Clinton  v.  En2;lebrecht,  13  Wall.  434;  Reynolds  v.  United 
States,  98  U.  S.  14.5  ;  Callan  v.  Wil.'^on,  127  U.  S.  540;  McAllister  v.  United  States. 
141  U.  S.  174  ;  SprinsviUe  v.  Thomas,  166  U.  S.  707  ;  Bauman  v.  lioss,  167  U.  S.  548 ; 
Thompson  v.  Utah,  170  U.  8.343  ;  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  ;  Black  v. 
Jackson,  177  U.  S.  349,  363. 

2  In  re  Ross,    140  U.  S.  453,  461,  462,  463. 

73 


1154      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

outside  of  the  Constitution,  since  it  was  expressly  held  that  the  power 
to  call  such  courts  into  being  and  to  confer  upon  them  the  right  to 
try,  iu  the  foreign  countries  in  question,  American  citizens,  was  de- 
ducible  from  the  treaty-making  power  as  conferred  by  the  Constitu- 
tion.    The  court  said  (p.  463): 

"  The  treaty-making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments.  It  can, 
equally  with  any  of  the  former  or  present  governments  of  Europe, 
make  treaties  providing  for  the  exercise  of  judicial  authority  in 
other  countries  by  its  officers  appointed  to  reside  therein." 

In  other  words,  the  case  concerned,  not  the  question  of  a  power 
outside  the  Constitution,  but  simply  whether  certain  provisions  of 
the  Constitution  were  applicable  to  the  authority  exercised  under  the 
circumstances  which  the  case  presented. 

Albeit,  as  a  general  rule,  the  status  of  a  particular  territory  has  to 
be  taken  in  view  when  the  applicability  of  any  provision  of  the 
Constitution  is  questioned,  it  does  not  follow,  when  the  Constitution 
has  absolutely  withheld  from  the  government  all  power  on  a  given 
subject,  that  such  an  inquiry  is  necessary.  Undoubtedly  there  are 
general  prohibitions  in  the  Constitution  in  favor  of  the  liberty  and 
property  of  the  citizen,  which  are  not  mere  regulations  as  to  the  form 
and  manner  in  which  a  conceded  power  may  be  exercised,  but  which 
are  an  absolute  denial  of  all  authority  under  any  circumstances  or 
conditions  to  do  particular  acts.  In  the  nature  of  things,  limitations 
of  this  character  cannot  be  under  any  circumstances  transcended, 
because  of  the  complete  absence  of  power. 

The  distinction  which  exists  between  the  two  characters  of  re- 
strictions —  those  which  regulate  a  granted  power  and  those  which 
withdraw  all  authority  on  a  particular  subject  —  has  in  effect  been 
always  conceded,  even  by  those  who  most  strenuously  insisted  on  the 
erroneous  principle  that  the  Constitution  did  not  apply  to  Congress 
in  legislating  for  the  territories,  and  was  not  operative  in  such 
districts  of  country.  No  one  had  more  broadly  asserted  this  prin- 
ciple than  Mr.  Webster.  Indeed,  the  support  which  that  proposition 
receives  from  expressions  of  that  illustrious  man  have  been  mainly 
relied  upon  to  sustain  it,  and  yet  there  can  be  no  doubt  that,  even 
while  insisting  upon  such  principle,  it  was  conceded  by  Mr.  Webster 
that  those  positive  prohibitions  of  the  Constitution  which  withhold 
all  power  on  a  particular  subject  were  always  applicable.  His  views 
of  the  principal  proposition  and  his  concession  as  to  the  existence  of 
the  qualification  are  clearly  shown  by  a  debate  which  took  place  in 
the  Senate  on  February  24,  1849,  on  an  amendment  offered  by  Mr. 
Walker  extending  the  Constitution  and  certain  laws  of  the  United 
States  over  California  and  New  Mexico.  Mr.  Webster,  in  support  of 
his  conception  that  the  Constitution  did  not,  generally  speaking, 
control  Congress  in  legislating  for  the  territories  or  operate  in  such 
districts,  said  as  follows  (20  Cong.  Globe,  App,  p.  272)  : 


DOWNES    V.    BIDWELL.  1155 

"  Mr.  President,  it  is  of  importance  that  we  should  seek  to  have 
clear  ideas  and  correct  notions  of  the  question  which  this  amendment 
of  the  member  from  Wisconsin  has  presented  to  us ;  and  especially 
that  we  should  seek  to  get  some  conception  of  what  is  meant  by  the 
proposition,  in  a  law,  to  'extend  the  Constitution  of  the  United 
States  to  the  territories.'  Why,  sir,  the  thing  is  utterly  impossible. 
All  the  legislation  in  tlie  world,  in  this  general  form,  could  not 
accomplish  it.  There  is  no  cause  for  the  operation  of  the  legislative 
power  in  such  a  matter  as  that.  The  Constitution,  what  is  it  —  we 
extend  the  Constitution  of  the  United  States  by  law  to  a  territory  ? 
What  is  the  Constitution  of  the  United  States  ?  Is  not  its  very  first 
principle  that  all  within  its  influence  and  comprehension  shall  be 
represented  in  the  legislature  which  it  establishes  with  not  only  the 
right  of  debate  and  the  right  to  vote  in  both  Houses  of  Congress,  but 
a  right  to  partake  in  the  choice  of  the  President  and  Vice-President? 
And  can  we  by  law  extend  these  rights,  or  any  of  them,  to  a  territory 
of  the  United  States  ?  Everybody  will  see  that  it  is  altogether 
impracticable." 

Thereupon,  the  following  colloquy  ensued  between  Mr.  Underwood 
and  Mr.  Webster  (Ibid.  281-282): 

"  Mr.  Underwood  :  '  The  learned  Senator  from  Massachusetts  says, 
and  says  most  appropriately  and  forcibly,  that  the  principles  of  the 
Constitution  are  obligatory  upon  us  even  while  legislating  for  the 
territories.  That  is  true,  I  admit,  in  its  fullest  force,  but  if  it  is 
obligatory  upon  us  while  legislating  for  the  territories,  is  it  possible 
that  it  will  not  be  equally  obligatory  upon  the  officers  who  are 
appointed  to  administer  the  laws  in  these  territories  ? ' 

"Mr.  Webster:  'I  never  said  it  was  not  obligatory  upon  them. 
What  I  said  was,  that  in  making  laws  for  these  territories  it  was  the 
high  duty  of  Congress  to  regard  those  great  principles  in  the  Consti- 
tution intended  for  the  security  of  personal  liberty  and  for  the 
security  of  property.' 

"  Mr.  Underwood :  *  .  .  .  Suppose  we  provide  by  our  legislation 
that  nobody  shall  be  appointed  to  an  office  there  who  professes  the 
Catholic  religion.     What  do  we  do  by  an  act  of  this  sort  ?' 

"Mr.  Webster:  'We  violate  the  Constitution,  which  says  that- no 
religious  test  shall  be  required  as  qualification  for  office.' " 

And  this  was  the  state  of  opinion  generally  prevailing  in  the  Free 
Soil  and  Republican  parties,  since  the  resistance  of  those  parties,  to 
the  extension  of  slavery  into  the  territories,  while  in  a  broad  sense 
predicated  on  the  proposition  that  the  Constitution  was  not  gen- 
erally controlling  in  the  territories,  was  sustained  by  express 
reliance  upon  the  Fifth  Amendment  to  the  Constitution  forbidding 
Congress  from  depriving  any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  Every  platform  adopted  by  those  par- 
ties down  to  and  including  18G0,  while  propounding  the  general 
doctrine,  also  in  effect  declared  the  rule  just  stated.     I  append  in 


1156       ADDITIONAL    CASES    RELATING    TO    ANNEXATION    OF    TERRITORY, 

the  margin  an  excerpt  from  the  phatform  of  the  Free  Soil  party 
adopted  in  1842.i 

The  conceptions  embodied  in  these  resolutions  were  in  almost 
identical  language  reiterated  in  the  platform  of  the  Liberty  party  in 
1843,  in  that  of  the  Free  Soil  party  in  1852,  and  in  the  platform  of 
the  Republican  party  in  1856.  Stanwood,  Hist,  of  Presidency,  pp. 
218,  253,  254,  and  271.  In  effect,  the  same  thought  was  repeated  in 
the  declaration  of  principles  made  by  the  Republican  party  con- 
vention in  18(30,  when  Mr.  Lincoln  was  nominated,  as  will  be  seen 
from  an  excerpt  therefrom  set  out  in  the  margin.^ 

The  doctrine  that  those  absolute  witlidrawals  of  power  which  the 
Constitution  has  made  in  favor  of  human  liberty  are  applicable  to 
every  condition  or  status  has  been  clearly  pointed  out  by  this  court  in 
Chicago,  R.  I.  &  P.  R.  Co.  v.  McGlinn,  (1885)  114  U.  S.  542,  where, 
speaking  through  ISlr.  Justice  Field,  the  court  said  (p.  54G) : 

"  It  is  a  general  rule  of  public  law,  recognized  and  acted  upon  by 
the  United  States,  that  whenever  political  jurisdiction  and  legislative 
power  over  any  territory  are  transferred  from  one  nation  or  sovereign 
to  another  the  municipal  laws  of  the  country  —  that  is,  laws  which 
are  intended  for  the  protection  of  private  rights  —  continue  in  force 
until  abrogated  or  changed  by  the  new  government  or  sovereign.  By 
the    cession,    public    property  passes    from    one    government  to    the 


1  Extract  from  the  Free  Soil  Party  Platform  of  1842  (Stanwood,  Hist,  of  Presi- 
dency, p.  240) : 

"  Resolved,  That  our  fathers  ordained  the  Constitution  of  the  United  States  in 
order,  among  otiier  great  national  objects,  to  establish  justice,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty,  but  expressly  denied  to  the  Federal 
government  which  they  created,  all  constitutional  power  to  deprive  any  person  of  life, 
liberty,  or  property  without  due  legal  process. 

"  Resoli-fd,  That,  in  tlie  judgment  of  this  convention.  Congress  has  no  more  power  to 
make  a  slave  than  to  make  a  king ;  no  more  power  to  institute  or  establish  slavery 
than  to  institute  or  establish  a  monarchy.  No  such  power  can  be  found  among  those 
specifically  conferred  by  the  Constitution,  or  derived  by  any  just  implication  from 
them. 

"  Resolved,  That  it  is  the  duty  of  the  Federal  government  to  relieve  itself  from  all 
responsibilitv  for  the  existence  or  continuance  of  slavery  wherever  the  government 
possesses  constitutional  authority  to  legislate  on  that  subject,  and  is  thus  responsible 
for  its  existence. 

"  Resolved,  That  the  true,  and  in  the  judgment  of  this  convention  the  only  safe, 
means  of  preventing  tlie  extension  of  slavery  into  territory  now  free,  is  to  prohibit  its 
existence  in  all  such  territory  by  an  act  of  Congress." 

2  Excerpt  from  declarations'  made  in  the  platform  of  the  Republican  Party  in 
1860  (Stanwood,  Hist,  of  Presidency,  p.  293) : 

"  8.  That  the  normal  condition  of  all  the  territory  of  the  United  States  is  that  of 
freedom  ;  that  as  our  republican  fathers,  when  they  had  abolished  slavery  in  all  our 
national  territory,  ordained  tliat  no  person  should  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law.  it  becomes  our  dutv,  by  legislation,  whenever 
such  legislation  is  necessary,  to  maintain  this  provision  of  the  Constitution  against  all 
attempts  to  violate  it ;  and  we  deny  the  authority  of  Congress,  of  a  territorial  legis- 
lature, or  of  any  individual,  to  give  legal  existence  to  slavery  in  any  territory  of  the 
United  States." 


DOWNES    V.    BIDWELL.  1157 

other,  but  private  property  remains  as  before,  and  with  it  those 
municipal  laws  which  are  designed  to  secure  its  peaceful  use  and 
enjoyment.  As  a  matter  of  course,  all  laws,  ordinances,  and  regula- 
tions in  conflict  with  the  political  character,  institutions,  and  consti- 
tution of  the  new  government  are  at  once  displaced.  Tluis,  upon  a 
cession  of  political  jurisdiction  and  legislative  power  —  and  the  latter 
is  involved  in  the  former  —  to  the  United  States,  the  laws  of  the 
country  in  support  of  an  established  religion,  or  abridging  the 
freedom  of  the  press,  or  authorizing  cruel  and  unusual  punishments, 
and  the  like,  would  at  once  cease  to  be  of  obligatory  force,  without 
any  declaration  to  that  effect ;  and  the  laws  of  the  country  on  other 
subjects  would  necessarily  be  superseded  by  existing  laws  of  the  new 
government  upon  the  same  matters.  But  with  respect  to  other  laws 
affecting  the  possession,  use  and  transfer  of  property,  aud  designed 
to  secure  good  order  and  peace  in  the  community,  and  promote  its 
health  and  prosperity,  which  are  strictly  of  a  municipal  character, 
the  rule  is  general  that  a  change  of  government  leaves  them  in  force 
until,  by  direct  action  of  the  new  government,  they  are  altered  or 
repealed.  American  Ins.  Co.  v.  Canter,  1  Pet.  542  [827] ;  Halleck, 
International  Law,  chap.  34,  '§  14." 

There  is  in  reason  then,  no  room  in  this  case  to  contend  that 
Congress  can  destroy  the  liberties  of  the  people  of  Porto  Rico  by 
exercising  in  their  regard  powers  against  freedom  and  justice  which 
the  Constitution  has  absolutely  denied.  There  can  also  be  no  con- 
troversy as  to  the  right  of  Congress  to  locally  govern  the  island  of 
Porto  Eico  as  its  wisdom  may  decide,  and  in  so  doing  to  accord  only 
such  degree  of  representative  government  as  may  be  determined  on 
by  that  body.  There  can  also  be  no  contention  as  to  the  authority 
of  Congress  to  levy  such  local  taxes  in  Porto  Rico  as  it  may  choose, 
even  although  the  amount  of  the  local  burden  so  levied  be  manifold 
more  onerous  than  is  the  duty  with  which  this  case  is  concerned. 
But  as  the  duty  in  question  was  not  a  local  tax,  since  it  was  levied  in 
the  United  States  on  goods  coming  from  Porto  Rico,  it  follows  that, 
if  that  island  was  a  part  of  the  United  States,  the  duty  was  repug- 
nant to  the  Constitution,  since  the  authority  to  levy  an  impost  duty 
conferred  by  the  Constitution  on  Congress  does  not,  as  I  have  con- 
ceded, include  the  right  to  lay  such  a  burden  on  goods  coming  from 
one  to  another  part  of  the  United  States.  And,  besides,  if  Porto  Rico 
was  a  part  of  the  United  States  the  exaction  was  repugnant  to  the 
uniformity  clause. 

The  sole  and  only  issue,  then,  is  not  whether  Congress  has  taxed 
Porto  Rico  without  representation  —  for,  whether  the  tax  was  local 
or  national,  it  could  have  been  imposed  although  Porto  Rico  had  no 
representative  local  government  and  was  not  represented  in  Congress 

but  is  whether  the  particular  tax  in  question  was  levied  in  such 

form  as  to  cause  it  to  be  repugnant  to  the  Constitution.      This  is 
to  be  resolved   by  answering  the    inquiry,  Had  Porto  Rico,  at  the 


1158      ADDITIONAL   CASES  RELATING   TO    ANNEXATION   OF   TERRITORY. 


time  of  the  passage  of  the  act  in  question,  been  incorporated  into 
and  become  an  integral  part  of  the  United  States  ? 

On  the  one  hand,  it  is  affirmed  that,  although  Porto  Eico  had  been 
ceded  by  the  treaty  with  Spain  to  the  United  States,  the  cession  was 
accompanied  by  such  conditions  as  prevented  that  island  from  be- 
coming an  integral  part  of  the  United  States,  at  least  temporarily 
and  until  Congress  had  so  determined.  On  the  other  hand,  it  is 
insisted  that  by  the  fact  of  cession  to  the  United  States  alone,  irre- 
spective of  any  conditions  found  in  the  treaty,  Porto  Eico  became  a 
part  of  the  United  States  and  was  incorporated  into  it.  It  is  incom- 
patible with  the  Constitution,  it  is  argued,  for  the  government  of  the 
United  States  to  accept  a  cession  of  territory  from  a  foreign  country 
without  complete  incorporation  following  as  an  immediate  result, 
and  therefore  it  is  contended  that  it  is  immaterial  to  inquire  what 
were  the  conditions  of  the  cession,  since  if  there  were  any  which 
were  intended  to  prevent  incorporation  they  were  repugnant  to 
the  Constitution  and  void.  The  result  of  the  argument  is  that  the 
government  of  the  United  States  is  absolutely  without  power  to 
acquire  and  hold  territory  as  property  or  as  appurtenant  to  the 
United  States.  These  conflicting  contentions  are  asserted  to  be 
sanctioned  by  many  adjudications  of  this  court  and  by  various  acts  of 
the  executive  and  legislative  branches  of  the  government ;  both  sides, 
in  many  instances,  referring  to  the  same  decisions  and  to  the  like 
acts,  but  deducing  contrary  conclusions  from  them.  From  this  it 
comes  to  pass  that  it  will  be  impossible  to  weigh  the  authorities 
relied  upon  without  ascertaining  the  subject-matter  to  which  they 
refer,  in  order  to  determine  their  proper  influence.  For  this  reason, 
in  the  orderly  discussion  of  the  controversy,  I  propose  to  consider 
the  subject  from  the  Constitution  itself,  as  a  matter  of  first  im- 
pression, from  that  instrument  as  illustrated  by  the  history  of  the 
government,  and  as  construed  by  the  previous  decisions  of  this  court. 
By  this  process,  if  accurately  carried  out,  it  will  follow  that  the  true 
solution  of  the  question  will  be  ascertained,  both  deductively  and  in- 
ductively, and  the  result,  besides,  will  be  adequately  proven. 

It  may  not  be  doubted  that  by  the  general  principles  of  the  law 
of  nations  every  government  which  is  sovereign  within  its  sphere 
of  action  possesses  as  an  inhei'ent  attribute  the  power  to  acquire  ter- 
ritory by  discovery,  by  agreement  or  treaty,  and  by  conquest.  It 
cannot  also  be  gainsaid  that,  as  a  general  rule,  wherever  a  govern- 
ment acquires  territory  as  a  result  of  any  of  the  modes  above  stated, 
the  relation  of  the  territory  to  the  new  government  is  to  be  deter- 
mined by  the  acquiring  power  in  the  absence  of  stipulations  upon  the 
subject.  These  general  principles  of  the  law  of  nations  are  thus 
stated  by  Halleck  in  his  treatise  on  International  Law,  page  126 : 

"  A  State  may  acquire  property  or  domain  in  various  ways ;  its 
title  may  be  acquired  originally  b}^  mere  occupancy,  and  confirmed 
by  the  presumption  arising  from  the  lapse  of  time  ;  or  by  discov- 


DOWNES   V.    BIDWELL.  1159 

ery  and  lawful  possession;  or  by  conquest,  confirmed  by  treaty  or 
tacit  consent ;  or  by  grant,  cession,  purchase  or  exchange  ;  in  fine,  by 
any  of  the  recognized  modes  by  which  private  property  is  acquired 
by  individuals.  It  is  not  our  object  to  enter  into  any  general  discus- 
sion of  these  several  modes  of  acquisition,  any  further  than  may  be 
necessary  to  distinguish  the  character  of  certain  rights  of  prop- 
erty which  are  the  peculiar  objects  of  international  jurisprudence. 
Wheaton,  International  Law,  pt.  2,  chap.  4,  §§  1,  4,  5;  1  Phillimore, 
International  Law,  §§  221-277;  Grotius,  de  Jur.  Bel.  ac  Pac,  lib.  2, 
chap.  4;  Vattel,  Droit  des  Gens,  liv.  2,  chaps.  7  and  11;  Eutherford, 
Inst.  b.  1,  chap.  3,  b.  2,  chap.  9 ;  Puffendorf,  de  Jur.  Nat,  et  Gent., 
lib.  4,  chaps.  4-6;  Moser,  Versuch,  etc.,  b.  5,  chap.  9 ;  Martens  Precis 
du  Droit  des  Gens,  §§  35  et  seq. ;  Schmaltz,  Droit  des  Gens,  liv.  4, 
chap.  1 ;  Kluber,  Droit  des  Gens,  §§  125,  126 ;  Heffter,  Droit  Inter- 
national, §  76  ;  Ortolan,  Domaine  International,  §§  53  et  seq.;  Bowyer, 
Universal  Public  Law,  chap.  28 ;  Bello,  Derecho  Internacioual,  pt.  1, 
chap.  4;  Biquelme,  Derecho,  Pub.  Int.,  lib.  1,  title  1,  chap.  2;  Bur- 
lamaqui,  Droit  de  la  Nat.  et  des  Gens,  tome  4,  pt.  3,  chap.  5." 

Speaking  of  a  change  of  sovereignty,  Halleck  says  (pp.  76,  418) : 
'■'■  Chap.  Ill,  §  23.  The  sovereignty  of  a  State  may  be  lost  in  various 
ways.  It  may  be  vanquished  by  a  foreign  power,  and  become  incor- 
porated into  the  conquering  State  as  a  province  or  as  one  of  its  com- 
ponent parts;  or  it  may  voluntarily  unite  itself  with  another  in  such 
a  way  that  its  independent  existence  as  a  State  will  entirely  cease. 


"  Chap.  XXX,  §  3.  If  the  hostile  nation  be  subdued  and  the  entire 
State  conquered,  a  question  arises  as  to  the  manner  in  which  the  con- 
queror may  treat  it  without  transgressing  the  just  bounds  established 
by  the  rights  of  conquest.  If  he  simply  replaces  the  former  sove- 
reign, and,  on  the  submission  of  the  people,  governs  them  accord- 
ing to  the  laws  of  the  State,  they  can  have  no  cause  of  complaint. 
Again,  if  he  incorporate  them  with  his  former  states,  giving  to  them 
the  rights,  privileges,  and  immunities  of  his  own  subjects,  he  does 
for  them  all  that  is  due  from  a  humane  and  equitable  conqueror  to 
his  vanquished  foes.  But  if  the  conquered  are  a  fierce,  savage,  and 
restless  people,  he  may,  according  to  the  degree  of  their  indocility, 
govern  them  with  a  tighter  rein,  so  as  to  curb  their  '  in)petuosity, 
and  to  keep  them  under  subjection.'  Moreover,  the  rights  of  con- 
quest may,  in  certain  cases,  justify  him  in  imposing  a  tribute  or 
other  burthen,  either  a  compensation  for  the  expenses  of  the  war  or 
as  a  punishment  for  the  injustice  he  has  suffered  from  them.  ,  .  . 
Vattel,  Droit  des  Gens,  liv.  3,  ch.  13,  §  201 ;  Curtis,  History,  etc., 
liv.  7,  cap.  8 ;  Grotius,  de  Jur.  Bel.  ac  Pac.  lib.  3,  caps.  8,  15 ;  Puf- 
fendorf, de  Jur.  Nat.  et  Gent.,  lib.  8,  cap.  6,  §  24 ;  Real,  Science  du 
Gouvernement,  tome  5,  ch.  2,  §  5  ;  Heffter,  Droit  International,  §  124  ; 
Abegg,  Untersuchungen,  etc.,  p.  86." 


1160      ADDITIONAL   CASES   RELATING   TO  ANNEXATION    OF   TERRITORY. 


In  American  Ins.  Co.  v.  Canter,  1  Pet.  511  [827],  the  general  doc- 
trine was  thus  summarized  in  the  opinion  delivered  by  ]\[r.  Chief 
Justice  Marshall  (p.  512)  : 

"  If  it  [conquered  territory]  be  ceded  by  the  treaty,  the  acquisition 
is  confirmed,  and  the  ceded  territory  becomes  a  part  of  the  nation  to 
which  it  is  annexed,  either  on  the  terms  stipulated  in  the  treaty  of 
cession  or  on  such  as  its  new  master  shall  impose.'' 

When  our  forefathers  threw  off  their  allegiance  to  Great  Britain 
and  established  a  republican  government,  assuredly  they  deemed  that 
the  nation  which  they  called  into  being  was  endowed  with  those  gen- 
eral powers  to  acquire  territory  which  all  independent  governments 
in  virtue  of  their  sovereignty  enjoyed.  This  is  demonstrated  by  the 
concluding  paragraph  of  the  Declaration  of  Independence,  which 
reads  as  follows : 

"  As  free  and  independent  States,  they  [the  United  States  of 
America]  have  full  power  to  levy  war,  conclude  peace,  contract  alli- 
ances, establish  commerce,  and  to  do  all  other  acts  and  things  which, 
independent  States  may  of  right  do." 

That  under  the  Confederation  it  was  considered  that  the  govern- 
ment of  the  United  States  had  authority  to  acquire  territory  like  any 
other  sovereignty  is  clearly  established  by  the  eleventh  of  the  Articles 
of  Confederation. 

The  decisions  of  this  court  leave  no  room  for  question  that,  under 
the  Constitution,  the  government  of  the  United  States,  in  virtue  of 
its  sovereignty,  supreme  within  the  sphere  of  its  delegated  power, 
has  the  full  right  to  acquire  territory  enjoyed  by  every  other  sove- 
reign nation. 

In  American  Ins.  Co.  v.  Canter,  1  Pet.  511  [827],  the  court,  by 
Mr.  Chief  Justice  Marshall,  said  (p.  542) : 

"The  Constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties  ;  conse- 
quently, that  government  possesses  the  power  of  acquiring  territory, 
either  by  conquest  or  by  treaty." 

In  United  States  v.  Huckabee,  (1872)  16  Wall.  414,  the  court,  speak- 
ing through  Mr.  Justice  Clifford,  said  (p.  434)  : 

"  Power  to  acquire  territory  either  by  conquest  or  treaty  is  vested 
by  the  Constitution  in  the  United  States.  Conquered  territory, 
however,  is  usually  held  as  a  mere  militaiy  occupation  until  the  fate 
of  the  nation  from  which  it  is  conquered  is  determined ;  but  if  the 
nation  is  entirely  subdued,  or  in  case  it  be  destroyed  and  ceases  to 
exist,  the  right  of  occupation  becomes  permanent,  and  the  title  vests 
absolutely  in  the  conqueror.  American  Ins.  Co.  v.  Canter,  1  Pet. 
511  [827];  Hogsheads  of  Sugar  v.  Boyle,  9  Cranch,  195;  Shanks 
V.  Dupont,  3  Pet.  246;  United  States  v.  Rice,  4  Wheat.  254;  The 
Amy  Warwick,  2  Sprague,  143 ;  Johnson  v.  M'Intosh,  8  Wheat.  588. 
Complete  conquest,  by  whatever  mode  it  may  be  perfected,  carries 
with  it  all  the  rights  of  the  former  government ;  or,  in  other  words, 


DOWNES   V.   BIDWELL.  1161 

the  conqueror,  by  the  completion  of  his  conquest,  becomes  the  abso- 
lute owner  of  the  property  conquered  from  the  enemy  nation  or 
State.  His  rights  are  no  longer  limited  to  mere  occupation  of  what 
he  has  taken  into  his  actual  possession,  but  they  extend  to  all  the 
property  and  rights  of  the  conquered  State,  including  even  debts  as 
well  as  personal  and  real  property,  Halleck,  International  Law,  839  ; 
Elphinstone  v.  Bedreechund,  1  Knapp's  Privy  Council  Cases,  329; 
Vattel,  365;  3  Phillimore,  International  Law,  505." 

In  Mormon  Church  v.  United  States,  (1889)  136  U.  S.  1  [835], 
Mr.  Justice  Bradley,  announcing  the  opinion  of  the  court,  declared 
(p.  42) : 

*'  The  power  to  acquire  territory,  other  tlian  the  territory  north- 
west of  the  Ohio  River  (which  belonged  to  the  United  States  at  the 
adoption  of  the  Constitution),  is  derived  from  the  treaty-making 
j)0wer  and  the  power  to  declare  and  carry  on  war.  The  incidents  of 
these  powers  are  those  of  national  sovereignty,  and  belong  to  all  in- 
dependent governments.  The  power  to  make  acquisitions  of  terri- 
tory by  conquest,  by  treaty,  and  by  cession  is  an  incident  of  national 
sovereignty.  The  Territory  of  Louisiana,  when  acquired  from  France, 
and  the  territories  west  of  the  Rocky  Mountains,  when  acquired  from 
]\Iexico,  became  the  absolute  property  and  domain  of  the  United 
States,  subject  to  such  conditions  as  the  government,  in  its  diplomatic 
negotiations,  had  seen  fit  to  accept  relating  to  the  rights  of  the  peo- 
ple then  inhabiting  those  territories," 

Indeed,  it  is  superfluous  to  cite  authorities  establishing  the  right  of 
the  government  of  the  United  States  to  acquire  territory,  in  view  of 
the  possession  of  the  Northwest  Territory  when  the  Constitution  was 
framed  and  the  cessions  to  the  general  government  by  various  States 
subsequent  to  the  adoption  of  the  Constitution,  and  in  view  also  of 
the  vast  extension  of  the  territory  of  the  United  States  brought 
about  since  the  existence  of  the  Constitution  by  substantially  every 
form  of  acquisition  known  to  the  law  of  nations.  Thus,  in  part  at 
least,  "  the  title  of  the  United  States  to  Oregon  was  founded  upon 
original  discovery  and  actual  settlement  by  citizens  of  the  United 
States,  authorized  or  approved  by  the  government  of  the  United 
States."  Shively  v.  Bowlby,  152  U.  S.  50.  The  Province  of  Louisi- 
ana was  ceded  by  France  in  1803 ;  the  Floridas  were  transferred  by 
Spain  in  1819 ;  Texas  was  admitted  into  the  Union  by  compact  with 
Congress  in  1845 ;  California  and  New  Mexico  were  acquired  by  the 
treaty  with  Mexico  of  1848,  and  other  western  territory  from  Mexico 
by  the  treaty  of  1853  ;  numerous  islands  have  been  brought  within 
the  dominion  of  the  United  States  under  the  authority  of  the  act  of 
August  18,  1856,  chap.  164,  usually  designated  as  the  Guano  Islands 
act,  re-enacted  in  Revised  Statutes,  §§  5570-5578;  Alaska  was  ceded 
by  Russia  in  1867;  Medway  island,  the  western  end  of  the  Hawaiian 
group,  1,200  miles  from  Honolulu,  was  acquired  in  1867,  and  -^50.000 
was  expended  in  efforts  to  make  it  a  naval  station  ;  on  the  renewal 


1162      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OF   TERRITORY. 

of  a  treaty  with  Hawaii,  November  9,  1887,  Pearl  harbor  was  leased 
for  a  permanent  naval  station;  by  joint  resolution  of  Congress  the 
Hawaiian  Islands  came  under  the  sovereignty  of  the  United  States  in 
1898 ;  and  on  April  30,  1900,  an  act  for  the  government  of  Hawaii 
was  approved,  by  which  the  Hawaiian  Islands  were  given  the  status 
of  an  incorporated  territory  ;  on  May  21, 1890,  there  was  proclaimed  by 
the  President  an  agreement,  concluded  and  signed  with  Germany  and 
Great  Britain,  for  the  joint  administration  of  the  Samoan  Islands  (26 
Stat.  1497) ;  and  on  February  16,  1900  (31  Stat.  69)  there  was  pro- 
claimed a  convention  between  the  United  States,  Germany,  and  Great 
Britain,  by  which  Germany  and  Great  Britain  renounced  in  favor  of 
the  United  States  all  their  rights  and  claims  over  and  in  respect  to 
the  island  of  Tutuilla  and  all  other  islands  of  the  Samoan  group  east 
of  longitude  171°  west  of  Greenwich.  And  finally  the  treaty  with 
Spain  which  terminated  the  recent  war  was  ratified. 

It  is  worthy  of  remark  that,  beginning  in  the  administration  of 
President  Jefferson,  the  acquisition  of  foreign  territory  above  re- 
ferred to  were  largely  made  whilst  that  political  party  was  in  power 
which  announced  as  its  fundamental  tenet  the  duty  of  strictly  con- 
struing the  Constitution,  and  it  is  true  to  say  that  all  shades  of  polit- 
ical opinion  have  admitted  the  power  to  acquire,  and  lent  their  aid  to 
its  accomplishment.  And  the  power  has  been  asserted  in  instances 
where  it  has  not  been  exercised.  Thus,  during  the  administration  of 
President  Pierce,  in  1854,  a  draft  of  a  treaty  for  the  annexation  of 
Hawaii  was  agreed  upon,  but,  owing  to  the  death  of  the  King  of  the 
Hawaiian  Islands,  was  not  executed.  The  second  article  of  the -pro- 
posed treaty  provided  as  follows  (Ex.  Doc.  Senate,  55th  Congress,  2d 
sess.,  Report  No.  681,  Calendar  No.  747,  p.  91): 


"Article  II. 

"  The  Kingdom  of  the  Hawaiian  Islands  shall  be  incorporated  into 
the  American  Union  as  a  State,  enjoying  the  same  degree  of  sove- 
reignty as  other  states,  and  admitted  as  such  as  soon  as  it  can  be 
done  in  consistency  with  the  principles  and  requirements  of  the  Fed- 
eral Constitution,  to  all  the  rights,  privileges,  and  immunities  of  a 
State  as  aforesaid,  on  a  perfect  equality  with  the  other  States  of  the 
Union." 

It  is  insisted,  however,  that,  conceding  the  right  of  the  government 
of  the  United  States  to  acquire  territory,  as  all  such  territory  when  ac- 
quired becomes  absolutely  incorporated  into  the  United  States,  every 
provision  of  the  Constitution  which  would  apply  under  that  situation 
is  controlling  in  such  acquired  territory.  This,  however,  is  but  to 
admit  the  power  to  acquire,  and  immediately  to  deny  its  beneficial 
existence. 

The  general  principle  of  the  law  of  nations,  already  stated,  is  that 
acquired  territory,  in  the  absence  of  agreement  to  the  contrary,  will 
bear  such  relation  to  the  acquiring  government  as  may  be  by  it  deter- 


DOWNES   V.   BIDWELL.  1163 

mined.  To  concede  to  the  government  of  the  United  States  the  right 
to  acquire,  and  to  strip  it  of  all  power  to  protect  the  birthright  of  its 
own  citizens  and  to  provide  for  the  well  being  of  the  acquired  terri- 
tory by  such  enactments  as  may  in  view  of  its  condition  be  essential, 
is,  in  effect,  to  say  that  the  United  States  is  helpless  in  the  family  of 
nations  and  does  not  possess  that  authority  which  has  at  all  times 
been  treated  as  an  incident  of  the  right  to  acquire.  Let  me  illustrate 
the  accuracy  of  this  statement.  Take  a  case  of  discovery.  Citizens 
of  the  United  States  discover  an  unknown  island,  peopled  with  an 
uncivilized  race,  yet  rich  in  soil,  and  valuable  to  the  United  States 
for  commercial  and  strategic  reasons.  Clearly,  by  the  law  of  nations, 
the  right  to  ratify  such  acquisition  and  thus  to  acquire  the  territory 
would  pertain  to  the  government  of  the  United  States.  Johnson  v. 
M'Intosh,  8  Wheat.  543,  595 ;  Martin  v.  Waddell,  16  Pet.  367,  409 ; 
Jones  V.  United  States,  137  U.  S.  202  [590],  212  ;  Shively  v.  Bowlby, 
152  U.  S.  1,  50.  Can  it  be  denied  that  such  right  could  not  be  prac- 
tically exercised  if  the  result  would  be  to  endow  the  inhabitants  with 
citizenship  of  the  United  States  and  to  subject  them,  not  only  to 
local,  but  also  to^an  equal  proportion  of  national  taxes,  even  although 
the  consequence  would  be  to  entail  ruin  on  the  discovered  territory, 
and  to  inflict  grave  detriment  on  the  United  States,  to  arise  boih 
from  the  dislocation  of  its  fiscal  system  and  the  immediate  bestowal 
of  citizenship  on  those  absolutely  unfit  to  receive  it  ? 

The  practice  of  the  government  has  been  otherwise.  As  early  as 
1856  Congress  enacted  the  Guano  Islands  act,  heretofore  referred  to, 
which  by  section  1  provided  that  when  any  citizen  of  the  United 
States  shall  '-'discover  a  deposit  of  guano  on  any  island,  rock,  or  key 
not  within  the  lawful  jurisdiction  of  any  other  government,  and  not 
occupied  by  the  citizens  of  any  other  government,  and  shall  take 
peaceable  possession  thereof,  and  occupy  the  same,  said  island,  rock, 
or  key  may,  at  the  discretion  of  the  President  of  the  United  States, 
be  considered  as  appertaining  to  the  United  States."  11  Stat. 
119,  chap.  164;  Rev.  Stat.  §  5570.  Under  the  act  referred  to,  it  was 
stated  in  argument,  that  the  government  now  holds  and  protects 
American  citizens  in  the  occupation  of  some  seventy  islands.  The 
statute  came  under  consideration  in  Jones  v.  United  States,  137  U.  S. 
202  [590],  where  the  question  was  whether  or  not  the  act  was  valid, 
and  it  was  decided  that  the  act  was  a  lawful  exercise  of  power,  and 
that  islands  thus  acquired  were  "appurtenant"  to  the  United  States. 
The  court,  in  the  course  of  the  opinion,  speaking  through  j\Ir.  Justice 
Gray,  said  (p.  212) : 

"By  the  law  of  nations,  recognized  by  all  civilized  states,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  or  conquest;  and  when  citizens  or  subjects  of  one 
nation,  in  its  name  and  by  its  authority  or  with  its  assent,  take  and 
hold  actual,  continuous,  and  useful  possession  (although  only  for  the 
purpose  of  carrying  on  a  particular  business,  such  as  catching  and 


1164      ADDITIONAL    CASES    RELATING    TO    ANNEXATION    OF    TERRITORY. 


curing  fish  or  working  mines)  of  territory  unoccupied  by  any  other 
government  or  its  citizens,  the  nation  to  which  they  belong  may  ex- 
ercise such  jurisdiction  and  for  such  period  as  it  sees  fit  over  territory 
so  acquired.  This  principle  affords  ample  warrant  for  the  legislation 
of  Congress  concerning  guano  islands.  Vattel,  lib.  1,  chap.  18; 
Wheaton,  International  Law,  8th  ed.  §§  161,  165,  176,  note  104; 
Halleck,  International  Law,  chap.  6,  §§  7,  15;  1  Phillimore,  Inter- 
national Law,  3d  ed.  §§  227,  229,  230,  242;  1  Calvo,  Droit  Inter- 
national, 4th  ed.  §§  266,  277,  300;  Whiton  v.  Albany  County  Ins. 
Co.,  109  Mass.  24,  31." 

And  these  considerations  concerning  discovery  are  equally  appli- 
cable to  ownership  resulting  from  conquest.  A  just  war  is  declared, 
and  in  its  prosecution  the  territory  of  the  enemy  is  invaded  and  occu- 
pied. Would  not  the  war,  even  if  waged  successfully,  be  fraught 
with  danger  if  the  effect  of  occupation  was  to  necessarily  incorporate 
an  alien  and  hostile  people  into  tlie  United  States?  Take  another 
illustration.  Suppose  at  the  termination  of  a  war  the  hostile  govern- 
ment had  been  overthrown,  and  the  entire  territory  or  a  portion 
thereof  was  occupied  by  the  United  States,  and  there  was  no  govern- 
ment to  treat  with  or  none  willing  to  cede  by  treaty,  and  thus  it 
became  necessary  for  the  United  States  to  hold  the  conquered  country 
for  an  indefinite  period,  or  at  least  until  such  time  as  Congress  deemed 
that  it  should  be  either  released  or  retained  because  it  was  apt  for 
incorporation  into  the  United  States.  If  holding  was  to  have  the 
effect  which  is  now  claimed  for  it,  would  not  the  exercise  of  judg- 
ment respecting  the  retention  be  so  fraught  with  danger  to  the 
American  people  that  it  could  not  be  safely  exercised? 

Yet  again.  Suppose  the  United  States,  in  consequence  of  outrages 
perpetrated  upon  its  citizens,  was  obliged  to  move  its  armies  or  send 
its  fleets  to  obtain  redress,  and  it  came  to  pass  that  an  expensive  war 
resulted  and  culminated  in  the  occupation  of  a  portion  of  the  territory 
of  the  enemy,  and  that  the  retention  of  such  territory  —  an  event 
illustrated  by  examples  in  history  —  could  alone  enable  the  United 
States  to  recover  the  pecuniary  loss  it  had  suffered.  And  suppose, 
further,  that  to  do  so  would  require  occupation  for  an  indefinite 
period,  dependent  upon  whether  or  not  payment  was  made  of  the 
required  indemnity.  It  being  true  that  incorporation  must  neces- 
sarily follow  the  retention  of  the  territory,  it  would  result  that  the 
United  States  must  abandon  all  hope  of  recouping  itself  for  the  loss 
suffered  by  the  unjust  war,  and  hence  the  whole  burden  would  be 
entailed  upon  the  people  of  the  United  States.  This  would  be  a 
necessary  consequence,  because  if  the  United  States  did  not  hold  the 
territory  as  security  for  the  needed  indemnity  it  could  not  collect 
such  indemnity,  and,  on  the  other  hand,  if  incorporation  must  follow 
from  holding  the  territory  the  uniformity  provision  of  the  Constitu- 
tion would  prevent  the  assessment  of  the  cost  of  the  war  solely  upon 
the  newly  acquired  country.     In  this,  as  in  the  case  of  discovery,  the 


DOWNES   V.    BIDWELL.  1165 

traditions  and  practices  of  the  government  demonstrate  the  iinsound- 
ness  of  the  contention.  Congress,  on  jNIay  13,  1846,  declared  that  war 
existed  with  Mexico.  In  the  summer  of  that  year  New  Mexico  and 
California  were  subdued  by  the  American  arms,  and  the  military 
occupation  which  followed  continued  until  after  the  treaty  of  peace 
was  ratified,  in  May,  1848.  Tampico,  a  Mexican  port,  was  occupied 
by  our  forces  on  November  15,  1846,  and  possession  was  not  surren- 
dered until  after  the  ratification.  In  the  spring  of  1847  President 
Polk,  through  the  Secretary  of  the  Treasury,  prepared  a  tariff  of 
duties  on  imports  and  tonnage  which  was  put  in  force  in  the  con- 
quered country.  1  Senate  Documents,  First  Session,  30th  Congress, 
pp.  562,  569.  By  this  tariff,  duties  ivere  laid  as  well  on  merchandise, 
exported  from  the  United  States  as  from  other  countries,  except  as 
to  supplies  for  our  army,  and  on  INIay  10,  1847,  an  exemption  from 
tonnage  duties  was  accorded  to  "all  vessels  chartered  by  the  United 
States  to  convey  supplies  of  any  and  all  descriptions  to  our  army  and 
navy,  and  actually  laden  with  supplies."  Rid.  583.  An  interesting 
debate  respecting  the  constitutionality  of  this  action  of  the  President 
is  contained  in  18  Cong.  Globe,  First  Session,  30th  Congress,  at  pp. 
478,  479,  484-489,  495,  498,  etc. 

In  Fleming  v.  Page,  9  How.  603,  it  was  held  that  the  revenue 
officials  properly  treated  Tampico  as  a  port  of  a  foreign  country 
during  the  occupation  by  the  military  forces  of  the  Uniteil  States, 
and  that  duties  on  imports  into  the  United  States  from  Tampico 
were  lawfully  levied  under  the  general  tariff  act  of  1846.  Thus, 
although  Tampico  was  in  the  possession  of  the  United  States,  and 
the  court  expressly  held  that  in  an  international  sense  the  port  was 
a  part  of  the  territory  of  the  United  States,  yet  it  was  decided  that 
in  the  sense  of  the  revenue  laws  Tampico  was  a  foreign  country. 
The  special  tariff  act  promulgated  by  President  Polk  was  in  force  in 
New  Mexico  and  California  until  after  notice  was  received  of  the 
ratification  of  the  treaty  of  peace.  In  Cross  v.  Harrison,  16  How. 
164,  certain  collections  of  impost  duties  on  goods  brought  from  for- 
eign countries  into  California  prior  to  the  time  when  official  notifica- 
tion had  been  received  in  California  that  the  treaty  of  cession  had  been 
ratified,  as  well  as  impost  duties  levied  after  the  receipt  of  such  notice, 
were  called  in  question.  The  duties  collected  prior  to  the  receipt  of 
notice  were  laid  at  the  rate  fixed  by  the  tariff  promulgated  by  the 
President;  those  laid  after  the  notification  conformed  to  the  general 
tariff  laws  of  the  United  States.  The  court  decided  that  all  the 
duties  collected  were  valid.  The  court  undoubtedly  in  the  course  of 
its  opinion  said  that  immediately  upon  the  ratification  of  the  treaty 
California  became  a  part  of  the  United  States  and  subject  to  its  revenue 
laws.  However,  the  opinion  pointedly  referred  to  a  letter  of  the 
Secretary  of  the  Treasury  directing  the  enforcement  of  the  tariff 
laws  of  the  United  States,  upon  the  express  ground  that  Congress 
had  enacted  laws  which  recognized  the  treaty  of  cession.     Besides, 


1166      ADDITIONAL   CASES,  RELATING   TO   ANNEXATION   OP   TERRITORY. 


the  decision  was  expressly  placed  upon  the  conditions  of  the  treaty, 
and  it  was  stated,  in  so  many  words,  that  a  different  rule  would  have 
been  applied  had  the  stipulations  in  the  treaty  been  of  a  different 
character. 

But,  it  is  argued,  all  the  instances  previously  referred  to  may  be 
conceded,  for  they  but  illustrate  the  rule  inter  arma  sitent  leges. 
Hence  they  do  not  apply  to  acts  done  after  the  cessation  of  hostilities 
when  a  treaty  of  peace  has  been  concluded.  This  not  only  begs  the 
question,  but  also  embodies  a  fallacy.  A  case  has  been  supposed  in 
which  it  was  impossible  to  make  a  treaty  because  of  the  unwillingness 
or  disappearance  of  the  hostile  government,  and  therefore  the  occu- 
pation necessarily  continued,  although  actual  war  had  ceased.  The 
fallacy  lies  in  admitting  the  right  to  exercise  the  power,  if  only  it  is 
exerted  by  the  military  arm  of  the  government,  but  denying  it  where- 
ever  the  civil  power  comes  in  to  regulate  and  make  the  conditions 
more  in  accord  with  the  spirit  of  our  free  institutions.  Why  it  can 
be  thought,  although  under  the  Constitution  the  military  arm  of  the 
government  is  in  effect  the  creature  of  Congress,  that  such  arm  may 
exercise  a  power  without  violating  the  Constitution,  and  yet  Congress 
—  the  creator  —  may  not  regulate,  I  fail  to  comprehend. 

This  further  argument,  however,  is  advanced.  Granting  that  Con- 
gress may  regulate  without  incorporating,  where  the  military  arm  has 
taken  possession  of  foreign  territory,  and  where  there  has  been  or  can 
be  no  treaty,  this  does  not  concern  the  decision  of  this  case,  since 
there  is  here  involved  no  regulation,  but  an  actual  cession  to  the 
United  States  of  territory  by  treaty.  The  general  rule  of  the  law 
of  nations,  by  which  the  acquiring  government  fixes  the  status  of 
acquired  territory,  it  is  urged,  does  not  apply  to  the  government  of 
the  United  States,  because  it  is  incompatible  with  the  Constitution 
that  that  government  should  hold  territory  under  a  cession  and 
administer  it  as  a  dependency  without  its  becoming  incorporated. 
This  claim,  I  have  previously  said,  rests  on  the  erroneous  assumption 
that  the  United  States  under  tlie  Constitution  is  stripped  of  those 
powers  which  are  absolutely  inherent  in  and  essential  to  national 
existence.  The  certainty  of  this  is  illustrated  by  the  examples 
already  made  use  of  in  the  supposed  cases  of  discovery  and  conquest. 

If  the  authority  by  treaty  is  limited  as  suggested,  then  it  will  be 
impossible  to  terminate  a  successful  war  by  acquiring  territory 
through  a  treaty,  without  immediately  incorporating  such  territory 
into  the  United  States.  Let  me,  however,  eliminate  the  case  of  war, 
and  consider  the  treaty-making  power  as  subserving  the  purposes  of 
the  peaceful  evolution  of  national  life.  Suppose  the  necessity  of 
acquiring  a  naval  station  or  a  coaling  station  on  an  island  inhabited 
with  people  utterly  unfit  for  American  citizenship  and  totally  incapa- 
ble of  bearing  their  proportionate  burden  of  the  national  expense. 
Could  such  island,  under  the  rule  which  is  now  insisted  upon,  be 
taken?     Suppose,  again,  the  acquisition  of  territory  for  an  inter- 


DOWNES  V.   BIDWELL.  1167 

oceanic  canal,  where  an  inhabited  strip  of  land  on  either  side  is 
essential  to  the  United  States  for  the  preservation  of  the  work.  Can 
it  be  denied  that,  if  the  requirements  of  the  Constitution  as  to  tax- 
ation are  to  immediately  control,  it  might  be  impossible  by  treaty  to 
accomplish  the  desired  result? 

Whilst  no  particular  provision  of  the  Constitution  is  referred  to,  to 
sustain  the  argument  that  it  is  impossible  to  acquire  territory  by 
treaty  without  immediate  and  absolute  incorporation,  it  is  said  that 
the  spirit  of  the  Constitution  excludes  the  conception  of  property  or 
dependencies  possessed  by  the  United  States,  and  which  are  not  so 
completely  incorporated  as  to  be  in  all  respects  a  part  of  the  United 
States  ;  that  the  theory  upon  which  the  Constitution  proceeds  is  that 
of  confederated  and  independent  States,  and  that  no  territory,  there- 
fore, can  be  acquired  which  does  not  contemplate  statehood,  and 
excludes  the  acquisition  of  any  territory  which  is  not  in  a  position  to 
be  treated  as  an  integral  part  of  the  United  States.  But  this  reason- 
ing is  based  on  political,  and  not  judicial  considerations.  Conceding 
that  the  conception  upon  which  the  Constitution  proceeds  is  that  no 
territory,  as  a  general  rule,  should  be  acquired  unless  the  territory 
may  reasonably  be  expected  to  be  worthy  of  statehood,  the  determina- 
tion of  when  such  blessing  is  to  be  bestowed  is  wholly  a  political 
question,  and  the  aid  of  the  judiciary  cannot  be  invoked  to  usurp 
political  discretion  in  order  to  save  the  Constitution  from  imaginary 
or  even  real  dangers.  The  Constitution  may  not  be  saved  by  destroy- 
ing its  fundamental  limitations. 

Let  me  come,  however,  to  a  consideration  of  the  express  powers 
which  are  conferred  by  the  Constitution,  to  show  how  unwarranted 
is  the  principle  of  immediate  incorporation,  which  is  here  so  strenu- 
ously insisted  on.  In  doing  so  it  is  conceded  at  once  that  the  true 
rule  of  construction  is  not  to  consider  one  provision  of  the  Constitu- 
tion alone,  but  to  contemplate  all,  and  therefore  to  limit  one  con- 
ceded attribute  by  those  qualifications  which  naturally  result  from 
the  other  powers  granted  by  that  instrument,  so  that  the  whole  may 
be  interpreted  by  the  spirit  which  vivifies,  and  not  by  the  letter 
which  killeth.  Undoubtedly,  the  power  to  carry  on  war  and  to  make 
treaties  implies  also  the  exercise  of  those  incidents  which  ordinarily 
inhere  in  them.  Indeed,  in  view  of  the  rule  of  construction  which  I 
have  just  conceded  —  that  all  powers  conferred  by  the  Constitution 
must  be  interpreted  with  reference  to  the  nature  of  the  government 
and  be  construed  in  harmony  with  related  provisions  of  the  Constitu- 
tion —  it  seems  to  me  impossible  to  conceive  that  the  treaty-making 
power  by  a  mere  cession  can  incorporate  an  alien  people  into  the 
United  States  without  the  express  or  implied  approval  of  Congress. 
And  from  this  it  must  follow  that  there  can  be  no  foundation  for  the 
assertion  that,  where  the  treaty -making  power  has  inserted  conditions 
which  preclude  incorporation  until  Congress  has  acted  in  respect 
thereto,  such  conditions  are  void  and  incorporation  results  in  spite 


11G8      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 


thereof.  If  the  treaty-making  power  can  absolutely,  without  the  con- 
sent of  Congress,  incorporate  territory,  and  if  that  power  may  not 
insert  conditions  against  incorporation,  it  must  follow  that  the  treaty- 
making  power  is  endowed  by  the  Constitution  with  the  most  unlimited 
right,  susceptible  of  destroying  every  other  provision  of  the  Constitu- 
tion ;  that  is,  it  may  wreck  our  institutions.  If  the  proposition  be 
true,  then  millions  of  inhabitants  of  alien  territory  if  acquired  by 
treaty,  can,  without  the  desire  or  consent  of  the  people  of  the  United 
States  speaking  through  Congress,  be  immediately  and  irrevocably 
incorporated  into  the  United  States,  and  the  whole  structure  of  the 
government  be  overthrown.  While  thus  aggrandizing  the  treaty- 
making  power  on  the  one  hand,  the  construction  at  the  same  time 
minimizes  it  on  the  other,  in  that  it  strips  that  authority  of  any  right 
to  acquire  territory  upon  any  condition  which  would  guard  the  people 
of  the  United  States  from  the  evil  of  immediate  incorporation.  The 
treaty-making  power,  then,  under  this  contention,  instead  of  having 
the  symmetrical  functions  which  belong  to  it  from  its  very  nature, 
becomes  distorted  —  vested  with  the  right  to  destroy  upon  the  one 
hand,  and  deprived  of  all  power  to  protect  the  government  on  the 
other. 

And,  looked  at  from  another  point  of  view,  the  effect  of  the  princi- 
ple asserted  is  equally  antagonistic,  not  only  to  the  express  provisions, 
but  to  the  spirit  of  the  Constitution  in  other  respects.  Thus,  if  it  be 
true  that  the  treaty-making  power  has  the  authority  which  is  asserted, 
what  becomes  of  that  branch  of  Congress  which  is  peculiarly  the  rep- 
resentative of  the  people  of  the  United  States,  and  what  is  left  of  the 
functions  of  that  body  under  the  Constitution  ?  For,  although  the 
House  of  Representatives  might  be  unwilling  to  agree  to  the  incorpo- 
ration of  alien  races,  it  would  be  impotent  to  prevent  its  accomplish- 
ment, and  the  express  provisions  conferring  upon  Congress  the  power 
to  regulate  commerce,  the  right  to  raise  revenue  —  bills  for  which, 
by  the  Constitution,  must  originate  in  the  House  of  Representatives 
—  and  the  authority  to  prescribe  uniform  naturalization  laws,  would 
be  in  effect  set  at  naught  by  the  treaty-making  power.  And  the  con- 
sequent result  —  incorporation  —  would  be  beyond  all  future  control 
of  or  remedy  by  the  American  people,  since,  at  once  and  without  hope 
of  redress  or  power  of  change,  incorporation  by  the  treaty  would  have 
been  brought  about.  The  inconsistency  of  the  position  is  at  once 
manifest.  The  basis  of  the  argument  is  that  the  treaty  must  be  con- 
sidered to  have  been  incorporated,  because  acquisition  presupposes 
the  exercise  of  judgment  as  to  fitness  for  immediate  incorporation. 
But  the  deduction  drawn  is,  although  the  judgment  exercised  is 
against  immediate  incorporation,  and  this  result  is  plainly  expressed, 
the  conditions  are  void  because  no  judgment  against  incorporation 
can  be  called  into  play. 

All  the  confusion  and  dangers  above  indicated,  however,  it  is 
argued,  are  more  imaginary  than  real,  since,  although  it  be  conceded 


DOWNES   V.    BID  WELL.  1169 

that  the  treaty-making  power  has  the  right  by  cession  to  incorporate 
without  the  consent  of  Congress,  that  body  may  correct  the  evil  by 
availing  itself  of  the  provision  of  the  Constitution  giving  to  Congress 
the  right  to  dispose  of  the  territory  and  other  property  of  the  United 
States.  This  assumes  that  there  has  been  absolute  incorporation  by 
the  treaty-making  power  on  the  one  hand,  and  yet  asserts  that  Con- 
gress may  deal  with  the  territory  as  if  it  had  not  been  incorporated 
into  the  United  States.  In  other  words,  the  argument  adopts  con- 
flicting theories  of  the  Constitution,  and  applies  them  both  at  the 
same  time.  I  am  not  unmindful  that  there  has  been  some  contrariety 
of  decision  on  the  subject  of  the  meaning  of  the  clause  empowering 
Congress  to  dispose  of  the  territories  and  other  property  of  the  United 
States,  some  adjudged  cases  treating  that  article  as  referring  to 
property  as  such,  and  others  deriving  from  it  the  general  grant  of 
power  to  govern  territories.  In  view,  however,  of  the  relations  of  the 
territories  to  the  government  of  the  United  States  at  the  time  of 
the  adoption  of  the  Constitution,  and  the  solemn  pledge  then  existing 
that  they  should  forever  "  remain  a  part  of  the  Confederacy  of  the 
United  States  of  America,"  I  cannot  resist  the  belief  that  the  theory 
that  the  disposing  clause  relates  as  well  to  a  relinquishment  or  cession 
of  sovereignty  as  to  a  mere  transfer  of  rights  of  property  is  altogether 
erroneous. 

Observe,  again,  the  inconsistency  of  this  argument.  It  considers, 
on  the  one  hand,  that  so  vital  is  the  question  of  incorporation  that  no 
ali^n  territory  may  be  acquired  by  acession  without  absolutely  endow- 
ing the  territory  with  incorporation  and  the  inhabitants  with  result- 
ing citizenship,  because,  under  our  system  of  government,  the 
assumption  that  a  territory  and  its  inhabitants  maybe  held  by  any 
other  title  than  one  incorporating  is  impossible  to  be  thought  of. 
And  yet,  to  avoid  the  evil  consequences  which  must  follow  from 
accepting  this  proposition,  the  argument  is  that  all  citizenship  of  the 
United  States  is  precarious  and  fleeting,  subject  to  be  sold  at  any 
moment,  like  any  other  property.  That  is  to  say,  to  protect  a  newly 
acquired  people  in  their  presumed  rights,  it  is  essential  to  degrade 
the  whole  body  of  American  citizenship. 

The  reasoning  which  has  sometimes  been  indulged  in  by  those  who 
asserted  that  the  Constitution  was  not  at  all  operative  in  the  territo- 
ries is  that,  as  they  were  acquired  by  purchase,  the  right  to  buy  in- 
cluded the  right  to  sell.  This  has  been  met  by  the  proposition  that 
if  the  country  purchased  and  its  inhabitants  became  incorporated  into 
the  United  States,  it  came  under  the  shelter  of  the  Constitution,  and 
no  power  existed  to  sell  American  citizens.  In  conformity  to  the 
principles  which  I  have  admitted  it  is  impossible  for  me  to  say  atone 
and  the  same  time  that  territory  is  an  integral  part  of  the  United 
States  protected  by  the  Constitiition,  and  yet  the  safeguards,  privi- 
leges, rights,  and  immunities  which  arise  from  this  situation  are  so 
ephemeral  in  their  character  that  by  a  mere  act  of  sale  they  may  be 

74 


1170      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OP   TERRITORY. 


destroyed.  And  applying  this  reasoning  to  the  provisions  of  the 
treaty  under  consideration,  to  me  it  seems  indubitable  that  if  the 
treaty  with  Spain  incorporated  all  the  territory  ceded  into  the  United 
States,  it  resulted  that  the  millions  of  people  to  whom  that  treaty 
related  were,  without  the  consent  of  the  American  people  as  expressed 
by  Congress,  and  without  any  hope  of  relief,  indissolubly  made  a  part 
of  our  common  country. 

Undoubtedly,  the  thought  that  under  the  Constitution  power  to 
dispose  of  people  and  territory,  and  thus  to  annihilate  the  rights  of 
American  citizens,  was  contrary  to  the  conceptions  of  the  Constitu- 
tion entertained  by  Washington  and  Jefferson.  In  the  written  sug- 
gestions of  Mr.  Jefferson,  when  Secretary  of  State,  reported  to 
President  Washington  in  March,  1792,  on  the  subject  of  proposed 
negotiations  between  the  United  States  and  Spain,  which  were  in- 
tended to  be  communicated  by  way  of  instruction  to  the  commission- 
ers of  the  United  States  appointed  to  manage  such  negotiations,  it 
was  observed,  in  discussing  the  possibility  as  to  compensation  being 
demanded  by  Spain  ''for  the  ascertainment  of  our  right "  to  navigate 
the  lower  part  of  the  Mississippi,  as  follows : 

"We  have  nothing  else"  (than  a  relinquishment  of  certain  claims 
on  Spain)  "to  give  in  exchange.  For  as  to  territory,  we  have  neither 
the  right  nor  the  disposition  to  alienate  an  inch  of  what  belongs  to 
any  member  of  our  Union.  Such  a  proposition  therefore  is  totally 
inadmissible,  and  not  to  be  treated  for  a  moment."  Ford's  Writings 
of  Jefferson,  vol.  v,  p.  476. 

The  rough  draft  of  these  observations  was  submitted  to  IVIr.  Ham- 
ilton, then  Secretary  of  the  Treasury,  for  suggestions,  previously  to 
sending  it  to  the  President,  some  time  before  March  5,  and  Hamilton 
made  the  following  (among  other)  notes  upon  it  : 

"  Page  25.  Is  it  true  that  the  United  States  have  no  right  to 
alienate  an  inch  of  the  territory  in  question,  except  in  the  case  of 
necessity  intimated  in  another  place  ?  Or  will  it  be  useful  to  avow 
the  denial  of  such  a  right  ?  It  is  apprehended  that  the  doctrine  which 
restricts  the  alienation  of  territory  to  cases  of  extreme  necessity  is  ap- 
plicable rather  to  peojyled  territory  than  to  waste  and  uninhabited 
districts.  Positions  restraining  the  right  of  the  United  States  to 
accommodate  to  exigencies  which  may  arise  ought  ever  to  be  advanced 
with  great  caution."     Ford's  Writings  of  Jefferson,  vol.  v,  p.  443. 

Kespecting  this  note,  Mr.  Jefferson  commented  as  follows : 

*'  The  power  to  alienate  the  unpeopled  territories  of  any  State  is  not 
among  the  enumerated  powers  given  by  the  Constitution  to  the  gen- 
eral government,  and  if  we  may  go  out  of  that  instrument  and 
accommodate  to  exigencies  tvhich  may  arise  by  alienating  the  unpeopled 
territory  of  a  State,  we  may  accommodate  ourselves  a  little  more  by 
alienating  that  which  is  peoided^  and  still  a  little  more  by  selling  the 
people  themselves.  A  shade  or  two  more  in  the  degree  of  exigency  is 
all  that  will  be  requisite,  and  of  that  degree  we  shall  ourselves  be  the 


DOWNES   V.   BIDWELL.  1171 

judges.  However,  may  it  not  be  hoped  that  these  questions  are  for- 
ever laid  to  rest  by  tlie  Twelfth  Amendment  once  made  a  part  of  the 
Constitution,  declaring  expressly  that  the  '  powers  not  delegated  to 
the  United  States  by  the  Constitution  are  reserved  to  the  States  re- 
spectively ?  *  And  if  the  general  government  has  no  power  to  alien- 
ate tlie  territory  of  a  State,  it  is  too  irresistible  an  argument  to  deny 
ourselves  tlie  use  of  it  on  the  present  occasion."     Hid. 

The  opinions  of  Mr.  Jefferson,  however,  met  the  approval  of  Presi- 
dent Washington.  On  March  18,  1792,  in  inclosing  to  the  commis- 
sioners to  Spain  their  commission,  he  said,  among  other  things  : 

''  You  will  herewith  receive  your  commission  ;  as  also  observations 
on  these  several  subjects  reported  to  the  President  and  approved  by 
him,  which  will  therefore  serve  as  instructions  for  you.  These  ex- 
pressing minutely  the  sense  of  our  government,  and  what  they  wish 
to  have  done,  it  is  unnecessary  for  me  to  do  more  here  than  desire 
you  to  pursue  these  objects  unremittingly,"  etc.  Ford's  Writings  of 
Jefferson,  vol.  v,  p.  45(5. 

When  the  subject  matter  to  which  the  negotiations  related  is  con- 
sidered, it  becomes  evident  that  the  word  "  State  "  as  above  used  re- 
lated-merely  to  territory  which  was  either  claimed  by  some  of  the 
States,  as  Mississippi  territory  was  by  Georgia,  or  to  the  Northwest 
Territory,  embraced  within  the  ordinance  of  1787,  or  the  territory 
south  of  the  Ohio  (Tennessee),  which  had  also  been  endowed  with  all 
the  rights  and  privileges  conferred  by  that  ordinance,  and  all  which 
territory  had  originally  been  ceded  by  States  to  the  United  States 
under  express  stipulations  that  such  ceded  territory  should  be  ulti- 
mately formed  into  States  of  the  Union.  And  this  meaning  of  the 
word  "  State  "  is  absolutely  in  accord  with  what  I  shall  hereafter  have 
occasion  to  demonstrate  was  the  conception  entertained  by  i\[r.  Jef- 
ferson of  what  constituted  the  United  States. 

True,  from  the  exigency  of  a  calamitous  war  or  the  necessity  of  a 
settlement  of  boundaries,  it  may  be  that  citizens  of  the  United  States 
may  be  expatriated  by  the  action  of  the  treaty-making  power,  im- 
pliedly or  expressly  ratified  by  Congress. 

P)ut  the  arising  of  these  particular  conditions  cannot  justify  the 
general  proposition  that  territory  which  is  an  integral  part  of  the 
United  States  may,  as  a  mere  act  of  sale,  be  disposed  of.  If,  how- 
ever, the  right  to  dispose  of  an  incorporated  American  territory  and 
citizens  by  the  mere  exertion  of  the  power  tq  sell  be  conceded,  argu- 
endo, it  would  not  relieve  the  dilemma.  It  is  ever  true  that,  where  a 
malign  principle  is  adopted,  as  long  as  the  error  is  adhered  to  it  must 
continue  to  produce  its  baleful  results.  Certainly,  if  there  be  no 
power  to  acquire  subject  to  a  condition,  it  must  follow  that  there  is  no 
authority  to  dispose  of  subject  to  conditions,  since  it  cannot  be  that 
the  mere  change  of  form  of  the  transaction  could  bestow  a  power 
which  the  Constitution  has  not  conferred.  It  would  follow,  then, 
that  any  conditions  annexed  to  a  disposition  which  looked  to  the  pro- 


1172      ADDITIONAL    CASES    RELATING    TO  ANNEXATION    OF    TERRITORY. 


tection  of  the  people  of  the  United  States,  or  to  enable  them  to  safe- 
guard the  disposal  of  territory,  would  be  void  ;  and  thus  it  would  be 
that  either  the  United  States  must  hold  on  absolutely,  or  must  dispose 
of  unconditionally. 

A  practical  illustration  will  at  once  make  the  consequences  clear. 
Suppose  Congress  should  determine  that  the  millions  of  inhabitants 
of  the  Philippine  Islands  should  not  continue  appurtenant  to  the 
United  States,  but  that  they  should  be  allowed  to  establish  an  auton- 
omous government,  outside  of  tlie  Constitution  of  the  United  States, 
coupled,  however,  with  such  conditions  providing  for  control  as  far 
only  as  essential  to  the  guaranty  of  life  and  property  and  to  protect 
against  foreign  encroachment.  If  the  proposition  of  incorporation 
be  well  founded,  at  once  the  question  would  arise  whether  the  ability 
to  impose  these  conditions  existed,  since  no  power  was  conferred  by 
the  Constitution  to  annex  conditions  which  would  limit  the  disposi- 
tion. And  if  it  be  that  the  question  of  whether  territory  is  immedi- 
ately fit  for  incorporation  when  it  is  acquired  is  a  judicial,  and  not  a 
legislative  one,  it  would  follow  that  the  validity  of  the  conditions 
would  also  come  within  the  scope  of  judicial  authority,  and  thus  the 
entire  political  policy  of  the  government  be  alone  controlled  by  the 
judiciary. 

The  theory  as  to  the  treaty-making  power  upon  which  the  argument 
which  has  just  been  commented  upon  rests,  it  is  now  proposed  to  be 
shown,  is  refuted  by  the  history  of  the  government  from  the  begin- 
ning. There  has  not  been  a  single  cession  made  from  the  time  of  the 
Confederation  up  to  the  present  day,  excluding  the  recent  treaty  with 
Spain,  which  has  not  contained  stipulations  to  the  effect  that  the 
United  States  through  Congress  would  either  not  disincorporate  or 
would  incorporate  the  ceded  territory  into  the  United  States.  There 
were  such  conditions  in  the  deed  of  cession  by  Virginia  when  it  con- 
veyed the  Korthwest  Territory  to  the  United  States.  Like  conditions 
were  attached  by  North  Carolina  to  the  cession  whereby  the  territory 
scmth  of  the  Ohio,  now  Tennessee,  was  transferred.  Similar  provi- 
sions were  contained  in  the  cession  by  Georgia  of  the  Mississippi 
territory,  now  the  States  of  Alabama  and  Mississippi.  Such  agree- 
ments were  also  expressed  in  the  treaty  of  1803,  ceding  Louisiana; 
that  of  1819,  ceding  the  Floridas,  and  in  the  treaties  of  1848  and 
1853,  by  which  a  large  extent  of  territory  was  ceded  to  this  country, 
as  also  in  the  Alaska  treaty  of  1867.  To  adopt  the  limitations  on  the 
treatj'-making  power  now  insisted  upon  would  presuppose  that  every 
one  of  these  conditions  thus  sedulously  provided  for  were  superfluous, 
since  the  guaranties  which  they  afforded  would  have  obtained,  although 
the^'  were  not  expressly  provided  for. 

When  the  various  treaties  by  which  foreign  territory  has  been  ac- 
qi^ired  are  considered  in  the  light  of  the  circumstances  which  sur- 
rounded them,  it  becomes  to  my  mind  clearly  established  that  the 
treaty-making  power  was  always  deemed  to  be  devoid  of  authority  to 


DOWNES   V.    BID  WELL.  1173 

incorporate  territory  into  the  United  States  without  the  assent,  ex- 
press or  implied,  of  Congress,  and  that  no  question  to  the  contrary- 
has  ever  been  even  mooted.  To  appreciate  this  it  is  essential  to  bear 
in  mind  what  the  words  "  United  States  "  signified  at  the  time  of  the 
adoption  of  the  Constitution.  When  by  the  treaty  of  peace  with 
Great  Britain  the  independence  of  the  United  States  was  acknow- 
ledged, it  is  unquestioned  that  all  the  territory  within  the  boundaries 
defined  in  that  treaty,  whatever  may  have  been  the  disputes  as  to 
title,  substantially  belonged  to  particular  States.  The  entire  territory 
was  part  of  the  United  States,  and  all  the  native  white  inhabitants 
were  citizens  of  the  United  States  and  endowed  with  the  rights  and 
privileges  arising  from  that  relation.  When,  as  has  already  been 
said,  the  Northwest  Territory  was  ceded  by  Virginia,  it  \Vas  expressly 
stipulated  that  the  rights  of  the  inhabitants  in  this  regard  should  be 
respected.  The  ordinance  of  1787,  providing  for  the  government  of 
the  Northwest  Territory,  fulfilled  this  promise  on  behalf  of  the  Con- 
federation. Without  undertaking  to  reproduce  the  text  of  the  ordi- 
nance, it  suffices  to  say  that  it  contained  a  bill  of  rights,  a  promise  of 
ultimate  statehood,  and  it  provided  (italics  mine)  that  "the  said 
territory  and  the  States  which  may  be  formed  therein  shall  ever  re- 
main a  part  of  this  Confederacy  of  the  United  States  of  America, 
subject  to  thfe  Articles  of  Confederation,  and  to  such  alterations 
therein  as  shall  be  constitutionally  made,  and  to  all  the  acts  and  ordi- 
nances of  the  United  States  in  Congress  assembled,  comformably 
thereto."  It  submitted  the  inhabitants  to  a  liability  for  a  tax  to  pay 
their  proportional  part  of  the  public  debt  and  the  expenses  of  the 
government,  to  be  assessed  by  the  rule  of  apportionment  which  gov- 
erned the  States  of  the  Confederation.  It  forbade  slavery  within  the 
territory,  and  contained  a  stipulation  that  the  provisions  of  the  ordi- 
nance should  ever  remain  unalterable  unless  by  common  consent. 

Thus  it  was  that,  at  the  adoption  of  the  Constitution,  the  United 
States,  as  a  geographical  unit  and  as  a  governmental  conception  both 
in  the  international  and  domestic  sense,  consisted  not  only  of  States, 
but  also  of  territories,  all  the  native  white  inhabitants  being  endowed 
with  citizenship,  protected  by  pledges  of  a  common  union,  and,  except 
as  to  political  advantages,  all  enjoying  equal  rights  and  freedom,  and 
safeguarded  by  substantially  similar  guaranties,  all  being  under  the 
obligation  to  contribute  their  proportionate  share  for  the  liquidation 
of  the  debt  and  future  expenses  of  the  general  government, 

The  opinion  has  been  expressed  that  the  ordinance  of  1787  became 
inoperative  and  a  nullity  on  the  adoption  of  the  Constitution  (Taney, 
C.  J.,  in  Scott  V.  Sandford,  19  How.  393,  438),  while  on  the  other  hand, 
it  has  been  said  that  the  ordinance  of  1787  was  "  the  most  solemn  of 
all  engagements,"  and  became  a  part  of  the  Constitution  of  the  United 
States  by  reason  of  the  Sixth  article,  which  provided  that  "all  debts 
contracted  and  engagements  entered  into  before  the  adoption  of  this 
Constitution  shall  be  as  valid  against  the  United  States  under  this 


1174:      ADDITIONAL   CASES   RELATING    TO  ANNEXATION    OP   TERRITORY. 


Constitution  as  under  the  Confederation."  Per  Baldwin,  J,,  concur- 
ring opinion  in  Pollard  v.  Kibbe,  14  Pet.  353,  417,  and  per  Catron,  J., 
in  dissenting  opinion  in  Strader  v.  Graham,  10  How.  82,  98.  Whatever 
view  may  be  taken  of  this  difference  of  legal  opinion,  my  mind  refuses 
to  assent  to  the  conclusion  that  under  the  Constitution  the  provision 
of  the  Northwest  Territory  ordinance  making  such  territory  forever  a 
part  of  the  Confederation  was  not  binding  on  the  government  of  the 
United  States  when  the  Constitution  was  formed.  When  it  is  borne 
in  mind  that  large  tracts  of  this  territory  were  reserved  for  distribu- 
tion among  the  Continental  soldiers,  it  is  impossible  for  me  to  believe 
that  it  was  ever  considered  that  the  result  of  the  cession  was  to  take 
the  Northwest  Territory  out  of  the  Union,  the  necessary  effect  of 
which  would  have  been  to  expatriate  the  very  men  who  by  their  suf- 
fering and  valor  had  secured  the  liberty  of  their  united  country. 
Can  it  be  conceived  that  North  Carolina,  after  the  adoption  of  the 
Constitution,  would  cede  to  the  general  government  the  territory 
south  of  the  Ohio  River,  intending  thereby  to  expatriate  those  daunt- 
less mountaineers  of  North  Carolina  who  had  shed  lustre  upon  the 
Eevolutionary  arms  by  the  victory  of  King's  iMountain  ?  And  the 
rights  bestowed  by  Congress  after  the  adoption  of  the  Constitution, 
as  I  shall  proceed  to  demonstrate,  were  utterly  incompatible  with 
such  a  theory. 

Beyond  question,  in  one  of  the  early  laws  enacted  at  the  first  ses- 
sion of  the  First  Congress,  the  binding  force  of  the  ordinance  was 
recognized,  and  certain  of  its  provisions  concerning  the  appointment 
of  officers  in  the  territory  were  amended  to  conform  the  ordinance  to 
the  new  Constitution.     Chap.  8,  Aug.  7,  1789,  1  Stat. 

In  view  of  this  it  cannot,  it  seems  to  me,  be  doubted  that  the 
United  States  continued  to  be  composed  of  States  and  territories,  all 
forming  an  integral  part  thereof  and  incorporated  therein,  as  was  the 
case  prior  to  the  adoption  of  the  Constitution.  Subsequently,  the 
territory  now  embraced  in  the  State  of  Tennessee  was  ceded  to  the 
United  States  by  the  State  of  North  Carolina.  In  order  to  insure 
the  rights  of  the  native  inhabitants,  it  was  expressly  stipulated  that 
the  inhabitants  of  the  ceded  territory  should  enjoy  all  the  rights, 
privileges,  benefits,  and  advantages  set  forth  in  the  ordinance  ''  of  the 
late  Congress  for  the  government  of  the  western  territory  of  the 
United  States."  A  condition  was,  however,  inserted  in  the  cession, 
that  no  regulation  should  be  made  by  Congress  tending  to  emancipate 
slaves.  By  act  of  April  2,  1790  (1  Stat.  106,  chap.  6)  this  cession 
was  accepted.  And  at  the  same  session,  on  May  26,  1790,  an  act, 
was  passed  for  the  government  of  this  territory,  under  the  designa- 
tion of  "the  territory  of  the  United  States  south  of  the  Ohio  River." 
1  Stat.  123,  chap.  14.  This  act,  except  as  to  the  prohibition  which 
was  found  in  the  Northwest  Territory  ordinance  as  to  slavery,  in 
express  terms  declared  that  the  inhabitants  of  the  territory  should 
enjoy  all  the  rights  conferred  by  that  ordinance. 


DOWNES  V.   BIDWELL.  1175 

A  government  of  the  Mississippi  territory  was  organized  on  April 
7,  1798.  1  Stat.  549,  chap.  28.  The  land  embraced  was  claimed  by 
the  State  of  Georgia,  and  her  rights  were  saved  by  the  act.  The 
sixth  section  thereof  provided  as  follows : 

''  Sec.  6.  A?id  be  it  further  enacted,  That  from  and  after  the  estab- 
lishment of  the  said  government,  the  people  of  the  aforesaid  terri- 
tory shall  be  entitled  to  and  enjoy,  all  and  singular,  the  rights, 
privileges,  and  advantages  granted  to  the  people  of  the  territory  of 
the  United  States  northwest  of  the  river  Ohio,  in  and  by  the  afore- 
said ordinance  of  the  thirteenth  day  of  July,  in  the  year  one  thou- 
sand seven  hundred  and  eighty-seven,  in  as  full  and  ample  a  manner 
as  the  same  are  possessed  and  enjoyed  by  the  people  of  the  said  last- 
mentioned  territory." 

Thus  clearly  defined  by  boundaries,  by  common  citizenship,  by  like 
guaranties,  stood  the  United  States  when  the  plan  of  acquiring  by 
purchase  from  France  the  province  of  Louisiana  was  conceived  by 
President  Jefferson.  Naturally,  the  suggestion  which  arose  was  the 
power  on  the  part  of  the  government  of  the  United  States,  under  the 
Constitution,  to  incorporate  into  the  United  States  —  a  Union  then 
composed,  as  I  have  stated,  of  States  and  Territories  — a  foreign  prov- 
ince inhabited  by  an  alien  people,  and  thus  make  them  partakers  in 
the  American  commonwealth.  Mr.  Jefferson,  not  doubting  the  power 
of  the  United  States  to  acquire,  consulted  Attorney  General  Lincoln  as 
to  the  right  by  treaty  to  stipulate  for  incorporation.  By  that  officer 
Mr.  Jefferson  was,  in  effect,  advised  that  the  power  to  incorporate,  that 
is,  to  share  the  privileges  and  immunities  of  the  people  of  the  United 
States  with  a  foreign  population,  required  the  consent  of  the  people 
of  the  United  States,  and  it  was  suggested,  therefore,  that  if  a  treaty 
of  cession  were  made  containing  such  agreements  it  should  be  put  in 
the  form  of  a  change  of  boundaries  instead  of  a  cession,  so  as  thereby 
to  bring  the  territory  within  the  United  States.  The  letter  of  Mr. 
Lincoln  was  sent  by  President  Jefferson  to  Mr.  Gallatin,  the  Secre- 
tary of  the  Treasury.  Mr.  Gallatin  did  not  agree  as  to  the  propriety 
of  the  expedient  suggested  by  Mr.  Lincoln.  In  a  letter  to  President 
Jefferson,  in  effect  so  stating,  he  said : 

"  But  does  any  constitutional  objection  really  exist  ?  To  me  it 
would  appear  (1)  that  the  United  States  as  a  nation  have  an  inherent 
right  to  acquire  territory ;  (2)  that  whenever  that  acquisition  is  by 
treaty,  the  same  constituted  authorities  in  which  the  treaty-making 
"power  is  vested  have  a  constitutional  right  to  sanction  the  acquisi- 
tion ;  (3)  that  whenever  the  territory  has  been  acquired  Congress 
have  the  power  either  of  admitting  into  the  Union  as  a  new  State,  or 
of  annexing  to  a  State,  with  the  consent  of  that  State,  or  of  making 
regulations  for  the  government  of  such  territory."  Gallatin's  Writ- 
ings, vol.  1,  p.  11,  etc. 

To  this  letter  President  Jefferson  replied  in  January,  1803,  clearly 
showing  that  he  thought  there  was  no  question  whatever  of  the  right 


1176      ADDITIONAL    CASES    RELATING   TO  ANNEXATION  OF   TERRITORY. 


of  the  United  States  to  acquire,  but  that  he  did  not  believe  incorpo- 
ration could  be  stipulated  for  and  carried  into  effect  without  the  con- 
sent of  the  people  of  the  United  States.     He  said  (italics  mine)  : 

"  You  are  right,  in  my  opinion,  as  to  Mr.  L's  proposition  :  There 
is  no  constitutional  difficulty  as  to  the  acquisition  of  territory,  atid 
whether  when  acquired  it  may  be  taken  into  the  Union  hy  the  Consti- 
tution as  it  noiu  stands  will  become  a  question  of  expediency.  I  think 
that  it  will  be  safer  not  to  permit  the  enlargement  of  the  Union  but 
by  amendment  of  the  Constitution."  Gallatin's  "Writings,  vol.  1, 
p.  115. 

And  the  views  of  Mr.  Madison,  then  Secretary  of  State,  exactly 
conformed  to  those  of  President  Jefferson,  for,  on  March  2,  1803,  in  a 
letter  to  the  commissioners  who  were  negotiating  the  treaty,  he  said  : 

"  To  incorporate  the  inhabitants  of  the  hereby  ceded  territory  with 
the  citizens  of  the  United  States,  being  a  provision  which  cannot 
now  be  made,  it  is  to  be  expected  from  the  character  and  policy  of 
the  United  States  that  such  incorporation  will  take  place  without  un- 
necessary delay."     State  Papers,  II,  540. 

Let  us  pause  a  moment  to  accentuate  the  irreconcilable  conflict 
■which  exists  between  the  interpretation  given  to  the  Constitution  at 
the  time  of  the  Louisiana  treaty  by  Jefferson  and  IMadison,  and  the 
import  of  that  instrument  as  now  insisted  upon.  You  are  to  nego- 
tiate, said  Madison  to  the  commissioners,  to  obtain  a  cession  of  the 
territory,  but  you  must  not  under  any  circumstances  agree  ^'  to  incorpo- 
rate the  inhabitants  of  the  hereby  ceded  territory  with  the  citizens  of  the 
United  States,  being  a  j^roinsion  ichich  cannot  now  be  made.^'  Under 
the  theory  now  urged,  Mr.  Madison  should  have  said :  You  are  to 
negotiate  for  the  cession  of  the  territory  of  Louisiana  to  the  United 
States,  and  if  deemed  by  you  expedient  in  accomplishing  this  pur- 
pose, you  may  provide  for  the  immediate  incorporation  of  the  inhab- 
itants of  the  acquired  territory  into  the  United  States.  This  you  can 
freely  do  because  the  Constitution  of  the  United  States  has  conferred 
upon  the  treaty-making  power  the  absolute  right  to  bring  all  the  alien 
people  residing  in  acquired  territory  into  the  United  States,  and  thus 
divide  with  them  the  rights  which  peculiarly  belong  to  the  citizens  of 
the  United  States.  Indeed,  it  is  immaterial  whether  you  make  such 
agreements,  since  by  the  effect  of  the  Constitution,  without  reference 
to  any  agreements  which  you  may  make  for  that  purpose,  all  the 
alien  territory  and  its  inhabitants  will  instant!}-  become  incorporated 
into  the  United  States  if  the  territory  is  acquired. 

Without  going  into  details,  it  suffices  to  say  that  a  compliance  with 
the  instructions  given  them  would  have  prevented  the  negotiators  on 
behalf  of  the  United  States  from  inserting  in  the  treaty  any  provi- 
sion looking  even  to  the  ultimate  incorporation  of  the  required  terri- 
tory into  the  United  States.  In  view  of  the  emergency  and  exigen- 
cies of  the  negotiations,  however,  the  commissioners  were  constrained 
to  make  such  a  stipulation,  and  the  treaty  provided  as  follows : 


DOWNES   V.    BI  DWELL.  1177 

"  Art  III.  The  inhabitants  of  the  ceded  territory  shall  be  incorpo- 
rated in  the  Union  of  the  United  States,  and  admitted  as  soon  as 
possible,  according  to  the  principles  of  the  Federal  Constitution,  to 
the  enjoyment  of  all  the  rights,  advantages,  and  immunities  of  citi- 
zens of  the  United  States;  and  in  the  meantime  they  shall  be  main- 
tained and  protected  in  the  free  enjoyment  of  their  liberty,  property, 
and  the  religion  which  they  profess."     8  Stat.  202. 

Weighing  the  provisions  just  quoted,  it  is  evident  they  refute  the 
theory  of  incorporation  arising  at  once  from  the  mere  force  of  a 
treaty,  even  altliough  such  result  be  directly  contrary  to  any  provisions 
which  a  treaty  may  contain.  Mark  the  language.  It  expresses  a 
promise:  "The  inhabitants  of  the  ceded  territory  shall  he  incorjjo- 
rated  into  the  Union  of  the  United  States.  .  .  ."  Observe  how  guard- 
edly the  fulfilment  of  this  pledge  is  postponed  until  its  accomplish- 
ment is  made  possible  by  the  will  of  the  American  people,  since  it  is 
to  be  executed  only  "as  soon  as  possible  according  to  the jirincijyles  of 
the  Federal  Cotistitutioji.'^  If  the  view  now  urged  be  true,  this  wise 
circumspection  was  unnecessary,  and,  indeed,  as  I  have  previously 
said,  the  entire  proviso  was  superfluous,  since  everything  which  it 
assured  for  the  future  was  immediately  and  unalterably  to  arise. 

It  is  said,  however,  that  the  treaty  for  the  purchase  of  Louisiana 
took  for  granted  that  the  territory  ceded  would  be  immediately  in- 
corporated into  the  United  States,  and  hence  the  guaranties  contained 
in  the  treaty  related,  not  to  such  incorporation,  but  was  a  pledge  that 
the  ceded  territory  was  to  be  made  a  part  of  the  Union  as  a  State. 
The  minutest  analysis,  however,  of  the  clauses  of  the  treaty,  fails  to 
disclose  any  reference  to  a  promise  of  statehood,  and  hence  it  can 
only  be  that  the  pledges  made  referred  to  incorporation  into  the 
United  States.  This  will  further  appear  when  the  opinions  of  Jef- 
ferson and  Madison  and  their  acts  on  the  subject  are  reviewed.  The 
argument  proceeds  upon  the  theory  that  the  words  of  the  treaty, 
"shall  be  incorporated  into  the  Union  of  the  United  States,"  could 
only  have  referred  to  a  promise  of  statehood,  since  the  then  existing 
and  incorporated  Territories  were  not  a  part  of  the  Union  of  the 
United  States,  as  that  Union  consisted  only  of  the  States.  But  this 
has  been  shown  to  be  unfounded,  since  the  "  Union  of  the  United 
States  "  was  composed  of  States  and  Territories,  both  having  been 
embraced  within  the  boundaries  fixed  by  the  treaty  of  peace  between 
Great  Britain  and  the  United  States  which  terminated  the  Revolu- 
tionary War,  the  latter,  the  Territories,  embracing  districts  of  coun- 
try which  were  ceded  by  the  States  to  the  United  States  under  the 
express  pledge  that  they  should  forever  remain  a  part  thereof.  That 
this  conception  of  the  Union  composing  the  United  States  was  the 
understanding  of  Jefferson  and  Madison,  and  indeed  of  all  those  who 
participated  in  the  events  which  preceded  and  led  up  to  the  Louisiana 
treaty,  results  from  what  I  have  already  said,  and  will  be  additionally 
demonstrated  by  statements  to  be  hereafter  made.     Again,  the  incon- 


1178      ADDITIONAL   CASES  RELATING    TO  ANNEXATION   OF   TERRITORY. 

sistency  of  the  argument  is  evident.  Thus,  whilst  the  premise  upon 
which  it  proceeds  is  that  foreign  territory,  when  acquired,  becomes  at 
once  a  part  of  the  United  States,  despite  conditions  in  the  treaty  ex- 
pressly excluding  such  consequence,  it  yet  endeavors  to  escape  the 
refutation  of  such  theory  which  arises  from  the  history  of  the  gov- 
ernment by  the  contention  that  the  territories  which  were  a  part  of 
the  United  States  were  not  component  constituents  of  the  Union 
which  composed  the  United  States.  I  do  not  understand  how  foreign 
territory  which  has  been  acquired  by  treaty  can  be  asserted  to  have 
been  absolutely  incorporated  into  the  United  States  as  a  part  thereof 
despite  conditions  to  the  contrary  inserted  in  the  treaty,  and  yet  the 
assertion  be  made  that  the  territories  which  as  I  have  said,  were  in 
the  United  States  originally  as  a  part  of  the  States,  and  which  were 
ceded  by  them  upon  express  condition  that  they  should  forever  so 
remain  a  part  of  the  United  States,  were  not  a  part  of  the  Union 
composing  the  United  States.  The  argument,  indeed,  reduces  itself 
to  this,  that  for  the  purpose  of  incorporating  foreign  territory  into 
the  United  States  domestic  territory  must  be  disincorporated.  In 
other  words,  that  the  Union  must  be,  at  least  in  theory,  dismem- 
bered for  the  purpose  of  maintaining  the  doctrine  of  the  immediate 
incorporation  of  alien  territory. 

That  Mr.  Jefferson  deemed  the  provision  of  the  treaty  relating  to 
incorporation  to  be  repugnant  to  the  Constitution  is  unquestioned. 
Whilst  he  conceded,  as  has  been  seen,  the  right  to  acquire,  he  doubted 
the  power  to  incorporate  the  territory  into  the  United  States  without 
the  consent  of  the  people  by  a  constitutional  amendment.  In  July, 
1803,  he  proposed  two  drafts  of  a  proposed  amendment,  which  he 
thought  ought  to  be  submitted  to  the  people  of  the  United  States  to 
enable  them  to  ratify  the  terms  of  the  treaty.  The  first  of  these, 
which  is  dated  July,  1803,  is  printed  in  the  margin.^ 
The  second  and  revised  amendment  was  as  follows : 
"  Louisiana,  as  ceded  by  France  to  the  United  States,  is  made  a 
part  of  the  United  States.  Its  white  inhabitants  shall  be  citizens, 
and  stand,  as  to  their  rights  and  obligations,  on  the  same  footing 
with  other  citizens  of  the  United  States  in  analogous  situations. 
Save  only  that,  as  to  the  portion  thereof  lying  north  of  the  latitude  of 
the  mouth  of  Arcana  River,  no  new  State  shall  be  established  nor 

1  First  draft  of  Mr.  Jefferson's  proposed  amendment  to  the  Constitution  :  "  The 
province  of  Louisiana  is  incorporated  with  the  United  States  and  made  part  thereof. 
The  rights  of  occupancy  in  the  soil  and  of  self-government  are  confirmed  to  Indian  in- 
habitants as  they  now  exist."  It  then  proceeded  with  other  provisions  relative  to 
Indian  rights  and  possessions  and  exchange  of  lands,  and  forbidding  Congress  to  dis- 
pose of  the  lands  otherwise  than  is  therein  provided  without  further  amendment  to  the 
Constitution.  This  draft  closes  thus  :  "  Except  as  to  that  portion  thereof  which  lies 
south  of  the  latitude  of  31°,  which,  whenever  they  deem  expedient,  they  may  enact 
into  a  territorial  government,  either  separate  or  as  making  part  with  one  on  the  east- 
ern side  of  the  river,  vesting  the  inhabitants  thereof  with  all  rights  possessed  by  other 
territorial  citizens  of  the  United  States."  Writings  of  Jefferson,  edited  by  Ford,  vol.  8, 
p.  241. 


DOWNES   V.    BIDWELL.  1179 

any  grants  of  land  made  therein  other  than  to  Indians  in  exchange 
for  equivalent  portions  of  lands  occupied  by  them  until  an  amend- 
ment of  the  Constitution  shall  be  made  for  those  purposes. 

"  Florida,  also,  whensoever  it  may  be  rightfully  obtained,  shall 
become  a  part  of  the  United  States.  Its  white  inhabitants  shall 
thereupon  become  citizens,  and  shall  stand,  as  to  their  rights  and 
obligations,  on  the  same  footing  with  other  citizens  of  the  United 
States  in  analogous  situations."  Ford's  Writings  of  Jefferson,  vol.  8, 
p.  241. 

It  is  strenuously  insisted  that  ISlv.  Jefferson's  conviction  on  the 
subject  of  the  repugnancy  of  the  treaty  to  the  Constitution  was  based 
alone  upon  the  fact  that  he  thought  the  treaty  exceeded  the  limits  of 
the  Constitution,  because  he  deemed  that  it  provided  for  the  admis- 
sion, according  to  the  Constitution,  of  the  acquired  territory  as  a  new 
State  or  States  into  the  Union,  and  hence,  for  the  purpose  of  con- 
ferring this  power,  he  drafted  the  amendment.  The  contention  is 
refuted  by  two  considerations  :  The  first,  because  the  two  forms  of 
amendment  which  Mr.  Jefferson  prepared  did  not  purport  to  confer 
any  power  upon  Congress  to  admit  new  States  ;  and,  second,  they  ab- 
solutely forbade  Congress  from  admitting  a  new  State  out  of  a  de- 
scribed part  of  the  territory  without  a  further  amendment  to  the 
Constitution.  It  cannot  be  conceived  that  Mr.  Jefferson  would  have 
drafted  an  amendment  to  cure  a  defect  which  he  thought  existed,  and 
yet  say  nothing  in  the  amendment  on  the  subject  of  such  defect. 
And,  moreover,  it  cannot  be  conceived  that  he  drafted  an  amendment 
to  confer  a  power  he  supposed  to  be  wanting  under  the  Constitution, 
and  thus  ratify  the  treaty,  and  yet  in  the  very  amendment  withhold 
in  express  terms,  as  to  a  part  of  the  ceded  territory,  the  authority 
which  it  was  the  purpose  of  the  amendment  to  confer. 

I  excerpt  in  the  margin  ^  two  letters  from  Mr.  Jefferson,  one  written 

1  Letter  to  William  Dunbar  of  July  7,  1803  : 

"  Before  you  receive  this  you  will  have  heard  through  the  channel  of  the  public 
papers  of  the  cession  of  Louisiana  by  France  to  the  United  States.  The  terms  as 
stated  in  the  National  Intelligencer  are  accurate.  That  the  treaty  may  be  ratified  in 
time,  I  have  found  it  necessary  to  convene  (^ongress  on  the  17th  of  October,  and  it  is 
very  important  for  the  happiness  of  tiie  country  that  they  should  possess  all  informa- 
tion which  can  be  obtained  respecting  it,  that  they  mak£  the  best  arrangements  practi- 
cable for  its  good  government.  It  is  most  necessary  because  they  will  be  obliged  to 
ask  from  the  people  an  amendment  of  the  Constitution  authorizing  their  receiving  the 
province  into  the  Union  and  providing  for  its  government,  and  limitations  of  power 
which  shall  be  given  by  tliat  amendment  will  be  unalterable  but  by  the  same  authority." 
Jefferson's  Writings,  vol.  8,  p.  254. 

Letter  to  Wilson  Gary  Nicholas  of  September  7,  1803  : 

"  I  am  aware  of  the  force  of  the  observations  you  make  on  the  power  given  by  the 
Constitution  to  Congress  to  admit  new  States  into  the  Union  without  restraining  the 
subject  to  the  territory  then  constituting  the  United  States.  But  when  I  consider 
that  the  limits  of  the  United  States  are  precisely  fixed  by  the  treaty  of  1783,  that  the 
Constitution  expressly  declares  itself  to  be  made  for  the  United  States,  I  cannot  help 
believing  that  tlie  intention  was  to  permit  Congress  to  admit  into  tlie  Union  new 
States  which  should  be  formed  out  of  the  territory  for  which  and  under  whose  author- 


IISO      ADDITIONAL   CASES   EELATING   TO  ANNEXATION   OF   TERRITORY. 

under  date  of  July  7,  1803,  to  William  Dunbar,  and  the  other  dated 
September  7,  1803,  to  Wilson  Gary  Nicholas,  which  show  clearly  the 
difficulties  which  were  in  the  mind  of  Mr.  Jefferson,  and  which  remove 
all  doubt  concerning  the  meaning  of  the  amendment  which  he  wrote 
and  the  adoption  of  which  he  deemed  necessary  to  cure  any  supposed 
want  of  power  concerning  the  treaty  would  be  provided  for. 

These  letters  show  that  Mr.  Jefferson  bore  in  mind  the  fact  that 
the  Constitution  in  express  terms  delegated  to  Congress  the  power  to 
admit  new  States,  and  therefore  no  further  authority  on  this  subject 
was  required.  But  he  thought  this  power  in  Congress  was  confined 
to  the  area  embraced  within  the  limits^of  the  United  States,  as  exist- 
ing at  the  adoption  of  the  Constitution.  To  fulfil  the  stipulations  of 
the  treaty  so  as  to  cause  the  ceded  territory  to  become  a  part  of  the 
United  States,  Mr.  Jefferson  deemed  an  amendment  to  the  Constitu- 
tion to  be  essential.  For  this  reason  the  amendment  which  he  for- 
mulated declared  that  the  territory  ceded  was  to  be  "a  j)art  of  the 
United  States,  and  its  white  inhabitants  shall  be  citizens,  and  stand, 
as  to  their  rights  and  obligations,  on  the  same  footing  with  other  citi- 
zens of  the  United  States  in  analogous  situations^  What  these  words 
meant  is  not  open  to  doubt  when  it  is  observed  that  they  were  but  the 
paraphrase  of  the  following  words,  which  were  contained  in  the  first 
proposed  amendment  which  Mr.  Jefferson  wrote  :  "  Vesting  the  in- 
habitants thereof  with  all  rights  possessed  by  other  territorial  citizens- 
of  the  United  States,"  —  which  clearly  show  that  it  was  the  want  of 
power  to  incorporate  the  ceded  country  into  the  United  States  as  a 
territory  which  was  in  Mr.  Jefferson's  mind,  and  to  accomplish  which 
result  he  thought  an  amendment  to  the  Constitution  was  required. 
This  provision  of  the  amendment  applied  to  all  of  the  territory  ceded, 
and  therefore  brought  it  all  into  the  United  States,  and  hence  placed 
it  in  a  position  where  the  power  of  Congress  to  admit  new  States 
would  have  attached  to  it.  As  Mr.  Jefferson  deemed  that  every  re- 
quirement of  the  treaty  would  be  fulfilled  by  incorporation,  and  that 
it  would  be  unwise  to  form  a  new  State  out  of  the  upper  part  of  the 
new  territory,  after  thus  providing  for  the  complete  execution  of  the 
treaty  by  incorporation  of  all  the  territory  into  the  United  States,  he 
inserted  a  provision  forbidding  Congress  from  admitting  a  neiv  State 
out  of  a  part  of  the  territory. 

With  the  debates  which  took  place  on  the  subject  of  the  treaty  I 
need  not  particularly  concern  myself.  Some  shared  Mr.  Jefferson's 
doubts  as  to  the  right  of  the  treaty-making  power  to  incorporate  the 


ity  alone  thev  were  then  acting.  I  do  not  believe  it  was  meant  that  they  might  receive 
England,  Ireland,  Holland,  etc.,  into  it,  which  would  be  the  cane  under  your  construc- 
tion. When  an  instrument  admits  two  constructions,  the  one  safe,  the  other  danger- 
ous, the  one  precise,  tlie  other  indefinite,  I  prefer  that  which  is  safe  and  precise.  I  had 
rather  ask  an  enlargement  of  power  from  the  nation  where  it  is  found  necessary,  than 
to  assume  it  by  a  construction  which  would  make  our  powers  boundless."  Writings  of 
Jefferson,  vol.  8,  p.  24". 


DOWNES   V.    BIDWELL.  1181 

territory  into  the  United  States  without  an  amendment  of  the  Consti- 
tution ;  others  deemed  that  the  provision  of  the  treaty  was  but  a 
promise  that  Congress  would  ultimately  incorporate  as  a  territory, 
and,  until  by  the  action  of  Congress  this  latter  result  was  brought 
about,  full  power  of  legislation  to  govern  as  deemed  best  was  vested 
in  Congress.  This  latter  view  prevailed.  Mr.  Jefferson's  proposed 
amendment  to  the  Constitution,  therefore,  was  never  adopted  by 
Congress,  and  hence  was  never  submitted  to  the  people. 

An  apt  was  approved  on  October  31,  1803  (2  Stat.  245),  "  to  enable 
the  President  of  the  United  States  to  take  possession  of  the  terri- 
tories ceded  by  France  to  the  United  States  by  the  treaty  concluded 
at  Paris  on  the  30th  of  April  last,  and  for  the  temporary  government 
thereof."  The  provisions  of  this  act  were  absolutely  incompatible 
with  the  conception  that  the  territory  had  been  incorporated  into  the 
United  States  by  virtue  of  the  cession.  On  November  10,  1803 
(2  Stat.  245  ),  an  act  was  passed  providing  for  the  issue  of  stock  to 
raise  the  funds  to  pay  for  the  territory.  On  February  24, 1804  (2  Stat. 
251),  an  act  was  approved  which  expressly  extended  certain  revenue 
and  other  laws  over  the  ceded  country.  On  March  26,  1804  (2  Stat. 
283),  an  act  was  passed  dividing  the  "  Province  of  Louisiana "  into 
Orleans  Territory  on  the  south  and  the  District  of  Louisiana  to  the 
north.  This  act  extended  over  the  Territory  of  Orleans  a  large 
number  of  the  general  laws  of  the  United  States,  and  provided  a 
form  of  government.  For  the  purposes  of  government  the  District  of 
Louisiana  was  attached  to  the  Territory  of  Indiana,  which  had  been 
carved  out  of  the  Northwest  Territory.  Although  the  area  described 
as  Orleans  Territory  was  thus  under  the  authority  of  a  territorial 
government,  and  many  laws  of  the  United  States  had  been  extended 
by  act  of  Congress  to  it,  it  was  manifest  that  Mr.  Jefferson  thought 
that  the  requirement  of  the  treaty  that  it  should  be  incorporated  into 
the  United  States  had  not  been  complied  with. 

In  a  letter  written  to  Mr.  Madison  on  July  14,  1804,  Mr.  Jefferson, 
speaking  of  the  treaty  of  cession,  said  (Ford's  Writings  of  Jefferson, 
vol.  8,  p.  313) : 

''The  inclosed  reclamations  of  Girod  &  Chote  against  the  claims  of 
Bapstroop  to  a  monopoly  of  the  Indian  commerce  supposed  to  be 
under  the  protection  of  the  third  article  of  the  Louisiana  convention, 
as  well  as  some  other  claims  to  abusive  grants,  will  probably  force  us 
to  meet  that  question.  The  article  has  been  worded  with  remarkable 
caution  on  the  part  of  our  negotiators.  It  is  that  the  inhabitants 
shall  be  admitted  as  soon  as  possible,  according  to  the  principles  of 
our  Constitution,  to  the  enjoyment  of  all  the  rights  of  citizens,  and, 
in  the  meantime,  en  attendant,  shall  be  maintained  in  their  liberty, 
property,  and  religion.  That  is,  that  they  shall  continue  under  the 
protection  of  the  treaty  until  the  principles  of  our  Constitution  can 
be  extended  to  them,  when  the  protection  of  the  treaty  is  to  cease, 
and  that  of  our  own  principles  to  take  its  place.     But  as  this  could 


1182      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 


not  be  clone  at  once,  it  has  been  provided  to  be  as  soon  as  our  rules 
will  admit.  Accordingly,  Congress  has  begun  by  extending  about 
twenty  particular  laws  by  their  titles,  to  Louisiana.  Among  these  is 
the  act  concerning  intercourse  with  the  Indians,  which  establishes  a 
system  of  commerce  with  them  admitting  no  monopoly.  That  class 
of  rights,  therefore,  are  now  taken  from  under  the  treaty  and  placed 
under  the  principles  of  our  laws.  I  imagine  it  will  be  necessary  to 
express  an  opinion  to  Governor  Claiborne  on  this  subject,  after  you 
shall  have  made  up  one." 

In  another  letter  to  Mr.  Madison,  under  date  of  August  15,  1804, 
Mr.  Jefferson  said  {Ibid.  p.  315)  : 

"  I  am  so  much  impressed  with  the  expedienc}"^  of  putting  a  termin- 
ation to  the  right  of  France  to  patronize  the  rights  of  Louisiana, 
which  will  cease  with  their  complete  adoption  as  citizens  of  the 
United  States,  that  I  hope  to  see  that  take  place  on  the  meeting  of 
Congress." 

At  the  following  session  of  Congress,  on  March  2,  1805  (2  Stat. 
322,  chap.  23),  an  act  was  approved,  which,  among  other  purposes, 
doubtless  was  intended  to  fulfil  the  hope  expressed  by  Mr.  Jefferson 
in  the  letter  just  quoted.  That  act,  in  the  first  section,  provided  that 
the  inhabitants  of  the  Territory  of  Orleans  ''shall  he  entitled  to  and 
enjoy  all  the  rights^  jyriuileges,  and  advantages  secured  by  the  said 
ordinance  "  (that  is,  the  ordinance  of  1787)  "  and  now  enjoyed  by  the 
people  of  the  Mississijypi  Territory.^'  As  will  be  remembered,  the 
ordinance  of  1787  had  been  extended  to  that  territory.  1  Stat.  550, 
chap.  28.  Thus,  strictly  in  accord  with  the  thought  embodied  in  the 
amendments  contemplated  by  Mr.  Jefferson,  citizenship  was  con- 
ferred, and  the  Territory  of  Orleans  was  incorporated  into  the  United 
States  to  fulfil  the  requirements  of  the  treaty,  by  placing  it  exactly 
in  the  position  which  it  would  have  occupied  had  it  been  within  the 
boundaries  of  the  United  States  as  a  territory  at  the  time  the  Consti- 
tution was  framed.  It  is  pertinent  to  recall  that  the  treaty  contained 
stipulations  giving  certain  preferences  and  commercial  privileges  for 
a  stated  period  to  the  vessels  of  French  and  Spanish  subjects,  and 
that,  even  after  the  action  of  Congress  above  stated,  this  condition  of 
the  treaty  continued  to  be  enforced,  thus  demonstrating  that  even 
after  the  incorporation  of  the  territory  the  express  provisions  con- 
ferring a  temporary  right  which  the  treaty  had  stipulated  for  and 
which  Congress  had  recognized  were  not  destroyed,  the  effect  being 
that  incorporation  as  to  such  matter  was  for  the  time  being  in  abeyance. 

The  upper  part  of  the  Province  of  Louisiana,  designated  by  the  act 
of  March  26,  1804  (2  Stat.  283,  chap.  38),  as  the  District  of  Louisiana, 
and  by  the  act  of  March  3,  1805  (2  Stat.  331,  chap.  31),  as  the  Terri- 
tory of  Louisiana,  was  created  the  Territory  of  Missouri  on  June  4, 
1812.  2  Stat.  743,  chap,  95.  By  this  latter  act,  though  the  ordinance 
of  1787  was  not  in  express  terms  extended  over  the  territory  — 
probably  owing  to  the  slavery  agitation  —  the  inhabitants  of  the  terri- 


DOWNES   V.   BIDWELL.  1183 

tory  were  accorded  substantially  all  the  rights  of  the  inhabitants  of 
the  Northwest  Territory.  Citizenship  was  in  effect  recognized  in  the 
ninth  section,  while  the  fourteenth  section  contained  an  elaborate 
declaration  of  the  rights  secured  to  the  people  of  the  territory. 

Pausing  to  analyze  the  practical  construction  which  resulted  from 
the  acquisition  of  the  vast  domain  covered  by  the  Louisiana  purchase, 
it  indubitably  results,  first,  that  it  was  conceded  by  every  shade  of 
opinion  that  the  government  of  the  United  States  had  the  undoubted 
right  to  acquire,  hold,  and  govern  the  territory  as  a  possession,  and 
that  incorporation  into  the  United  States  could  under  no  circum- 
stances arise  solely  from  a  treaty  of  cession,  even  although  it  con- 
tained provisions  for  the  accomplishment  of  such  result;  second,  it 
was  strenuously  denied  by  many  eminent  men  that,  in  acquiring  ter- 
ritory, citizenship  could  be  conferred  upon  the  inhabitants  within  the 
acquired  territory;  in  other  words,  that  the  territory  could  be  incor- 
porated into  the  United  States  without  an  amendment  to  the  Consti- 
tution ;  and,  third,  tliat  the  opinion  which  prevailed  w\t,s  that,  although 
the  treaty  might  stipulate  for  incorporation  and  citizenship  under  the 
Constitution,  such  agreements  by  the  treat3Mnaking  power  were  but 
promises  depending  for  their  fulfilment  on  the  future  action  of  Con- 
gress. In  accordance  with  this  view  the  territory  acquired  by  the 
Louisiana  purchase  was  governed  as  a  mere  dependency  until,  con- 
formably to  the  suggestion  of  Mr.  Jefferson,  it  was  by  the  action  of 
Congress  incorporated  as  a  Territory  into  the  United  States,  and  the 
same  rights  were  conferred  in  tlie  same  mode  by  which  other  Terri- 
tories had  previously  been  incorporated,  that  is,  by  bestowing  the 
privileges  of  citizenship  and  the  rights  and  immunities  which  per- 
tained to  the  Northwest  Territory. 

Florida  was  ceded  by  treaty  signed  on  February  2,  1819.  8  Stat. 
252.  While  drafted  in  accordance  with  the  precedent  afforded  by 
the  treaty  ceding  Louisiana,  the  Florida  treaty  was  slightly  modi- 
fied in  its  phraseology,  probably  to  meet  the  view  that  under  the 
Constitution  Congress  had  the  right  to  determine  the  time  when 
incorporation  was  to  arise.  Acting  under  the  precedent  afforded  by 
the  Louisiana  case,  Congress  adopted  a  plan  of  government  which 
was  wholly  inconsistent  with  the  theor}'  that  the  territory  had  been 
incorporated.  General  Jackson  was  appointed  governor  under  this 
act,  and  exercised  a  degree  of  authority  entirely  in  conflict  with  the 
conception  that  the  territory  was  a  part  of  the  United  States,  in  the 
sense  of  incorporation,  and  that  those  provisions  of  the  Constitution 
which  would  have  been  applicable  under  that  hypothesis  were  then 
in  force.  It  will  serve  no  useful  purpose  to  go  through  the  grada- 
tions of  legislation  adopted  as  to  Florida.  Suffice  it  to  say  that  in 
1822  ( 3  Stat.  654,  chap.  13),  an  act  was  passed  as  in  the  case  of 
Missouri,  and  presumably  for  the  same  reason,  which,  whilst  not  re- 
ferring to  the  Northwest  Territory  ordinance,  in  effect  endowed  the 
inhabitants  of  that  territory  with  the  rights  granted  by  such  ordinance. 


1184      ADDITIONAL   CASES    RELATING   TO  ANNEXATION    OP   TERRITORY. 


This  treaty  also,  it  is  to  be  remarked,  contained  discriminatory 
commercial  provisions,  incompatible  with  the  conception  of  immediate 
incorporation  arising  from  the  treaty,  and  they  were  enforced  by  the 
executive  officers  of  the  government. 

The  intensity  of  the  political  differences  which  existed  at  the  out- 
break of  hostilities  with  Mexico  and  at  the  termination  of  the  war 
with  that  country,  and  the  subject  around  which  such  conflicts  of 
opinion  centered,  probably  explains  why  the  treaty  of  peace  with 
Mexico  departed  from  the  form  adopted  in  the  previous  treaties  con- 
cerning Florida  and  Louisiana.  That  treaty,  instead  of  expressing  a 
cession  in  the  form  previously  adopted,  whether  intentionally  or  not 
I  am  unable,  of  course,  to  say,  resorted  to  the  expedient  suggested  by 
Attorney  General  Lincoln  to  President  Jefferson,  and  accomplished 
the  cession  by  changing  the  boundaries  of  the  two  countries  ;  in  other 
words,  by  bringing  the  acquired  territory  iclthin  the  described  bound- 
aries of  the  United  States.  The  treaty,  besides,  contained  a  stipula- 
tion for  rights  of  citizenship ;  in  other  words,  a  provision  equivalent 
in  terms  to  those  used  in  the  previous  treaties  to  which  I  have  re- 
ferred. The  controversy  which  was  then  flagrant  on  the  subject  of 
slavery  prevented  the  passage  of  a  bill  giving  California  a  territorial 
form  of  government,  and  California,  after  considerable  delay,  was 
therefore  directly  admitted  into  the  Union  as  a  State.  After  the 
ratification  of  the  treaty  various  laws  were  enacted  by  Congress, 
which  in  effect  treated  the  territory  as  acquired  by  the  United  States ; 
and  the  executive  officers  of  the  government,  conceiving  that  these 
acts  were  an  implied  or  express  ratification  of  the  provisions  of  the 
treaty  by  Congress,  acted  upon  the  assumption  that  the  provisions  of 
the  treaty  were  thus  made  operative,  and  hence  incorporation  had 
thus  become  efficacious. 

Ascertaining  the  general  rule  from  the  provisions  of  this  latter 
treaty  and  the  practical  execution  which  it  received,  it  will  be  seen 
that  the  precedents  established  in  the  cases  of  Louisiana  and  Florida 
were  departed  from  to  a  certain  extent ;  that  is,  the  rule  was  con- 
sidered to  be  that  where  the  treaty,  in  express  terms,  brought  the 
territory  within  the  boundaries  of  the  United  States  and  provided  for 
incorporation,  and  the  treaty  was  expressly  or  impliedly  recognized 
by  Congress,  the  provisions  of  the  treaty  ought  to  be  given  immedi- 
ate effect.  But  this  did  not  conflict  with  the  general  principles  of 
the  law  of  nations  which  I  have  at  the  outset  stated,  but  enforced  it, 
since  the  action  taken  assumed,  not  that  incorporation  was  brought 
about  by  the  treaty-making  power  wholly  without  the  consent  of 
Congress,  but  only  that,  as  the  treaty  provided  for  incorporation  in 
express  terms,  and  Congress  had  acted  without  repudiating  it,  its 
provisions  should  be  at  once  enforced. 

Without  referring  in  detail  to  the  acquisition  from  Russia  of 
Alaska,  it  suffices  to  say  that  that  treaty  also  contained  provisions 
for  incorporation,  and  was  acted  upon  exactly  in   accord    with  the 


DOWNES   V.    BIDWELL.  1185 

practical  construction  applied  in  the  case  of  the  acquisitions  from 
Mexico,  as  just  stated.  However,  the  treaty  ceding  Alaska  contained 
an  express  provision  excluding  from  citizenship  the  uncivilized  native 
tribes,  and  it  has  been  nowhere  contended  that  this  condition  of  ex- 
clusion was  inoperative  because  of  the  want  of  power  under  the  Con- 
stitution in  the  treaty-making  authority  to  so  provide,  which  must 
be  the  case  if  the  limitation  on  the  treaty-making  power,  which  is 
here  asserted,  be  well  founded.  The  treaty  concerning  Alaska,  there- 
fore, adds  cogency  to  the  conception  established  by  every  act  of  the 
government  from  the  foundation  —  that  the  condition  of  a  treaty, 
when  expressly  or  impliedly  ratified  by  Congress,  becomes  the 
measure  by  which  the  rights  arising  from  the  treaty  are  to  be 
adjusted. 

The  demonstration  which  it  seems  to  me  is  afforded  by  the  review 
which  has  preceded  is,  besides,  sustained  by  various  other  acts  of  the 
government  which  to  me  are  wholly  inexplicable  except  upon  the 
theory  that  it  was  admitted  that  the  government  of  the  United  States 
had  the  power  to  acquire  and  hold  territory  without  immediately 
incorporating  it.  Take,  for  instance,  the  simultaneous  acquisition 
and  admission  of  Texas,  which  was  admitted  into  the  Union  as  a 
State  by  joint  resolution  of  Congress,  instead  of  by  treaty.  To  what 
grant  of  power  under  the  Constitution  can  this  action  be  referred, 
unless  it  be  admitted  that  Congress  is  vested  with  the  right  to 
determine  when  incorporation  arises  ?  It  cannot  be  traced  to  the 
authority  conferred  on  Congress  to  admit  new  States,  for  to  adopt 
that  theory  would  be  to  presuppose  that  this  power  gave  the 
prerogative  of  conferring  statehood  on  wholly  foreign  territory. 
But  this  I  have  incidentally  shown  is  a  mistaken  conception.  Hence, 
it  must  be  that  the  action  of  Congress  at  one  and  the  same  time  ful- 
filled the  function  of  incorporation;  and,  this  being  so,  the  privilege 
of  statehood  was  added.  But  I  shall  not  prolong  this  opinion  by 
occupying  time  in  referring  to  the  many  other  acts  of  the  government 
which  further  refute  the  correctness  of  the  propositions  which  are 
here  insisted  on  and  which  I  have  previously  shown  to  be  without 
merit.  In  concluding  my  appreciation  of  the  history  of  the  government, 
attention  is  called  to  the  Thirteenth  Amendment  to  the  Constitution, 
which  to  my  mind  seems  to  be  conclusive.  The  first  section  of  the 
amendment,  the  italics  being  mine,  reads  as  follows:  "Sec.  1. 
Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their  jurisdic- 
tio?i."  Obviously  this  provision  recognized  that  there  may  be  places 
subject  to  the  jurisdiction  of  the  United  States,  but  which  are  not 
incorporated  into  it,  and  hence  are  not  within  the  United  States  in 
the  completest  sense  of  those  words. 

Let  me  now  proceed  to  show  that  the  decisions  of  this  court,  with- 
out a  single  exception,  are  absolutely  in  accord  with  the  true  rule  as 

75 


1186      ADDITIONAL   CASES  RELATING   TO    ANNEXATION   OF  TERRITORY. 


evolved  from  a  correct  construction  of  the  Constitution  as  a  matter  of 
first  impression,  and  as  shown  by  the  history  of  the  government 
which  has  been  previously  epitomized.  As  it  is  appropriate  here,  I 
repeat  the  quotation  which  has  heretofore  been  made  from  the 
opinion,  delivered  by  Mr.  Chief  Justice  Marshall,  in  American  Ins. 
Co.  V.  Canter,  1  Pet.  511  [827]  where,  considering  the  Florida  treaty, 
the  court  said  (p.  542)  : 

''The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to 
consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation  until  its  fate  shall  be  determined  at  the  treaty  of  peace. 
If  it  be  ceded  by  the  treaty  the  acquisition  is  confirmed,  and  the 
ceded  territory  becomes  a  part  of  the  nation  to  which  it  is  annexed, 
either  on  the  terms  stipulated  in  the  treaty  of  cession  or  on  such  as 
its  new  master  shall  impose." 

In  Fleming  v.  Page  the  court,  speaking  through  Mr.  Chief  Justice 
Taney,  discussing  the  acts  of  the  military  forces  of  the  United  States 
while  holding  possession  of  Mexican  territory,  said  (9  How.  614) : 

"  The  United  States,  it  is  true,  may  extend  its  boundaries  by 
conquest  or  tre9,ty,  and  may  demand  the  cession  of  territory  as  the 
condition  of  peace  in  order  to  idemnify  its  citizens  for  the  injuries 
they  have  suffered,  or  to  reimburse  the  government  for  the  expenses 
of  the  war.  But  this  can  be  done  only  by  the  treaty-making  power 
or  the  legislative  authority." 

In  Cross  v.  Harrison,  16  How.  164,  the  question  for  decision,  as  I 
have  previously  observed,  was  as  to  the  legality  of  certain  duties 
collected  both  before  and  after  the  ratification  of  the  treaty  of  peace, 
on  foreign  merchandise  imported  into  California.  Part  of  the  duties 
collected  were  assessed  upon  importations  made  by  local  officials 
before  notice  had  been  received  of  the  ratification  of  the  treaty  of 
peace,  and  when  duties  were  laid  under  a  tariff  which  had  been 
promulgated  by  the  President.  Other  duties  were  imposed  subse- 
quent to  the  receipt  of  notification  of  the  ratification,  and  these  latter 
duties  were  laid  according  to  the  tariff  as  provided  in  the  laws  of  the 
United  States.  All  the  exactions  were  upheld.  The  court  decided 
that,  prior  to  and  up  to  the  receipt  of  notice  of  the  ratification  of  the 
treaty,  the  local  government  lawfully  imposed  the  tariff  then  in  force 
in  California,  although  it  differed  from  that  provided  by  Congress, 
and  that  subsequent  to  the  receipt  of  notice  of  the  ratification  of  the 
treaty  the  duty  prescribed  by  the  act  of  Congress,  which  the  Presi- 
dent had  ordered  the  local  officials  to  enforce,  could  be  lawfully 
collected.  The  opinion  undoubtedly  expressed  the  thought  that  by 
the  ratification  of  the  treaty  in  question,  which,  as  I  have  shown,  not 
only  included  the  ceded  territory  within  the  boundaries  of  the  United 
States,  but  also  expressly  provided  for  incorporation,  the  territory 
had  become  a  part  of  the  United  States,  and  the  body  of  the  opinion 
quoted  the  letter  of  the  Secretary  of  the  Treasury,  which  referred  to 
the  enactment  of  laws  of  Congress  by   which  the  treaty  had  been 


DOWNES   V.   BID  WELL.  1187 

impliedly  ratified.  The  decision  of  the  court  as  to  duties  imposed 
subsequent  to  the  receipt  of  notice  of  the  ratification  of  the  treaty  of 
peace  undoubtedly  took  the  fact  I  have  just  stated  iuto  view,  and, 
in  addition,  unmistakably  proceeded  upon  the  nature  of  the  rights 
which  the  treaty  conferred.  No  comment  can  obscure  or  do  away 
with  the  patent  fact,  namely,  that  it  was  unequivocally  decided  that 
if  different  provisions  had  been  found  in  the  treaty  a  contrary  result 
would  have  followed.  Thus,  speaking  through  Mr.  Justice  Wayne, 
the  court  said  (16  How.  197)  : 

"By  the  ratification  of  the  treaty  California  became  a  part  of  the 
United  States.  And,  as  there  is  Jiothing  dijferently  stipulated  in  the 
treaty  ivith  respect  to  commerce,  it  became  instantly  bound  and  privi- 
leged by  the  laws  which  Congress  had  passed  to  raise  a  revenue  from 
duties  on  imports  and  tonnage." 

It  is,  then,  as  I  think,  indubitably  settled  by  the  principles  of  the 
law  of  nations,  by  the  nature  of  the  government  created  under  the 
Constitution,  by  the  express  and  implied  powers  conferred  upon  that 
government  by  the  Constitution,  by  the  mode  in  which  those  powers 
have  been  executed  from  the  beginning,  and  by  an  unbroken  line  of 
decisions  of  this  court,  first  announced  by  Marshall  and  followed  and 
lucidly  expounded  by  Taney,  that -the  treaty-making  power  cannot 
incorporate  territory  into  the  United  States  without  the  express  or 
implied  assent  of  Congress,  that  it  may  insert  in  a  treaty  conditions 
against  immediate  incorporation,  and  that  on  the  other  hand,  when  it 
has  expressed  in  the  treaty  the  conditions  favorable  to  incorporation 
they  will,  if  the  treaty  be  not  repudiated  by  Congress,  have  the  force 
of  the  law  of  the  land,  and  therefore  by  the  fulfilment  of  such  con- 
ditions cause  incorporation  to  result.  It  must  follow,  therefore,  that 
where  a  treaty  contains  no  conditions  for  incorporation,  and,  above 
all,  where  it  not  only  has  no  such  conditions,  but  expressly  provides 
to  the  contrary,  incorporation  does  not  arise  until  in  the  wisdom  of 
Congress  it  is  deemed  that  the  acquired  territory  has  reached  that 
state  where  it  is  proper  that  it  should  enter  into  and  form  a  part  of 
the  American  family. 

Does,  then,  the  treaty  in  question  contain  a  provision  for  incorpor- 
ation, or  does  it,  on  the  contrary,  stipulate  that  incorporation  shall 
not  take  place  from  the  mere  effect  of  the  treaty  and  until  Congress 
has  so  determined  ?  —  is  then  the  only  question  remaining  for  con- 
sideration. 

The  provisions  of  the  treaty  with  respect  to  the  status  of  Porto 
Rico  and  its  inhabitants  are  as  follows : 

"  Article  II. 

"  Spain  cedes  to  the  United  States  the  Island  of  Porto  Rico  and 
other  islands  now  under  Spanish  sovereignty  in  the  West  Indies,  and 
the  island  of  Guam,  in  the  Marianas  or  Ladroues." 


1188      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OF   TERRITORY. 


"Article  IX. 

"  Spanish  subjects,  natives  of  the  Peninsula,  residing  iu  the  terri- 
tory over  which  Spain  by  the  present  treaty  relinquishes  or  cedes  her 
sovereignty,  may  remain  in  such  territory  or  may  remove  therefrom, 
retaining  in  either  event  all  their  rights  of  property,  including  the 
right  to  sell  or  dispose  of  such  property  or  of  its  proceeds ;  and  they 
shall  also  have  the  right  to  carry  on  their  industry,  commerce,  and 
professions,  being  subject  in  respect  thereof  to  such  laws  as  are 
applicable  to  other  foreigners.  In  case  they  remain  in  the  territory 
they  may  preserve  their  allegiance  to  the  Crown  of  Spain  by  making, 
before  a  court  of  record,  within  a  year  from  the  date  of  the  exchange 
of  ratifications  of  this  treaty,  a  declaration  of  their  decision  to 
preserve  such  allegiance ;  in  default  of  which  declaration  they  shall 
be  held  to  have  renounced  it  and  to  have  adopted  the  nationality  of 
the  territory  in  which  they  may  reside. 

"  The  civil  rights  and  political  status  of  the  native  inhabitants  of 
the  territories  hereby  ceded  to  the  United  States  shall  be  determined 
by  the  Congress." 

"  Article   X. 

"  The  inhabitants  of  the  territories  over  which  Spain  relinquishes 
or  cedes  her  sovereignty  shall  be  secured  in  the  free  exercise  of  their 
religion." 


It  is  to  me  obvious  that  the  above-quoted  provisions  of  the  treaty 
do  not  stipulate  for  incorporation,  but,  on  the  contrary,  expressly 
provide  that  the  "  civil  rights  and  political  status  of  the  native  in- 
habitants of  the  territories  hereby  ceded"  shall  be  determined  by 
Congress.  When  the  rights  to  which  this  careful  provision  refers 
are  put  in  juxtaposition  with  those  which  have  been  deemed  essential 
from  the  foundation  of  the  government  to  bring  about  incorporation, 
all  of  which  have  been  previously  referred  to,  I  cannot  doubt  that 
the  express  purpose  of  the  treaty  was  not  only  to  leave  the  status  of 
the  territory  to  be  determined  by  Congress,  but  to  prevent  the  treaty 
from  operating  to  the  contrary.  Of  course,  it  is  evident  that  the 
express  or  implied  acquiescence  by  Congress  in  a  treaty  so  framed 
cannot  import  that  a  result  was  brought  about  which  the  treaty 
itself  —  giving  effect  to  its  provisions  —  could  not  produce.  And,  in 
addition,  the  provisions  of  the  act  by  which  the  duty  here  in  question 
was  imposed,  taken  as  a  whole,  seem  to  me  plainly  to  manifest  the 
intention  of  Congress  that,  for  the  present  at  least,  Porto  Rico  is  not 
to  be  incorporated  into  the  United  States. 

The  fact  that  the  act  directs  the  officers  to  swear  to  support  the 
Constitution   does   not   militate   against   this    view,  for,  as    I  have 


DOWNES    V,    BIDWELL.  1189 

conceded,  whether  the  island  be  incorporated  or  not,  the  applicable 
provisions  of  the  Constitution  are  there  in  force.  A  further  analysis 
of  the  provisions  of  the  act  seems  to  me  not  to  be  required  in  view  of 
the  fact  that  as  the  act  was  reported  from,  the  committee  it  contained 
a  provision  conferring  citizenship  upon  the  inhabitants  of  Porto  Rico, 
and  this  was  stricken  out  in  the  Senate.  The  argument,  therefore, 
can  only  be  that  rights  were  conferred,  which,  after  consideration,  it 
was  determined  should  not  be  granted.  Moreover,  I  fail  to  see  how  it 
is  possible,  on  the  one  hand,  to  declare  that  Congress  in  passing  the 
act  had  exceeded  its  powers  by  treating  Porto  Rico  as  not  incor- 
porated into  the  United  States,  and  at  the  same  time,  it  be  said  that 
the  provisions  of  the  act  itself  amount  to  an  incorporation  of  Porto 
Rico  into  the  United  States,  although  the  treaty  had  not  previously 
done  so.  It  in  reason  cannot  be  that  the  act  is  void  because  it  seeks 
to  keep  the  island  disincorporated,  and,  at  the  same  time,  that 
material  provisions  are  not  to  be  enforced  because  the  act  does 
incorporate.  Two  irreconcilable  views  of  that  act  cannot  be  taken  at 
the  same  time,  the  consequence  being  to  cause  it  to  be  unconstitu- 
tional. 

In  is^hat  has  preceded  I  have  in  effect  considered  every  substantial 
proposition,  and  have  either  conceded  or  reviewed  every  authority 
referred  to  as  establishing  that  immediate  incorporation  resulted 
from  the  treaty  of  cession  which  is  under  consideration.  Indeed,  the 
whole  argument  in  favor  of  the  view  that  immediate  incorporation 
followed  upon  the  ratification  of  the  treaty  in  its  last  analysis  neces- 
sarily comes  to  this  :  Since  it  has  been  decided  that  incorporation 
flows  from  a  treaty  which  provides  for  that  result,  when  its  provis- 
ions have  been  expressly  or  impliedly  approved  by  Congress,  it  must 
follow  that  the  same  effect  flows  from  a  treaty  which  expressly  stip- 
ulates to  the  contrary,  even  although  the  condition  to  that  end  has 
been  approved  by  Congress.  That  is  to  say,  the  argument  is  this : 
Because  a  provision  for  incorporation  when  ratified  incorporates, 
therefore  a  provision  against  incorporation  must  also  produce  the 
very  consequence  which  it  expressly  provides  against. 

The  result  of  what  has  been  said  is  that  whilst  in  an  international 
sense  Porto  Rico  was  not  a  foreign  countr}^,  since  it  was  subject  to 
the  sovereignty  of  and  was  owned  by  the  United  States,  it  was  for- 
eign to  the  United  States  in  a  domestic  sense,  because  the  island  had 
not  been  incorporated  into  the  United  States,  but  was  merely  appur- 
tenant thereto  as  a  possession.  As  a  necessary  consequence,  the  im- 
post in  question  assessed  on  merchandise  coming  from  Porto  Rico 
into  the  United  States  after  the  cession  was  within  the  power  of  Con- 
gress, and  that  body  was  not,  moreover,  as  to  such  impost,  controlled 
by  the  clause  requiring  that  imposts  should  be  uniform  throughout 
the  United  States ;  in  other  words  the  provision  of  the  Constitution 
just  referred  to  was  not  applicable  to  Congress  in  legislating  for 
Porto  Rico. 


1190      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 


Incidentally  I  have  heretofore  pointed  out  that  the  arguments  of 
expediency  pressed  with  so  much  earnestness  and  ability  concern  the 
legislative,  and  not  the  judicial,  department  of  the  government.  But 
it  may  be  observed  that,  e^jen  if  the  disastrous  consequences  which 
are  foreshadowed  as  arising  from  conceding  that  the  government  of 
the  United  States  may  hold  property  without  incorporation  were  to 
tempt  me  to  depart  from  what  seems  to  me  to  be  the  plain  line  of 
judicial  duty,  reason  adnionislies  me  that  so  doing  would  not  serve 
to  prevent  the  grave  evils  which  it  is  insisted  must  come,  but,  on  tlie 
contrary,  would  only  render  them  more  dangerous.  This  must  be 
the  result,  since,  as  already  said,  it  seems  to  me  it  is  not  open  to  seri- 
ous dispute  that  the  military  arm  of  the  government  of  the  United 
States  may  hold  and  occupy  conquered  territory  without  incorpora- 
tion for  such  lengtli  of  time  as  may  seem  appropriate  to  Congress  in 
the  exercise  of  its  discretion.  The  denial  of  the  right  of  the  civil 
power  to  do  so  would  not,  therefore,  prevent  the  holding  of  territory 
by  the  United  States  if  it  was  deemed  best  by  the  political  depart- 
ment of  the  government,  but  would  simply  necessitate  that  it  should 
be  exercised  by  the  military  instead  of  by  the  civic  power. 

And  to  me  it  further  seems  apparent  that  another  and  more  disas- 
trous result  than  that  just  stated  would  follow  as  a  consequence  of 
an  attempt  to  cause  judicial  judgment  to  invade  the  domain  of  legis- 
lative discretion.  Quite  recently  one  of  the  stipulations  contained  in 
the  treaty  with  Spain  which  is  now  under  consideration  came  under 
review  by  this  court.  By  the  provision  in  question  Spain  relin- 
quished "  all  claim  of  sovereignty  over  and  title  to  Cuba."  It  was 
further  provided  in  the  treaty  as  follows  : 

''And  as  the  island  is  upon  the  evacuation  by  Spain  to  be  occupied 
by  the  United  States,  the  United  States,  will,  so  long  as  such  occupa- 
tion shall  last,  assume  and  discharge  the  obligations  that  may  under 
international  law  result  from  the  fact  of  its  occupation,  and  for  the 
protection  of  life  and  property." 

It  cannot,  it  is  submitted,  be  questioned  that,  under  this  provision 
of  the  treaty,  as  long  as  the  occupation  of  the  United  States  lasts, 
the  benign  sovereignty  of  the  United  States  extends  over  and  dom- 
inates the  Island  of  Cuba.  Likewise,  it  is  not,  it  seems  to  me,  ques- 
tionable that  the  period  when  that  sovereignty  is  to  cease  is  to  be 
determined  by  the  legislative  department  of  the  government  of  the 
United  States  in  the  exercise  of  the  great  duties  imposed  upon  it, 
and  with  the  sense  of  the  responsibility  which  it  owes  to  the  people 
of  the  United  States,  and  the  high  respect  which  it  of  course  feels 
for  all  the  moral  obligations  by  which  the  government  of  the  United 
States  may,  either  expressly  or  impliedly,  be  bound.  Considering 
the  provisions  of  this  treaty,  and  reviewing  the  pledges  of  this  gov- 
ernment extraneous  to  that  instrument,  by  which  the  sovereignty  of 
Cuba  is  to  be  held  by  the  United  States  for  the  beneiit  of  the  people 
of  Cuba  and  for  their  account,  to  be  relinquished  to  them  when  the 


DOWNES   V.    BIDWELL.  1191 

conditions  justify  its  accomplishment,  this  court  unanimously  held  in 
Neely  v.  Heukel,  180  U.  S.  109,  that  Cuba  was  not  incorporated  into 
the  United  States,  and  was  a  foreign  country.  It  follows  from  this 
decision  that  it  is  lawful  for  the  United  States  to  take  possession  of 
and  hold  in  the  exercise  of  its  sovereign  power  a  particular  territory, 
without  incorporating  it  into  the  United  States,  if  there  be  obliga- 
tions of  honor  and  good  faith  which,  although  not  expressed  in  the 
treaty,  nevertheless  sacredly  bind  the  United  States  to  terminate  the 
dominion  and  control  when,  in  its  political  discretion,  the  situation  is 
ripe  to  enable  it  to  do  so.  Conceding,  then,  for  the  purpose  of  the 
argument,  it  to  be  true  that  it  would  be  a  violation  of  duty  under  the 
Constitution  for  the  legislative  department,  in  the  exercise  of  its 
discretion,  to  accept  a  cession  of  and  permanently  hold  territory 
which  is  not  intended  to  be  incorporated,  the  presumption  necessarily 
must  be  that  that  department,  which  within  its  lawful  sphere  is  but 
the  expression  of  the  political  conscience  of  the  people  of  the  United 
States,  will  be  faithful  to  its  duty  under  the  Constitution,  and  there- 
fore, when  the  unfitness  of  particular  territory  for  incorporation  is 
demonstrated,  the  occupation  will  terminate  I  cannot  conceive  how 
it  can~  be  held  that  pledges  made  to  an  alien  people  can  be  treated  as 
more  sacred  than  is  that  great  pledge  given  by  every  member  of  ev- 
ery department  of  the  government  of  the  United  States  to  support 
and  defend  the  Constitution. 

But  if  it  can  be  supposed  —  which,  of  course,  I  do  not  think  to  be 
conceivable — that  the  judiciary  would  be  authorized  to  draw  to 
itself  by  an  act  of  usurpation  purely  political  functions  upon  the 
theory  that  if  such  wrong  is  not  committed  a  greater  harm  will  arise, 
because  the  other  departments  of  the  government  will  forget  their 
duty  to  the  Constitution  and  wantonly  transcend  its  limitations,  I  am 
further  admonished  that  any  judicial  action  in  this  case  which  would 
be  predicated  upon  such  an  unwarranted  conception  would  be  abso- 
lutely unavailing.  It  cannot  be  denied  that  under  the  rule  clearly 
settled  in  Xeely  v.  Henkel,  180  U.  S.  109,  supra,  the  sovereignty 
of  the  United  States  may  be  extended  over  foreign  territory  to 
remain  paramount  until,  in  the  discretion  of  the  political  depart- 
ment of  the  government  of  the  United  States,  it  be  relinquished. 
This  method,  then,  of  dealing  with  foreign  territory,  would  in 
any  event  be  available.  Thus,  the  enthralling  of  the  treaty- 
making  power,  which  would  result  from  holding  that  no  territory 
could  be  acquired  by  treaty  of  cession  without  immediate  in- 
corporation, would  ■  only  result  in  compelling  a  resort  to  the 
subterfuge  of  relinquishment  of  sovereignty,  and  thus  indirection 
would  take  the  place  of  directness  of  action  —  a  course  which 
would  be  incompatible  with  the  dignity  and  honor  of  the  govern- 
ment. 

I  am  authorized  to  say  that  Mr.  Justice  Shiras  and  Mr.  Justice 
McKenxa  concur  in  this  opinion. 


1192      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OF    TERRITORY. 

Mr.  Justice  Gray,  concurring: 

Concurring  in  the  judgment  of  affirmance  in  this  case,  and  in  sub- 
stance agreeing  with  the  opinion  of  Mr.  Justice  White,  I  will  sum 
up  the  reasons  for  my  concurrence  in  a  few  propositions  which  may 
also  indicate  my  position  in  other  cases  now  standing  for  judgment. 

The  cases  now  before  the  court  do  not  touch  the  authority  of  the 
United  States  over  the  Territories  in  the  strict  and  technical  sense, 
being  those  which  lie  within  the  United  States,  as  bounded  by  the 
Atlantic  and  Pacific  Oceans,  the  Dominion  of  Canada  and  the  Eepub- 
lic  of  Mexico,  and  the  Territories  of  Alaska  and  Hawaii ;  but  they 
relate  to  territory  in  the  broader  sense,  acquired  by  the  United  States 
by  war  with  a  foreign  State. 

As  Chief  Justice  Marshall  said:  "The  Constitution  confers  abso- 
lutely on  the  government  of  the  Union  the  powers  of  making  war 
and  of  making  treaties ;  consequently,  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  by  treaty.  The 
usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to  consider 
the  holding  of  conquered  territory  as  a  mere  military  occupation, 
until  its  fate  shall  be  determined  at  the  treaty  of  peace.  If  it  be 
ceded  by  the  treaty,  the  acquisition  is  confirmed,  and  the  ceded  terri- 
tory becomes  a  part  of  the  nation  to  which  it  is  annexed,  either  on 
the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new 
master  shall  impose."  American  Ins.  Co.  v.  Canter  (1828),  1  Pet. 
511,  542  [827]. 

The  civil  government  of  the  United  States  cannot  extend  immedi- 
ately, and  of  its  own  force,  over  territory  acquired  by  war.  Such 
territory  must  necessarily,  in  the  first  instance,  be  governed  by  the 
military  power  under  the  control  of  the  President  as  Commander  in 
Chief.  Civil  government  cannot  take  effect  at  once,  as  soon  as  pos- 
session is  acquired  under  military  authority,  or  even  as  soon  as  that 
possession  is  confirmed  by  treaty.  It  can  only  be  put  in  operation 
by  the  action  of  the  appropriate  political  department  of  the  govern- 
ment, at  such  time  and  in  such  degree  as  that  department  may  deter- 
mine.    There  must,  of  necessity,  be  a  transition  period. 

In  a  conquered  territory,  civil  government  must  take  effect  either 
by  the  action  of  the  treaty-making  power,  or  by  that  of  the  Congress 
of  the  United  States.  The  office  of  a  treaty  of  cession  ordinarily  is 
to  put  an  end  to  all  authority  of  the  foreign  government  over  the 
territory,  and  to  subject  the  territory  to  the  disposition  of  the  gov- 
ernment of  the  United  States. 

The  government  and  disposition  of  territory  so  acquired  belong  to 
the  government  of  the  United  States,  consisting  of  the  President, 
the  Senate,  elected  by  the  States,  and  the  House  of  Representatives, 
chosen  by  and  immediately  representing  the  people  of  the  United 
States.  Treaties  b}'  which  territory  is  acquired  from  a  foreign  state 
usually  recognize  this. 

It  is  clearly  recognized  in  the  recent  treaty  with  Spain,  especially 


DOWNES   V.   BIDWELL.  1193 

in  the  ninth  article,  by  which  "  The  civil  rights  and  political  status 
of  the  native  inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  the  Congress." 

By  the  fourth  and  thirteenth  articles  of  the  treaty,  the  United 
States  agree  that  for  ten  years  Spanish  ships  and  merchandise  shall 
be  admitted  to  the  ports  of  the  Philippine  Islands  on  the  same  terms 
as  ships  and  merchandise  of  the  United  States,  and  Spanish  scien- 
tific, literary,  and  artistic  works  not  subversive  of  public  order  shall 
continue  to  be  admitted  free  of  duty  into  all  the  ceded  territories. 
Neither  of  these  provisions  could  be  carried  out  if  the  Constitution 
required  the  customs  regulations  of  the  United  tstates  to  api)iy  in 
those  territories. 

In  the  absence  of  congressional  legislation,  the  regulation  of  the 
revenue  of  the  conquered  territory,  even  after  the  treaty  of  session, 
remains  with  the  executive  and  military  authority. 

So  long  as  Congress  has  not  incorporated  the  territory  into  the 
United  States,  neither  military  occupation  nor  cession  by  treaty 
makes  the  conquered  territory  domestic  territory,  in  the  sense  of  the 
revenue  laws ;  but  those  laws  concerning  "  foreign  countries  "  remain 
applicable  to  the  conquered  territory  until  changed  by  Congress. 
Such  was  the  unanimous  opinion  of  this  court,  as  declared  by 
Chief  Justice  Taney  in  Fleming  v.  Page,  9  How.  603,  617. 

If  Congress  is  not  ready  to  construct  a  complete  government  for 
the  conquered  territory,  it  may  establish  a  temporary  government, 
which  is  not  subject  to  all  the  restrictions  of  the  Constitution. 

Such  was  the  effect  of  the  act  of  Congress  of  April  12,  1900,  chap. 
191,  entitled  "  An  Act  Temporarily  to  Provide  Revenues  and  a  Civil 
Government  for  Porto  Rico,  and  for  Other  Purposes."  By  the  third 
section  of  that  act,  it  was  expressly  declared  that  the  duties  thereby 
established  on  merchandise  and  articles  going  into  Porto  Rico  from 
the  United  States,  or  coming  into  the  United  States  from  Porto  Rico, 
should  cease  in  any  event  on  March  1,  1902,  and  sooner  if  the  legis- 
lative assembly  of  Porto  Rico  should  enact  and  put  into  operation  a 
system  of  local  taxation  to  meet  the  necessities  of  the  government 
established  by  that  act. 

The  system  of  duties  temporarily  established  by  that  act  during 
the  transition  period  was  within  the  authority  of  Congress  under  the 
Constitution  of  the  United  States. 

Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice 
Harlan,    Mr.    Justice     Brewer,    and     Mr.    Justice    Peckham, 

dissenting: 

This  is  an  action  brought  to  recover  moneys  exacted  by  the  collector 
of  customs  at  the  port  of  New  York  as  import  duties  on  two  sliip- 
ments  of  fruit  from  ports  in  the  Island  of  Porto  Rico  to  the  port  of 
New  York  in  November,  1900. 

The  treaty  ceding  Porto  Rico  to  the  United  States  was  ratified  by 


1194      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OP   TERRITORY. 

the  Senate  February  G,  1899 ;  Congress  passed  an  act  to  carry  out  its 
obligations  jMarch  3,  1899 ;  and  the  ratifications  were  exchanged,  and 
the  treaty  proclaimed  April  11,  1899.  Then  followed  the  act  approved 
April  12,  1900.     31  Stat.  77,  chap.  191. 

Mr.  Justice  Harlan,  Mr.  Justice  Brewer,  Mr.  Justice  Peckham,  and 
myself  are  unable  to  concur  in  the  opinions  and  judgment  of  the  court, 
in  this  case.  The  majority  widely  differ  in  the  reasoning  by  which 
the  conclusion  is  reached,  although  there  seems  to  be  concurrence  in 
the  view  that  Porto  Rico  belongs  to  the  United  States,  but  neverthe- 
less, and  notwithstanding  the  act  of  Congress,  is  not  a  part  of  the 
United  States  subject  to  the  provisions  of  the  Constitution  in  respect 
of  the  levy  of  taxes,  duties,  imposts,  and  excises. 

The  inquiry  is  whether  the  act  of  April  12,  1900,  so  far  as  it 
requires  the  payment  of  import  duties  on  merchandise  brought  from 
a  port  of  Porto  Rico  as  a  condition  of  entry  into  other  ports  of  the 
United  States,  is  consistent  with  the  Federal  Constitution. 

The  act  creates  a  civil  government  for  Porto  Rico,  with  a  governor, 
secretary,  attorney  general,  and  other  officers,  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate,  who,  together 
with  five  other  persons,  likewise  so  appointed  and  confirmed,  are  con- 
stituted an  executive  council;  local  legislative  powers  are  vested  in  a 
legislative  assembly  consisting  of  the  executive  council  and  a  house 
of  delegates  to  be  erected;  courts  are  provided  for,  and,  among  other 
things,  Porto  Rico  is  constituted  a  judicial  district,  with  a  district 
judge,  attorney,  and  marshal,  to  be  appointed  by  the  President  for  the 
term  of  four  years.  The  District  Court  is  to  be  called  the  District  Court 
of  the  United  States  for  Porto  Rico,  and  to  possess,  in  addition  to  the 
ordinary  jurisdiction  of  District  Courts  of  the  United  States,  jurisdic- 
tion of  all  cases  cognizant  in  the  Circuit  Courts  of  the  United  States. 
The  act  also  provides  that  •'  Writs  of  error  and  appeals  from  the  final 
decisions  of  the  Supreme  Court  of  Porto  Rico  and  the  District  Court 
of  the  United  States  shall  be  allowed  and  may  be  taken  to  the 
Supreme  Court  of  the  United  States  in  the  same  manner  and  under 
the  same  regulations  and  in  the  same  cases  as  from  the  supreme 
courts  of  the  Territories  of  the  United  States  ;  and  such  writs  of  error 
and  appeal  shall  be  allowed  in  all  cases  where  the  Constitution  of  the 
United  States,  or  a  treaty  thereof,  or  an  act  of  Congress  is  brought  in 
question  and  the  right  claimed  thereunder  is  denied." 

It  was  also  provided  that  the  inhabitants  continuing  to  reside  in 
Porto  Rico,  who  were  Spanish  subjects  on  April  11,  1899,  and  their 
children  born  subsequent  thereto  (except  such  as  should  elect  to  pre- 
serve their  allegiance  to  the  Crown  of  Spain),  together  with  citizens 
of  the  United  States  residing  in  Porto  Rico,  should  "constitute  a  body 
politic  under  the  name  of  The  People  of  Porto  Rico,  with  govern- 
mental powers  as  hereinafter  conferred,  and  with  power  to  sue  and  be 
sued  as  such." 

All  officials  authorized  by  the  act  are  required  to,  "before  entering 


DOWNES   V.    BIDWELL.  1195 

upon  the  duties  of  their  respective  offices,  take  an  oath  to  support  the 
Constitution  of  the  United  States  and  the  laws  of  Porto  Rico." 

The  second,  third,  fourth,  fifth  and  thirty-eighth  sections  of  the  act 
are  printed  in  the  margin.^ 

1  Sec.  2  That  on  and  after  the  passage  of  this  act  the  same  tariffs,  customs,  and 
duties  shall  be  levied,  collected,  and  paid  upon  all  articles  imported  into  I'orto  Rico 
from  ports  other  than  those  of  the  United  States  which  are  required  by  law  to  be  col- 
lected upon  articles  imported  into  the  United  States  from  foreign  countries  :  Pro- 
vidid.  That  on  all  coffee  in  the  bean  or  ground  imported  into  Porto  Uieo  there  shall 
be  levied  and  collected  a  duty  of  five  cents  per  pound,  any  law  or  part  of  law  to  the  con- 
trary notwithstanding:  And  provided  further,  That  all  Spani.sh  scientific,  literary, 
and  artistic  works,  not  subversive  of  public  order  in  Porto  Rico,  shall  be  admitted  free 
of  duty  into  Porto  Rico,  for  a  period  of  ten  years,  reckoning  from  the  eleventh  day 
of  April,  eighteen  hundred  and  ninety-nine,  as  provided  in  said  treaty  of  peace  between 
the  United  States  and  Spain:  A  :id  provided  further,  That  all  hooks  and  pamphlets 
printed  in  the  English  language  shall  be  admitted  into  Porto  Rico  free  of  duty  wiien 
imported  from  the  United  States. 

Sec.  3.     That  on  and  after  the  passage  of  this  act  all  merchandise  coming  into  the 
United  States  from  Porto  Rico  and  coming  into  Porto  Rico  from  the  United  States 
shall  be  entered  at  the  several  ports  of  entry  upon  payment  of  fifteen  per  centum  of 
the  duties  which  are  required  to  be  levied,  collected,  and  paid  upon  like  articles  of 
merchamlise  imported  from  foreign  countries-;  and  in  addition  thereto,  upon  articles 
of  merchandise  of  Porto  Rican  manufacture  coming  into  the  United  States  and  with- 
drawn for  consumption  or  sale,  upon  payment  of  a  tax  equal  to  the  internal   revenue 
tax  imposed  in  the  United  States  upon  the  like  articles  of  merchandise  of  domestic 
manufacture;  such  tax  to  be  paid  by  internal  revenue  stamp  or  stamps  to  he  pur- 
chased and  provided  by  the  Commissioner  of  Internal  Revenue,  and  to  be  procured 
from  the  collector  of  internal  revenue  at  or  most  convenient  to  tlie  port  of  entry  of 
Baid  merchandise  in  the  United  States,  and  to  be  affixed  under  such  regulations  as  the 
Commissioner  of  Internal  Revenue,  with  the  approval  of  the  Secretary  of  the  Treas- 
ury, shall  prescribe  ;  and  on  all  articles  of  merchandise  of  United  States  manufacture 
coming  into  Porto  Rico,  in  addition  to  the  duty  above  provided,  up(jn  payment  of  a 
tax  equal  In  rate  and  amount  to  the  internal  revenue  tax  imposed  in  Porto  Rico  u])on 
the  like  articles  of  Porto  Itican  manufacture  :    Provided,  That  on  and  after  the  date 
when  this  act  shall  take  effect  all  merchandise  and  articles,  except  coffee,  not  dutiable 
under  the  tariff  laws  of  the  United  States,  and  all  merchandise  and  articles  entered 
in  Porto  Rico  free  of  duty  under  orders  heretofore  made  by  the  Secretary  of  ^\'a^, 
shall  be  adnutted  into  the  several  ports  thereof,  when  imported   from  the   United 
States,  free  of  duty,  all  laws  or  parts  of  laws  to  the  contrary  notwithsi;anding;  and 
whenever  the  legislative  assembly  of  Porto  Rico  shall  have  enacted  and  put  into 
operation  a  .system  of  local  taxation  to  meet  the  necessities  of  the  government  of 
Porto  Rico,  by  this  act  established,  and  shall  by  resolution  duly  passed  so  nc^tify  the 
President,  he  shall  make  proclamation  thereof,  and  thereupon  all  tariff  duties  oii 
merchandise  and  articles  going  into  Porto  Rico  from  the  United  States  or  coming 
into  the  United  States  from  Porto  Hico  shall  cease,  and  from  and  after  such  date  all 
such  merchandise  and  articles  shall  be  entered  at  the  several  ports  of  entry  free  of 
duty ;  and  in  no  event  shall  any  duties  be  collected  after  the  first  day  of  March, 
nineteen  hundred  and  two,  on  merchandise  and  articles  going  into  Porto  Rico  from 
the  United  States  or  coming  into  the  United  States  from  Porto  Rico. 

Sec.  4.  That  the  duties  and  taxes  collected  in  Porto  Rico  in  pursuance  of  this  act, 
less  the  cost  of  collecting  the  same,  anil  the  gross  amount  of  all  collections  of  duties 
and  taxes  in  the  United  States  upon  articles  of  merchandise  coming  from  Porto  Rico, 
shall  not  be  covered  into  the  general  fund  of  the  treasury,  but  shall  be  held  as  a  sepa- 
rate fund,  and  shall  be  ])la(ed  at  the  disposal  of  the  President  to  bo  used  for  the  gov- 
ernment and  benefit  of  Porto  Rico  uutil  the  government  of  Porto  Rico  herein  j)ro- 


1196      ADDITIONAL   CASES   RFXATING   TO    ANNEXATION   OF   TERRITORY. 


It  will  be  seen  that  duties  are  imposed  upon  "  merchandise  coming 
into  Porto  Rico  from  the  United  States  ; "  *'  merchandise  coming  into 
the  United  States  from  Porto  Rico ; "  taxes  upon  "  articles  of  mer- 
chandise of  Porto  Rican  manufacture  coming  into  the  United  States 
and  withdrawn  from  consumption  or  sale "'  "  equal  to  the  internal 
revenue  tax  imposed  in  the  United  States  upon  like  articles  of 
domestic  manufacture;"  and  "on  all  articles  of  merchandise  of 
United  States  manufacture  coming  into  Porto  Rico,"  "a  tax  equal  in 
rate  and  amount  to  the  internal  revenue  tax  imposed  in  Porto  Rico 
upon  the  like  articles  of  Porto  Rican  manufacture." 

And  it  is  also  provided  that  all  duties  collected  in  Porto  Rico  on 
imports  from  foreign  countries  and  on  "  merchandise  coming  into 
Porto  Rico  from  the  United  States,"  and  "  the  gross  amount  of  all 
collections  of  duties  and  taxes  in  the  United  States  upon  articles  of 
merchandise  coming  from  Porto  Rico,"  shall  be  held  as  a  separate 
fund  and  placed  "  at  the  disposal  of  the  President  to  be  used  for  the 

vided  for  shall  have  been  organized,  when  all  moneys  theretofore  collected  under  the 
provisions  hereof,  then  unexpended,  shall  be  transferred  to  the  local  treasury  of  Porto 
Rico,  and  the  Secretary  of  the  Treasury  shall  designate  the  several  ports  and  sub-ports 
of  entry  into  Porto  Rico,  and  shall  make  such  rules  and  regulations  and  appoint  such 
agents  as  may  be  necessary  to  collect  the  duties  and  taxes  authorized  to  be  levied,  col- 
lected, and  paid  in  Porto  Rico  by  tlie  provisions  of  this  act,  and  he  shall  fix  the  com- 
pensation and  provide  for  the  payment  thereof  of  all  such  officers,  agents,  and 
assistants  as  he  may  find  it  necessary  to  employ  to  carry  out  the  provisions  hereof: 
Provided,  however,  That  as  soon  as  a  civil  government  for  Porto  Rico  shall  have  been 
organized  in  accordance  witli  the  provisions  of  this  act,  and  notice  thereof  shall  have 
been  given  to  the  President,  he  shall  make  proclamation  thereof,  and  thereafter  all  collec- 
tions of  duties  and  taxes  in  Porto  Rico  under  the  provisions  of  tliis  act  shall  be  paid 
into  the  treasury  of  Porto  Rico,  to  be  expended  as  required  by  law  for  the  government 
and  benefit  thereof,  instead  of  being  paid  into  the  tn'asury  of  the  United  States. 

Sec.  5.  That  on  and  after  the  day  when  this  act  shall  go  into  effect  all  goods, 
wares,  and  merchandise  previously  imported  from  Porto  Rico,  for  which  no  entry  has 
been  made,  and  all  goods,  wares,  and  merchandise  previously  entered  without  payment 
of  duty  and  under  bond  for  warehousing,  transportation,  or  any  other  purpose,  for 
which  no  permit  of  delivery  to  the  importer  or  his  agent  has  been  issued,  shall  be  sub- 
jected to  the  duties  imposed  by  this  act,  and  to  no  other  duty,  upon  the  entry  or  the 
withdrawal  thereof:  Provided,  That  when  duties  are  based  upon  the  weight  of  mer- 
chandise deposited  in  any  public  or  private  l)onded  warehouse  said  duties  shall  be 
levied  and  collected  upon  tlie  weight  of  such  merchandise  at  the  time  of  its  entry. 

Sec.  38.  That  no  export  duties  shall  be  levied  or  collected  on  exports  from  Porto 
Rico  ;  but  taxes  and  assessments  on  property,  and  license  feesfor  franchises,  privileges, 
and  concessions  may  be  imposed  for  the  purposes  of  the  insular  and  municipal  govern- 
ments, respectively,  as  maybe  provided  and  defined  by  tlie  act  of  the  legislative  assem- 
bly ;  and  where  necessary  to  anticipate  taxes  and  revenues,  bonds  and  other  obliga- 
tions may  be  issued  by  Porto  Rico  or  any  municipal  government  therein  as  may  be 
provided  by  law  to  provide  for  expenditures  authorized  by  law,  and  to  protect  the  pub- 
lic credit,  and  to  reimburse  the  United  States  for  any  moneys  which  have  been  or  may 
be  expended  out  of  the  emergency  fund  of  the  War  Department  for  the  relief  of  the 
industrial  conditions  of  Porto  Rico  caused  by  the  hurricane  of  August  eighth,  eighteen 
hundred  and  ninety-nine  :  Provided,  however.  That  no  public  indebtedness  of  Porto 
Rico  or  of  any  municipality  thereof  sliall  l)e  authorized  or  allowed  in  excess  of  seven 
per  centum  of  the  aggregate  tax  valuation  of  its  property. 


DOWNES    V.    BID  WELL.  1197 

government  and  benefit  of  Porto  Rico  "  until  the  local  government  is 
organized,  when  "  all  collections  of  taxes  and  duties  under  this  act 
shall  be  paid  into  the  treasury  of  Porto  Kico,  instead  of  being  paid 
into  the  treasury  of  the  United  States." 

The  first  clause  of  section  8,  Article  I,  of  the  Constitution  provides  ; 

"  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but  all  duties, 
imposts,  and  excises  shall  be  uniform  throughout  the  United  States." 

Clauses  four,  five,  and  six  of  section  nine  are  : 

"  No  capitation,  or  other  direct,  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

"No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

"  No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another ;  nor  shall 
vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties  in  another." 

This  act  on  its  face  does  not  comply  with  the  rule  of  uniformity, 
and  that  fact  is  admitted. 

The. uniformity  required  by  the  Constitution  is  a  geographical 
uniformity,  and  is  only  attained  when  the  tax  operates  with  the  same 
force  and  effect  in  every  place  where  the  subject  of  it  is  found. 
Knowlton  v.  Moore,  178  U.  S.  41 ;  Head  Money  Cases,  112  U.  S.  580, 
594  [252].  But  it  was  said  that  Congress,  in  attempting  to  levy 
these  duties  was  not  exercising  power  derived  from  the  first  clause  of 
section  8,  or  restricted  by  it,  because  in  dealing  with  the  Territories 
Congress  exercises  unlimited  powers  of  government,  and,  moreover, 
that  these  duties  are  merely  local  taxes. 

This  court,  in  1820,  when  Marshall  was  chief  justice,  and  Washing- 
ton, William  Johnson,  Livingston,  Todd,  Duvall,  and  Story  were  his 
associates,  took  a  different  view  of  the  power  of  Congress  in  the  mat- 
ter of  laying  and  collecting  taxes,  duties,  imposts,  and  excises  in  the 
Territories,  and  its  ruling  in  Loughborough  v.  Blake,  5  Wheat.  317, 
has  never  been  overruled. 

It  is  said  in  one  of  the  opinions  of  the  majorit}-  that  the  chief 
justice  *'  made  certain  observations  which  have  occasioned  some 
embarrassment  in  other  cases."  Manifestly  this  is  so  in  this  case, 
for  it  is  necessary  to  overrule  that  decision  in  order  to  reach  the 
result  herein  announced. 

The  question  in  Loughborough  v.  Blake  was  whether  Congress  had 
the  right  to  impose  a  direct  tax  on  the  District  of  Columbia  apart  from 
the  grant  of  exclusive  legislation,  which  carried  the  power  to  levy 
local  taxes.  The  court  held  that  Congress  had  such  power  under  the 
clause  in  question.  The  reasoning  of  Chief  Justice  Marshall  was 
directed  to  show  that  the  grant  of  the  power  to  "  lay  and  collect 
taxes,  duties,  imposts,  and  excises,"  because  it  was  general  and  with- 
out limitation  as  to  place,  consequently  extended  "  to  all  places  over 


1193      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

wliicli  the  government  extends,"  and  he  declared  that,  if  this  could  be 
doubted,  tlie  doubt  was  removed  by  the  subsequent  words,  which 
modified  the  grant,  "  but  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States."  He  then  said  :  "  It  will  not 
be  contended  that  the  modification  of  the  power  extends  to  places  to 
which  the  power  itself  does  not  extend.  The  power,  then,  to  lay  and 
collect  duties,  imposts,  and  excises  may  be  exercised,  and  must  be 
exercised,  throughout  the  United  States.  Does  this  term  designate 
the  whole,  or  any  portion  of  the  American  empire  ?  Certainly  this 
question  can  admit  of  but  one  answer.  It  is  the  name  given  to  our 
great  republic,  which  is  composed  of  States  and  territories.  The 
District  of  Columbia,  or  the  territory  west  of  the  Missouri,  is  not  less 
within  the  United  States  than  Maryland  or  Pennsylvania ;  and  it  is 
not  less  necessar}',  on  the  principles  of  our  Constitution,  that  uni- 
formity in  the  imposition  of  imposts,  duties,  and  excises  should  be 
observed  in  the  one  than  in  the  other.  Since,  then,  the  power  to  lay 
and  collect  taxes,  which  includes  direct  taxes,  is  obviously  coexten- 
sive with  the  power  to  lay  and  collect  duties,  imposts,  and  excises, 
and  since  the  latter  extends  throughout  the  United  States,  it  follows 
that  the  power  to  impose  direct  taxes  also  extends  throughout  the 
United  States." 

It  is  wholly  inadmissible  to  reject  the  process  of  reasoning  by  which 
the  chief  justice  reached  and  tested  the  soundness  of  his  conclusion, 
as  merely  obiter. 

Nor  is  there  any  imitation  that  the  ruling  turned  on  the  theory 
that  the  Constitution  irrevocably  adhered  to  the  soil  of  Maryland  and 
Virginia,  and  therefore  accompanied  the  parts  which  were  ceded  to 
form  the  District,  or  that  "  the  tie  "  between  those  States  and  the 
Constitution  "  could  not  be  dissolved  without  at  least  the  consent  of 
the  Federal  and  state  governments  to  a  formal  separation,"  and  that 
this  was  not  given  by  the  cession  and  its  acceptance  in  accordance 
with  the  constitutional  provision  itself,  and  hence  that  Congress  was 
restricted  in  the  exercise  of  its  powers  in  the  District,  while  not  so  in 
the  territories. 

So  far  from  that,  the  Chief  Justice  held  the  territories  as  well  as 
the  District  to  be  part  of  the  United  States  for  the  purposes  of 
national  taxation,  and  repeated  in  effect  what  he  had  already  said 
in  M'Culloch  v.  Maryland,  4  Wheat.  408  [1];  "Throughout  this  vast 
republic,  from  the  St.  Croix  to  the  Gulf  of  Mexico,  from  the  Atlantic 
to  the  Pacific,  revenue  is  to  be  collected  and  expended,  armies  are  to 
be  marched  and  supported." 

Conceding  that  the  power  to  tax  for  the  purposes  of  territorial  gov- 
ernment is  implied  from  the  power  to  govern  territory,  whether  the 
latter  power  is  attributed  to  the  power  to  acquire  or  the  power  to 
make  needful  rules  and  regulations,  these  particular  duties  are  never- 
theless not  local  in  their  nature,  but  are  imposed  as  in  the  exercise  of 
national  powers.     The  levy  is  clearly  a  regulation  of  commerce,  and 


DOWNES   V.    BIDWELL.  1199 

a  regulation  affecting  the  States  and  their  people  as  well  as  this  ter- 
ritory and  its  people.  The  power  of  Congress  to  act  directly  on  the 
rights  and  interests  of  the  people  of  the  States  can  only  exist  if,  and 
as,  granted  by  the  Constitution.  And  by  the  Constitution  Congress  is 
vested  with  power  "  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes."  The  terri- 
tories are  indeed  not  mentioned  by  name,  and  yet  commerce  between 
territories  and  foreign  nations  is  covered  by  the  clause,  which  would 
seem  to  have  been  intended  to  embrace  the  entire  internal  as  well  as 
foreign  commerce  of  the  country. 

It  is  evident  that  Congress  cannot  regulate  commerce  between  a 
territory  and  the  States  and  other  territories  in  the  exercise  of  the 
bare  power  to  govern  the  particular  territory,  and  as  this  act  was 
framed  to  operate  and  does  operate  on  the  people  of  the  States,  the 
power  to  so  legislate  is  apparently  rested  on  the  assumption  that  the 
right  to  regulate  commerce  between  the  States  and  territories  comes 
within  the  commerce  clause  by  necessary  implication.  Stoutenburgh 
V.  Hennick,  129  U.  S.  141. 

Accordingly  the  act  of  Congress  of  August  8,  1890,  entitled  "  An 
Act  to -Limit  the  Effect  of  the  Regulations  of  Commerce  between  the 
Several  States,  and  with  Foreign  Countries  in  Certain  Cases,"  applied 
in  terms  to  the  territories  as  well  as  to  the  States.  [26  Stat.  313, 
chap.  728.] 

In  any  point  of  view,  the  imposition  of  duties  on  commerce  oper- 
ates to  regulate  commerce,  and  is  not  a  matter  of  local  legislation ; 
and  it  follows  that  the  levy  of  these  duties  was  in  the  exercise  of  the 
national  power  to  do  so,  and  subject  to  the  requirement  of  geographi- 
cal uniformity. 

The  fact  that  the  proceeds  are  devoted  by  the  act  to  the  use  of  the 
territory  does  not  make  national  taxes  local.  Nobody  disputes  the 
source  of  the  power  to  lay  and  collect  duties  geographically  uniform, 
and  apply  the  proceeds  by  a  proper  appropriation  act  to  the  relief  of 
a  particular  territory,  but  the  destination  of  the  proceeds  would  not 
change  the  source  of  the  power  to  lay  and  collect.  And  that  sugges- 
tion is  certainly  not  strengthened  when  based  on  the  diversion  of 
duties  collected  from  all  parts  of  the  United  States  to  a  territorial 
treasury  before  reaching  the  Treasury  of  the  United  States.  Clause 
7  of  sec.  9  of  Article  I  provides  that  "  no  money  shall  be  drawn  from 
the  treasury,  but  in  consequence  of  appropriations  made  by  law,"  and 
the  proposition  that  this  may  be  rendered  inapplicable  if  the  money 
is  not  permitted  to  be  paid  in  so  as  to  be  susceptible  of  being  drawn 
out  is  somewhat  startling. 

It  is  also  urged  that  Chief  Justice  Marshall  was  entirely  in  fault 
because  while  the  grant  was  general  and  without  limitation  as  to 
place,  the  words,  "  throughout  the  United  States,"  imposed  a  lim- 
itation as  to  place  so  far  as  the  rule  of  uniformity  was  concerned, 
namely,  a  limitation  to  the  States  as  such. 


1200      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

Undoubtedly  the  view  of  the  Chief  Justice  was  utterly  inconsistent 
with  that  contention,  and,  in  addition  to  what  has  been  quoted,  he 
further  remarked:  "If  it  be  said  that  the  principle  of  uniformity, 
established  in  the  Constitution,  secures  the  District  from  oppression 
in  the  imposition  of  indirect  taxes,  it  is  not  less  true  that  the  prin- 
ciple of  apportionment,  also  established  in  the  Constitution,  secures 
the  District  from  any  oppressive  exercise  of  the  power  to  lay  and  col- 
lect direct  taxes."  It  must  be  borne  in  mind  that  the  grant  was  of 
the  absolute  power  of  taxation  for  national  purposes,  wholly  unlimited 
as  to  place,  and  subject  to  only  one  exception  and  two  qualifications. 
The  exception  was  that  exports  could  not  be  taxed  at  all.  The  quali- 
fications were  that  direct  taxes  must  be  imposed  by  the  rule  of  appor- 
tionment, and  direct  taxes  by  the  rule  of  uniformity.  License  Tax 
Cases,  5  Wall.  462.  But  as  the  power  necessarily  could  be  exercised 
throughout  every  part  of  the  national  domain.  State,  Territory,  Dis- 
trict, the  exception  and  the  qualifications  attended  its  exercise.  That 
is  to  say,  the  protection  extended  to  the  people  of  the  States  extended 
also  to  the  people  of  the  District  and  the  Territories. 

In  Knowlton  v.  Moore,  178  U.  S.  41,  it  is  shown  that  the  words, 
"throughout  the  United  States,"  are  but  a  qualification  introduced 
for  the  purpose  of  rendering  the  uniformity  prescribed,  geographical, 
and  not  intrinsic,  as  would  have  resulted  if  they  had  not  been  used. 

As  the  grant  of  the  power  to  lay  taxes  and  duties  was  unqualified 
as  to  place,  and  the  words  were  added  for  the  sole  piirpose  of  prevent- 
ing the  uniformity  required  from  being  intrinsic,  the  intention  thereby 
to  circumscribe  the  area  within  which  the  power  could  operate  not  only 
cannot  be  imputed,  but  the  contrary  presumption  must  prevail. 

Taking  the  words  in  their  natural  meaning  —  in  the  sense  in  which 
they  are  frequently  and  commonly  used  —  no  reason  is  perceived  for 
disagreeing  with  the  Chief  Justice  in  the  view  that  they  were  used 
in  this  clause  to  designate  the  geographical  unity  known  as  **The 
United  States,"  "our  great  republic,  which  is  composed  of  States 
and  territories." 

Other  parts  of  the  Constitution  furnish  illustrations  of  the  correct- 
ness of  this  view.  Thus,  the  Constitution  vests  Congress  with  the 
power  "to  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcy  throughout  the  United  States." 

This  applies  to  the  territories  as  well  as  the  States,  and  has  al- 
ways been  recognized  in  legislation  as  binding. 

Aliens  in  the  territories  are  made  citizens  of  the  United  States, 
and  bankrupts  residing  in  the  territories  are  discharged  from  debts 
owing  citizens  of  the  States,  pursuant  to  uniform  rules  and  laws  en- 
acted by  Congress  in  the  exercise  of  this  power. 

The  Fourteenth  Amendment  provides  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  States  wherein 
they  reside ;  "  and  this  court  naturally  held,  in  the  Slaughter-House 


DOWNES   V.   BIDWELL.  1201 

Cases,  16  Wall.  30  [18],  that  the  United  States  included  the  District 
and  the  territories.  Mr.  Justice 'Miller  observed:  "  It  had  been  said 
by  eminent  judges  that  no  man  was  a  citizen  of  the  United  States, 
except  as  he  was  a  citizen  of  one  of  the  States  composing  the  Union. 
Those,  therefore,  who  had  been  born  and  resided  always  in  the  Dis- 
trict of  Columbia  or  in  the  Territories,  though  within  the  United 
States,  were  not  citizens.  Whether  this  proposition  was  sound  or 
not  had  never  been  judicially  decided."  And  he  said  the  question 
was  put  at  rest  by  the  amendment,  and  the  distinction  between  citi- 
zenship of  the  United  States  and  citizenship  of  a  State  was  clearly 
recognized  and  established.  "  Not  only  may  a  man  be  a  citizen  of 
the  United  States  without  being  a  citizen  of  a  State,  but  an  important 
element  is  necessary  to  convert  the  former  into  the  latter.  He  must 
reside  within  the  State  to  make  him  a  citizen  of  it,  but  it  is  only  neces- 
sary that  he  should  be  born  or  naturalized  in  the  United  States  to  be 
a  citizen  of  the  Union." 

No  person  is  eligible  to  the  office  of  President  unless  he  has  ''  at- 
tained the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident 
of  the  United  States."     Clause  5,  sec.  1,  Art.  II. 

Would  a  native-born  citizen  of  Massachusetts  be  ineligible  if  he 
had  taken  up  his  residence  and  resided  in  one  of  the  territories  for 
so  many  years  that  he  had  not  resided  altogether  fourteen  years  in 
the  States  ?  When  voted  for  he  must  be  a  citizen  of  one  of  the 
States  (clause  3,  sec.  1,  Art.  II ;  Art.  XII),  but  as  to  length  of  time 
must  residence  in  the  territories  be  counted  against  him  ? 

The  Fifteenth  Amendment  declares  that  "  the  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude."  Where  does  that  prohibition  on  the 
United  States  especially  apply  if  not  in  the  territories  ? 

The  Thirteenth  Amendment  says  that  neither  slavery  nor  involun- 
tary servitude  "  shall  exist  within  the  United  States  or  any  place 
subject  to  their  jurisdiction."  Clearly  this  prohibition  would  have 
operated  in  the  territories  if  the  concluding  words  had  not  been  added. 
The  history  of  the  times  shows  that  the  addition  was  made  in  view 
of  the  then  condition  of  the  country  —  the  amendment  passed  the 
House  January  31,  18G5  —  and  it  is,  moreover,  otherwise  applicable 
to  the  territories.  Besides,  generally  speaking,  when  words  are  used 
simply  out  of  abundant  caution,  the  fact  carries  little  weight. 

Other  illustrations  might  be  adduced,  but  it  is  unnecessary  to  pro- 
long this  opinion  by  giving  them. 

I  repeat  that  no  satisfactory  ground  has  been  suggested  for  restrict- 
ing the  words  "  throughout  the  United  States,"  as  qualifying  the 
power  to  impose  duties,  to  the  States,  and  that  conclusion  is  the 
more  to  be  avoided  when  we  reflect  that  it  rests,  in  the  last  an- 
alysis, on  the  assertion  of  the  possession  by  Congress  of  unlimited 
power  over  the  territories. 

76 


1202      ADDITIONAL    CASES   RELATING    TO    ANNEXATION   OP   TERRITORY. 


The  government  of  the  United  States  is  the  government  ordained 
by  the  Constitution,  and  possesses  the  powers  conferred  by  the  Con- 
stitution. "This  original  and  supreme  will  organizes  the  govern- 
ment, and  assigns  to  different  departments  their  respective  powers. 
It  may  either  stop  here,  or  establish  certain  limits  not  to  be  tran- 
scended by  those  departments.  The  government  of  the  United  States 
is  of  the  latter  description.  The  powers  of  the  legislature  are  de- 
fined and  limited;  and  that  those  limits  may  not  be  mistaken  or 
forgotten,  the  Constitution  is  written.  To  what  purpose  are  powers 
limited,  and  to  what  purpose  is  that  limitation  committed  to  writing, 
if  these  limits  may,  at  any  time,  be  passed  by  those  intended  to  be 
restrained  ?  "  Marbury  v.  Madison,  1  Cranch,  137, 176  [815].  The  opin- 
ion of  the  court,  by  Chief  Justice  Marshall,  in  that  case,  was  deliv- 
ered at  the  February  term,  1803,  and  at  the  October  term,  1805,  the 
court,  in  Tick  Wo  v.  Hopkins,  118  U.  S.  356  [917],  speaking  through 
Mr.  Justice  IMatthews,  said :  "  When  we  consider  the  nature  and 
theory  of  our  institutions  of  government,  the  principles  upon  which 
they  are  supposed  to  rest,  and  review  the  history  of  their  develop- 
ment, we  are  constrained  to  conclude  that  they  do  not  mean  to  leave 
room  for  the  play  and  action  of  purely  personal  and  arbitrar}-  power. 
Sovereignty  itself  is,  of  course,  not  subject  to  law,  for  it  is  the  author 
and  source  of  law;  but  in  our  system,  while  sovereign  powers  are 
delegated  to  the  agencies  of  government,  sovereignty  itself  remains 
with  the  people,  by  whom  and  for  whom  all  government  exists  and 
acts.     And  the  law  is  the  definition  and  limitation  of  power." 

From  Marbury  v.  Madison  to  the  present  day,  no  utterance  of  this 
court  has  intimated  a  doubt  that  in  its  operation  on  the  people,  by 
whom  and  for  whom  it  was  established,  the  national  government  is  a 
government  of  enumerated  powers,  the  exercise  of  which  is  restricted 
to  the  use  of  means  appropriate  and  plainly  adapted  to  constitutional 
ends,  and  which  are  "not  prohibited,  but  consist  with  the  letter  and 
spirit  of  the  Constitution." 

The  powers  delegated  by  the  people  to  their  agents  are  not  enlarged 
by  the  expansion  of  the  domain  within  which  they  are  exercised. 
When  the  restriction  on  the  exercise  of  a  particular  power  by  a  par- 
ticular agent  is  ascertained,  that  is  an  end  of  the  question. 

To  hold  otherwise  is  to  overthrow  the  basis  of  our  constitutional 
law,  and  moreover,  in  effect,  to  reassert  the  proposition  that  the 
States,  and  not  the  people,  created  the  government. 

It  is  again  to  antagonize  Chief  Justice  Marshall,  when  he  said: 
"The  government  of  the  Union,  then  (whatever  may  be  the  influence 
of  this  fact  on  the  case),  is  emphatically  and  truly  a  government  of 
the  people.  In  form  and  in  substance  it  emanates  from  them.  Its 
powers  are  granted  by  them,  and  are  to  be  exercised  directly  on  them 
and  for  their  benefit.  This  government  is  acknowledged  by  all  to  be 
one  of  enumerated  powers."     4  Wheat.  404. 

The  prohibitory  clauses  of  the  Constitution  are  many,  and  they 


DOWNES   V.    BIDWELL.  1203 

have  been  repeatedly  given  effect  by  this  court  in  respect  of  the 
Territories  and  the  District  of  Columbia. 

The  underlying  principle  is  indicated  by  Chief  Justice  Taney,  in 
The  Passenger  Cases,  7  How.  283,  492  [245j,  where  he  maintained  the 
right  of  the  American  citizen  to  free  transit  in  these  words :  "  Living, 
as  we  do,  under  a  common  government  charged  with  the  great  concerns 
of  the  whole  Union,  ever\'  citizen  of  the  United  States,  from  the  most 
remote  States  or  territories,  is  entitled  to  free  access,  not  only  to  the 
principal  departments  established  at  Washington,  but  also  to  its 
judicial  tribunals  and  public  offices  in  every  State  and  territory  of  the 
Union.  .  .  .  For  all  the  great  purposes  for  which  the  Federal  govern- 
ment was  formed,  we  are  one  people,  with  one  common  country.  "We 
are  all  citizens  of  the  United  States;  and,  as  members  of  the  same 
community,,  must  have  the  right  to  pass  and  repass  through  every 
part  of  it  without  interruption,  as  freely  as  in  our  own  States." 

In  Cross  v.  Harrison,  16  How.  164,  197,  it  was  held  that  by  the  rati- 
fication of  the  treaty  with  Mexico  "California  became  a  part  of  the 
United  States,"  and  that  "  The  right  claimed  to  land  foreign  goods 
within  the  United  States  at  any  place  out  of  a  collection  district,  if 
allowed,  would  be  a  violation  of  that  provision  in  the  Constitution 
which  enjoins  that  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States." 

In  Dred  Scott  v.  Sandford,  19  How.  393,  the  court  was  unanimous 
in  holding  that  the  power  to  legislate  respecting  a  territory  was 
limited  by  the  restrictions  of  the  Constitution,  or,  as  Mr.  Justice 
Curtis  put  it,  by  "  the  express  prohibitions  on  Congress  not  to  do 
certain  things." 

Mr.  Justice  McLean  said :  "  N"o  powers  can  be  exercised  which 
are  prohibited  by  the  Constitution,  or  which  are  contrary  to  its 
spirit." 

Ml".  Justice  Campbell:  ''I  look  in  vain,  among  the  discussions  of 
the  time,  for  the  assertion  of  a  supreme  sovereignty  for  Congress  over 
the  territory  then  belonging  to  the  United  States  or  that  they  might 
thereafter  acquire.  I  seek  in  vain  for  an  annunciation  that  a  consoli- 
dated power  had  been  inaugurated,  whose  subject  comprehended  an 
empire,  and  which  had  no  restriction  but  the  discretion  of  Congress." 

Chief  Justice  Taney :  "  The  powers  over  person  and  property  of 
which  we  speak  are  not  only  not  granted  to  Congress,  but  are  in 
express  terms  denied,  and  they  are  forbidden  to  exercise  them.  And 
this  prohibition  is  not  confined  to  the  States,  but  the  words  are  gen- 
eral, and  extend  to  the  whole  territory  over  which  the  Constitution 
gives  it  power  to  legislate,  including  those  portions  of  it  remaining 
under  territorial  government,  as  well  as  that  covered  by  States.  It 
is  a  total  absence  of  power  everywhere  within  the  dominion  of  the 
United  States,  and  places  the  citizens  of  a  territory,  so  far  as  these 
rights  are  concerned,  on  the  same  footing  with  citizens  of  the  States, 
and  guards  them  as  firmly  and  plainly  against  any  inroads  which  the 


1204:      ADDITIONAL    CASES   RELATING   TO  ANNEXATION   OF   TERRITORY. 


general  government  might  attempt  under  the  plea  of  implied  or  inci- 
dental powers." 

Many  of  the  later  cases  were  brought  from  territories  over  which 
Congress  had  professed  to  "extend  the  Constitution,"  or  from  the 
District  after  similar  provision,  but  the  decisions  did  not  rest  upon 
the  view  that  the  restrictions  on  Congress  were  self-imposed,  and 
might  be  withdrawn  at  the  pleasure  of  that  body. 

Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  [956],  is  a  fair  illustration, 
for  it  was  there  ruled,  citing  Webster  v.  Eeid,  11  How.  437,  Callan 
V.  Wilson,  127  U.  S.  550  [834],  Thompson  v.  Utah,  170  U.  S.  343 
[831],  that  "it  is  beyond  doubt,  at  the  present  day,  that  the  provi- 
sions of  the  Constitution  of  the  United  States  securing  the  right  of 
trial  by  jury,  whether  in  civil  or  in  criminal  cases,  are  applicable  to 
the  District  of  Columbia." 

No  reference  whatever  was  made  to  §  34  of  the  act  of  February 
21,  1871  (16  Stat.  419,  chap.  62),  which,  in  providing  for  the  election 
of  a  delegate  for  the  District,  closed  with  the  words :  **  The  person 
having  the  greatest  number  of  legal  votes  shall  be  declared  by  the 
governor  to  be  duly  elected,  and  a  certificate  thereof  shall  be  given 
accordingly  ;  and  the  Constitution  and  all  laws  of  the  United  States, 
which  are  not  locally  inapplicable,  shall  have  the  same  force  and  effect 
within  the  said  District  of  Columbia  as  elsewhere  within  the  United 
States." 

Nor  did  the  court  in  Bauman  v.  Eoss,  167  U.  S.  548  [1059],  attrib- 
ute the  application  of  the  Fifth  Amendment  to  the  act  of  Congress, 
although  it  was  cited  to  another  point. 

The  truth  is  that,  as  Judge  Edmunds  wrote,  "the  instances  in 
which  Congress  has  declared,  in  statutes  organizing  territories,  that 
the  Constitution  and  laws  should  be  in  force  there,  are  no  evidence 
that  they  were  not  already  there,  for  Congress  and  all  legislative 
bodies  have  often  made  enactments  that  in  effect  merely  declared 
existing  law.  In  such  cases  the}^  declare  a  pre-existing  truth  to  ease 
the  doubts  of  casuists."     Cong.  Rec.  56th  Cong.  1st  Sess.,  p.  3507. 

In  Callan  v.  Wilson,  127  U.  S.  540  [834],  which  was  a  criminal 
prosecution  in  the  District  of  Columbia,  Mr.  Justice  Harlan,  speaking 
for  the  court,  said :  "  There  is  nothing  in  the  history  of  the  Constitu- 
tion or  of  the  original  amendments  to  justify  the  assertion  that  the 
people  of  this  District  may  be  lawfully  deprived  of  the  benefit  of  any 
of  the  constitutional  guaranties  of  life,  liberty,  and  property  — 
especially  of  the  privilege  of  trial  by  jury  in  criminal  cases."  And 
further:  "We  cannot  think  that  the  people  of  this  District  have,  in 
that  regard,  less  rights  than  those  accorded  to  the  people  of  the  ter- 
ritories of  the  United  States." 

In  Thompson  v.  Utah,  170  U.  S.  343  [831],  it  was  held  that  a 
statute  of  the  State  of  Utah  providing  for  the  trial  of  criminal  cases 
other  than  capital,  by  a  jury  of  eight,  was  invalid  as  applied  on  a 
trial  for  a  crime  committed  before  Utah  was  admitted;  that  it  was 


DOWNES    V.    BIDWELL.  1205 

not  "  competent  for  the  State  of  Utah,  upon  its  admission  into  the 
Union,  to  do  in  respect  of  Thompson's  crime  what  the  United  States 
could  not  have  done  while  Utali  was  a  Territory;  "  and  that  an  act  of 
Congress  providing  for  a  trial  by  a  jury  of  eight  persons  in  the  Terri- 
tory of  Utah  would  have  been  in  conflict  with  the  Constitution. 

Article  6  of  the  Constitution  ordains  :  "  This  Constitution,  and 
the  laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof  and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land." 

And,  as  Mr.  Justice  Curtis  observed  in  United  States  v.  Morris,  1 
Curt.  23,  50,  "  nothing  can  be  clearer  than  the  intention  to  have  the 
Constitution,  laws,  and  treaties  of  the  United  States  in  equal  force 
throughout  every  part  of  the  territory  of  the  United  States,  alike  in 
all  places,  at  all  times." 

But  it  is  said  that  an  opposite  result  will  be  reached  if  the  opinion 
of  Chief  Justice  Marshall  in  American  Ins.  Co.  v.  Canter,  1  Pet.  511 
[827],  be  read  "  in  connection  with  Art.  Ill,  §§  1  and  2  of  the  Constitu- 
tion, vesting  'the  judicial  power  of  the  United  States'  in  'one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  judges,  both  of  the  Supreme 
and  inferior  courts,  shall  hold  their  offices  during  good  behavior,' " 
etc.  And  it  is  argued  :  '•'  As  the  only  judicial  power  vested  in  Con- 
gress is  to  create  courts  whose  judges  shall  hold  their  offices  during 
good  behavior,  it  necessarily  follows  that,  if  Congress  authorizes  the 
creation  of  courts  and  the  appointment  of  judges  for  a  limited  time, 
it  must  act  independently  of  the  Constitution,  and  upon  territory 
which  is  not  part  of  the  United  States  within  the  meaning  of  the 
Constitution." 

And  further,  that  if  the  territories  "  be  a  part  of  the  United  States, 
it  is  difficult  to  see  how  Congress  could  create  courts  in  such  terri- 
tories, except  under  the  judicial  clause  of  the  Constitution." 

By  the  ninth  clause  of  section  8  of  Article  I,  Congress  is  vested 
with  power  "  to  constitute  tribunals  inferior  to  the  Supreme  Court," 
while  by  section  1  of  Article  III  the  power  is  granted  to  it  to  estab- 
lish inferior  courts  in  which  the  judicial  power  of  the  government 
treated  of  in  that  article  is  vested. 

That  power  was  to  be  exerted  over  the  controversies  therein  named, 
and  did  not  relate  to  the  general  administration  of  justice  in  the  ter- 
ritories, which  was  committed  to  courts  established  as  part  of  the 
territorial  government. 

What  the  Chief  Justice  said  was  (p.  54G)  :  "These  courts,  then,  are 
not  constitutional  courts,  in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  general  government  can  be  deposited.  They  are 
incapable  of  receiving  it.  They  are  legislative  courts,  created  in 
virtue  of  the  general  right  of  sovereignty  which  exists  in  the  govern- 
ment, or  in  virtue  of  that  clause  which  enables  Congress  to  make  all 


1206      ADDITIONAL    CASES   RELATING   TO    ANNEXATION   OF   TERRITORY. 


needful  rules  and  regulations  respecting  the  territory  belonging  to  the 
United  States.  The  jurisdiction  with  which  they  are  invested  is  not 
a  part  of  that  judicial  power  which  is  defined  in  the  third  article  of  the 
Constitution,  but  is  conferred  by  Congress  in  the  execution  of  those 
general  powers  which  that  body  possesses  over  the  territories  of  the 
United  States." 

The  Cliief  Justice  was  dealing  with  the  subject  in  view  of  the 
nature  of  the  judicial  department  of  the  government  and  the  dis- 
tinction between  Federal  and  state  jurisdiction,  and  the  conclusion 
was,  to  use  the  language  of  Mr.  Justice  Harlan  in  McAllister  v. 
United  States,  141  U.  S.  174,  ''that  courts  in  the  territories,  created 
under  the  plenary  municipal  authority  that  Congress  possesses  over 
the  territories  of  the  United  States,  are  not  courts  of  the  United 
States  created  under  the  authority  conferred  by  that  article." 

But  it  did  not  therefore  follow  that  the  territories  were  not  parts 
of  the  United  States,  and  that  the  power  of  Congress  in  general  over 
them  was  unlimited;  nor  was  there  in  any  of  the  discussions  on  this 
subject  the  least  intimation  to  that  elfect. 

And  this  may  justly  be  said  of  expressions  in  some  other  cases 
supposed  to  give  color  to  this  doctrine  of  absolute  dominion  in  deal- 
ing with  civil  rights. 

In  Murphy  v.  Ramsey,  114  U.  S.  15,  Mr.  Justice  Matthews  said  : 
'•  The  personal  and  civil  rights  of  the  inhabitants  of  the  territories 
are  secured  to  them,  as  to  other  citizens,  by  the  principles  of  consti- 
tutional liberty  Avhich  restrain  all  the  agencies  of  government,  state 
and  national.  Their  political  rights  are  franchises,  which  they  hold 
as  privileges  in  the  legislative  discretion  of  the  Congress  of  the 
United  States." 

In  the  Mormon  Church  v.  United  States,  136  U.  S.  1,  44  [835],  Mr. 
Justice  Bradley  observed:  "Doubtless  Congress,  in  legislating  for 
the  territories,  would  be  subject  to  those  fundamental  limitations  in 
favor  of  personal  rights  which  are  formulated  in  the  Constitution  and 
its  amendments  ;  but  these  limitations  would  exist  rather  by  inference 
and  the  general  spirit  of  the  Constitution,  from  which  Congress  de- 
rives all  its  powers,  than  by  any  express  and  direct  application  of  its 
provisions." 

That  able  judge  was  referring  to  the  fact  that  the  Constitution  does 
not  expressly  declare  that  its  prohibitions  operate  on  the  power  to 
govern  the  territories,  but,  because  of  the  implication  that  an  express 
provision  to  that  effect  might  be  essential,  three  members  of  the 
court  were  constrained  to  dissent,  regarding  it,  as  was  said,  "of  vital 
consequence  that  absolute  power  should  never  be  conceded  as  belong- 
ing under  our  system  of  government  to  any  one  of  its  departments." 

What  was  ruled  in  Murphy  v.  Ramsey  is  that  in  places  over 
which  Congress  has  exclusive  local  jurisdiction  its  power  over  the 
political  status  is  plenary. 

IMuch  discussion  was  had  at  the  bar  in  respect  of  the  citizenship  of 


DOWNES   V.    BIDWELL.  1207 

the  inhabitants  of  Porto  Rico,  but  we  are  not  required  to  consider 
that  subject  at  large  in  these  cases.  It  will  be  time  enough  to  seek 
a  ford  when,  if  ever,  we  are  brought  to  the  stream. 

Yet  although  we  are  confined  to  the  question  of  the  validity  of  cer- 
tain duties  imposed  after  the  organization  of  Porto  Kico  as  a  territory 
of  the  United  States,  a  few  observations  and  some  references  to  ad- 
judged cases  may  well  enough  be  added  in  view  of  the  line  of  argu- 
ment pursued  in  the  concurring  opinion. 

In  American  Ins.  Co.  v.  Canter,  1  Pet.  511,  541  [827]  —  in  which, 
by  the  way,  the  court  did  not  accept  the  views  of  ^Ir.  Justice  Johnson 
in  the  circuit  Court  or  of  Mr.  Webster  in  argument  —  Chief  Justice 
Marshall  said :  "  The  course  which  the  argument  has  taken  will  re- 
quire that  in  deciding  this  question  the  court  should  take  into  view 
the  relation  in  which  Florida  stands  to  the  United  States.  The  Con- 
stitution confers  absolutely  on  the  government  of  the  Union  the 
powers  of  making  war  and  of  making  treaties ;  consequently  that 
government  possesses  the  power  of  acquiring  territory,  either  by  con- 
quest or  by  treaty.  The  usage  of  the  world  is,  if  a  nation  be  not 
entirely  subdued,  to  consider  the  holding  of  conquered  territory  as  a 
mere  inilitary  occupation  until  its  fate  shall  be  determined  at  the 
treaty  of  peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  con- 
firmed, and  the  ceded  territory  becomes  a  part  of  the  nation  to  which 
it  is  annexed,  either  on  the  terms  stipulated  in  the  treaty  of  cession, 
or  on  such  as  its  new  master  shall  impose.  On  such  transfer  of  ter- 
ritory, it  has  never  been  held  that  the  relations  of  the  inhabitants 
with  each  other  undergo  any  change.  Their  relations  with  their  for- 
mer sovereign  are  dissolved,  and  new  relations  are  created  between 
them  and  the  government  which  has  acquired  their  territory.  The 
same  act  which  transfers  their  country  transfers  the  allegiance  of 
those  who  remain  in  it;  and  the  law,  which  may  be  denominated 
political,  is  necessarily  changed,  although  that  which  regulates  the 
intercourse  and  general  conduct  of  individuals  remains  in  force  until 
altered  by  the  newly  created  power  of  the  State.  On  the  2d  of 
February,  1819,  Spain  ceded  Florida  to  the  United  States.  The  sixth 
article  of  the  treaty  of  cession  contains  the  following  provision  : 
'  The  inhabitants  of  the  territories  which  his  Catholic  Majesty  cedes 
to  the  United  States  by  this  treaty  shall  be  incorporated  in  the 
Union  of  the  United  States  as  soon  as  may  be  consistent  with  the 
principles  of  the  Federal  Constitution,  and  admitted  to  the  enjoyment 
of  the  privileges,  rights,  and  immunities  of  the  citizens  of  the  United 
States.'  This  treaty  is  the  law  of  the  land,  and  admits  the  inliabitants 
of  Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States.  It  is  unnecessary  to  inquire 
whether  this  is  not  their  condition  independent  of  stipulation.  They 
do  not,  however,  participate  in  political  power ;  they  do  not  share  in 
the  government  till  Florida  shall  become  a  State.  In  the  meantime, 
Florida  continues  to  be  a  territory  of  the  United  States ;  governed 


1208      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 


by  virtue  of  that  clause  in  the  Constitution  which  empowers  Congress 
'  to  make  all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States.'  Perhaps  the  power 
of  governing  a  Territory  belonging  to  the  United  States,  which  has 
not,  by  becoming  a  State,  acquired  the  means  of  self-government, 
may  result  necessarily  from  the  facts  that  it  is  not  within  the  juris- 
diction of  any  particular  State,  and  is  within  the  power  and  jurisdic- 
tion of  the  United  States.  The  right  to  govern  may  be  the  inevitable 
consequence  of  the  right  to  acquire  territory.  Whichever  may  be 
the  source  whence  the  power  is  derived,  the  possession  of  it  is 
unquestioned." 

General  Halleck  (International  Law,  1st  ed.  chap.  33,  §  14),  after 
quoting  from  Chief  Justice  Marshall,  observed  : 

"  This  is  now  a  well-settled  rule  of  the  law  of  nations,  and  is  uni- 
versally admitted.  Its  provisions  are  clear  and  simple  and  easily  un- 
derstood ;  but  it  is  not  so  easy  to  distinguish  between  what  are  -po- 
litical and  what  are  municipal  laws,  and  to  determine  when  and  how 
far  the  constitution  and  laws  of  the  conqueror  change  or  replace 
those  of  the  conquered.  And  in  case  the  government  of  the  new 
state  is  a  constitutional  government,  of  limited  and  divided  powers, 
questions  necessarily  arise  respecting  the  authority,  which,  in  the 
absence  of  legislative  action,  can  be  exercised  in  the  conquered  terri- 
tory after  the  cessation  of  war  and  the  conclusion  of  a  treaty  of  peace. 
The  determination  of  these  questions  depends  upon  the  institutions 
and  laws  of  the  new  sovereign,  which,  though  conformable  to  the 
general  rule  of  the  law  of  nations,  affect  the  construction  and  appli- 
cation of  that  rule  to  particular  cases." 

In  United  States  v.  Percheman,  7  Pet.  51, 87,  the  Chief  Justice  said  : 

''The  people  change  their  allegiance;  their  relation  to  their  an- 
cient sovereign  is  dissolved  ;  but  their  relations  to  each  other,  and 
their  rights  of  property,  remain  undisturbed.  If  this  be  the  modern 
rule  even  in  cases  of  conquest,  who  can  doubt  its  application  to  the 
case  of  an  amicable  cession  of  territory  ?  .  .  .  The  cession  of  a  terri- 
tory by  its  name  from  one  sovereign  to  another,  conveying  the  com- 
pound idea  of  surrendering  at  the  same  time  the  lands  and  the  people 
who  inhabit  them,  would  be  necessarily  understood  to  pass  the  sov- 
ereignty only,  and  not  to  interfere  with  private  property." 

Again,  the  court  in  Pollard  v.  Hagan,  3  How.  212,  225,  said  : 

"  Every  nation  acquiring  territory,  by  treaty  or  otherwise,  must 
hold  it  subject  to  the  constitution  and  laws  of  its  own  government, 
and  not  according  to  those  of  the  government  ceding  it." 

And  in  Chicago,  E.  I.  &  P.  R.  Co.  v.  McGlinn,  114  U.  S.  546:  "It 
is  a  general  rule  of  public  law,  recognized  and  acted  upon  by  the 
United  States,  that  whenever  political  jurisdiction  and  legislative 
power  over  any  territory  are  transferred  from  one  nation  or  sovereign 
to  another,  the  municipal  laws  of  the  country,  that  is,  laws  which  are 
intended  for  the  protection  of  private  rights,  continue  in  force  until 


DOWNES   V.    BIDWELL.  1209 

abrogated  or  changed  by  the  new  government  or  sovereign.  By  the 
cession,  public  property  passes  from  one  government  to  the  other, 
but  private  property  remains  as  before,  and  with  it  those  municipal 
laws  which  are  designed  to  secure  its  peaceful  use  and  enjoyment. 
As  a  matter  of  course,  all  laws,  ordinances,  and  regulations  in  con- 
flict with  the  political  character,  institutions,  and  constitution  of  the 
new  government  are  at  once  displaced.  Thus,  upon  a  cession  of 
political  jurisdiction  and  legislative  power  —  and  the  latter  is  in- 
volved in  the  former  —  to  the  United  States,  the  laws  of  the  country 
in  support  of  an  established  religion,  or  abridging  the  freedom  of  the 
press,  or  authorizing  cruel  and  unusual  punishments,  and  the  like, 
would  at  once  cease  to  be  of  obligatory  force  without  any  declaration 
to  that  effect ;  and  the  laws  of  the  country  on  other  subjects  would 
necessarily  be  superseded  by  existing  laws  of  the  new  government 
upon  the  same  matters.  But  with  respect  to  other  laws  affecting  the 
possession,  use,  and  transfer  of  property,  and  designed  to  secure  good 
order  and  peace  in  the  community,  and  promote  its  health  and  pros- 
perity, which  are  strictly  of  a  municipal  character,  the  rule  is  general 
that  a  change  of  government  leaves  them  in  force  until,  by  direct 
action  of  the  new  government,  they  are  altered  or  repealed." 

When  a  cession  of  territory  to  the  United  States  is  completed  by 
the  ratification  of  a  treaty,  it  was  stated  in  Cross  v.  Harrison,  16 
How.  164, 198,  that  the  land  ceded  becomes  a  part  of  the  United  States, 
and  that,  as  soon  as  it  becomes  so,  the  territory  is  subject  to  the  acts 
■which  were  in  force  to  regulate  foreign  commerce  with  the  United 
States,  after  those  had  ceased  which  had  been  instituted  for  its  regu- 
lation as  a  belligerent  right ;  and  the  latter  ceased  after  the  ratifica- 
tion of  the  treaty.  This  statement  was  made  by  the  Justice  deliver- 
ing the  opinion,  as  the  result  of  the  discussion  and  argument  which 
he  had  already  set  forth.  It  was  his  summing  up  of  what  he  sup- 
posed was  decided  on  that  subject  in  the  case  in  which  he  was  writing. 

The  new  master  was,  in  the  instance  of  Porto  Rico,  the  United 
States,  a  constitutional  government  with  limited  powers,  and  the 
terras  which  the  Constitution  itself  imposed,  or  wliich  might  be  im- 
posed in  accordance  with  the  Constitution,  were  the  terms  on  which 
the  new  master  took  possession. 

The  power  of  the  United  States  to  acquire  territory  by  conquest, 
by  treaty,  or  by  discovery  and  occupation,  is  not  disputed,  nor  is  the 
proposition  that  in  all  international  relations,  interests,  and  responsi- 
bilities the  United  States  is  a  separate,  independent,  and  sovereign 
nation  ;  but  it  does  not  derive  its  powers  from  international  law, 
which,  though  a  part  of  our  municipal  law,  is  not  a  part  of  the  or- 
ganic law  of  the  land.  The  source  of  national  power  in  this  country 
is  the  Constitution  of  the  United  States ;  and  the  government,  as  to 
our  internal  affairs,  possesses  no  inlierent  sovereign  power  not  de- 
rived from  that  instrument,  and  inconsistent  with  its  letter  and  spirit. 

Doubtless  the  subjects  of  the  former  sovereign  are  brought  by  the 


1210      ADDITIONAL   CASES    RELATING    TO    ANNEXATION   OP   TERRITORY. 

transfer  under  the  protection  of  the  acquiring  power,  and  are  so  far 
forth  impressed  with  its  nationality,  but  it  does  not  follow  that  they 
necessarily  acquire  the  full  status  of  citizens.  The  ninth  article  of  the 
treaty  ceding  Porto  Rico  to  the  United  States  provided  that  Spanish 
subjects,  natives  of  the  peninsula,  residing  in  the  ceded  territory, 
might  remain  or  remove,  and  in  case  they  remained  might  preserve 
their  allegiance  to  the  Crown  of  Spain  by  making  a  declaration  of 
their  decision  to  do  so,  "  in  default  of  which  declaration  they  shall 
be  held  to  have  renounced  it  and  to  have  adopted  the  nationality  of 
the  territory  in  which  they  reside." 

The  same  article  also  contained  this  paragraph :  "  The  civil  rights 
and  political  status  of  the  native  inhabitants  of  the  territories  hereby 
ceded  to  the  United  States  shall  be  determined  by  Congress."  This 
was  nothing  more  than  a  declaration  of  the  accepted  principles  of 
international  law  applicable  to  the  status  of  the  Spanish  subjects  and 
of  the  native  inhabitants.  It  did  not  assume  that  Congress  could  de- 
prive the  inhabitants  of  ceded  territory  of  rights  to  which  they  might 
be  entitled.  The  grant  by  Spain  could  not  enlarge  the  powers  of 
Congress,  nor  did  it  purport  to  secure  from  the  United  States  a  guar- 
anty of  civil  or  political  privileges. 

Indeed,  a  treaty  which  undertook  to  take  away  what  the  Constitu- 
tion secured,  or  to  enlarge  the  Federal  jurisdiction,  would  be  simply 
void. 

"'  It  need  hardly  be  said  that  a  treaty  cannot  change  the  Constitu- 
tion, or  be  held  valid  if  it  be  in  violation  of  that  instrument.  This 
results  from  the  nature  and  fundamental  principles  of  our  govern- 
ment."    The  Cherokee  Tobacco,  11  Wall.  616,  620. 

So,  Mr.  Justice  Field  in  Geofroy  v.  Eiggs,  133  U.  S.  258,  267  [586/0  : 
**The  treaty  power,  as  expressed  in  the  Constitution,  is  in  terms  un- 
limited except  by  those  restraints  which  are  found  in  that  instrument 
against  the  action  of  the  government  or  of  its  departments,  and  those 
arising  from  the  nature  of  the  government  itself  and  of  that  of  the 
States.  It  would  not  be  contended  that  it  extends  so  far  as  to  author- 
ize what  the  Constitution  forbids,  or  a  change  in  the  character  of  the 
government  or  in  that  of  one  of  the  States,  or  a  cession  of  any  portion 
of  the  territory  of  the  latter,  without  its  consent." 

And  it  certainly  cannot  be  admitted  that  the  power  of  Congress  to 
lay  and  collect  taxes  and  duties  can  be  curtailed  by  an  arrangement 
made  with  a  foreign  nation  by  the  President  and  two  thirds  of  a  quo- 
rum of  the  Senate.  See  2  Tucker  on  the  Constitution,  §§  354,  355, 
356. 

In  the  language  of  Judge  Cooley :  "The  Constitution  itself  never 
yields  to  treaty  or  enactment ;  it  neither  changes  with  time  nor  does 
it  in  theory  bend  to  the  force  of  circumstances.  It  may  be  amended 
according  to  its  own  permission  ;  but  while  it  stands  it  is  'a  law  for 
rulers  and  people,  equally  in  war  and  in  peace,  and  covers  with  the 
shield  of  its  protection  all  classes  of  men,  at  all  times  and  under  all 


DOWXES    V.    BIDWELL.  1211 

circumstances.'  Its  principles  cannot,  therefore,  be  set  aside  in  order 
to  meet  the  supposed  necessities  of  great  crises.  '  No  doctrine  involv- 
ing more  pernicious  consequences  was  ever  invented  by  the  wit  of 
man  than  that  any  of  its  provisions  can  be  suspended  during  any  of 
the  great  exigencies  of  government.'" 

I  am  not  intimating  in  the  least  degree  that  any  reason  exists  for 
regarding  this  article  to  be  unconstitutional,  but  even  if  it  were,  the 
fact  of  the  cession  is  a  fact  accomplished,  and  this  court  is  concerned 
only  with  the  question  of  the  [)Ower  of  the  government  in  laying  du- 
ties in  respect  of  commerce  with  the  territory  so  ceded. 

In  the  concurring  opinion  of  Mr.  Justice  White,  we  find  certain 
important  propositions  conceded,  some  of  which  are  denied  or  not 
admitted  in  the  other.  These  are  to  the  effect  that  "  when  an  act  of 
any  department  is  challenged  because  not  warranted  by  the  Constitu- 
tion, the  existence  of  the  authority  is  to  be  ascertained  by  deterniin- 
ing  whether  the  power  has  been  conferred  by  the  Constitution,  either 
in  express  terms  or  by  lawful  implication  ;"  that,  as  every  function 
of  the  government  is  derived  from  the  Constitution,  "  that  instrument 
is  everywhere  and  at  all  times  potential  in  so  far  as  its  provisions  are 
applicable ;  "  that  "  wherever  a  power  is  given  by  the  Constitution, 
and  there  is  a  limitation  imposed  on  the  authority,  such  restriction 
operates  upon  and  confines  every  action  on  the  subject  within  its  con- 
stitutional limits  ;  "  that  where  conditions  are  brought  about  to  which 
any  particular  provision  of  the  Constitution  applies,  its  controlling 
influence  cannot  be  frustrated  by  the  action  of  any  or  all  of  the  de- 
partments of  the  government;  that  the  Constitution  has  conferred  on 
Congress  the  right  to  create  such  municipal  organizations  as  it  may 
deem  best  for  all  the  territories  of  the  United  States,  but  every  appli- 
cable express  limitation  of  the  Constitution  is  in  force,  and  even  where 
thfere  is  no  express  command  which  api)lies,  there  may  nevertheless 
be  restrictions  of  so  fundamental  a  nature  that  they  cannot  be  trans- 
gressed though  not  expressed  in  so  many  words  ;  that  every  provision 
of  the  Constitution  which  is  applicable  to  the  Territories  is  controlling 
therein,  and  all  the  limitations  of  the  Constitution  applicable  to  Con- 
gress  in  governing  the  territories  necessarily  limit  its  power;  tliat  in 
tlie  case  of  the  territories,  when  a  provision  of  the  Constitution  is  in- 
voked, the  question  is  whether  the  provision  relied  on  is  applicable  ; 
and  that  the  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, as  well  as  the  qualification  of  uniformity,  restrains  Congress 
from  imposing  an  impost  duty  on  goods  coming  into  the  United  States 
from  a  territory  which  has  been  incorporated  into  and  forms  a  part  of 
the  United  States. 

And  it  is  said  that  the  determination  of  whether  a  particular  pro- 
vision is  applicable  involves  an  inquiry  into  the  situation  of  the  ter- 
ritory and  its  relations  to  the  United  States,  although  it  does  not 
follow,  when  the  Constitution  has  withheld  all  power  over  a  given 
subject,  that  such  an  inquiry  is  necessary. 


1212       ADDITIONAL    CASES    RELATING    TO  ANNEXATION    OF    TERRITORY. 


The  inquiry  is  stated  to  be  :  "^  Had  Porto  Kico,  at  the  time  of  the 
passage  of  the  act  in  question,  been  incorporated  into  and  become  an 
integral  part  of  the  United  States  ?  "  And  the  answer  being  given 
that  it  had  not,  it  is  hekl  that  the  rule  of  uniformity  was  not  appli- 
cable. 

I  submit  that  that  is  not  the  question  in  this  case.  The  question 
is  whether,  when  Congress  has  created  a  civil  government  for  Porto 
Rico,  has  constituted  its  inhabitants  a  body  politic,  has  given  it  a  gov- 
ernor and  other  officers,  a  legislative  assembly,  and  courts,  with  right 
of  appeal  to  this  court,  Congress  can,  in  the  same  act  and  in  the  ex- 
ercise of  the  power  conferred  by  the  first  clause  of  section  eight,  im- 
pose duties  on  the  commerce  between  Porto  Rico  and  the  States  and 
other  territories  in  contravention  of  the  rule  of  uniformity  qualifying 
the  power.  If  this  can  be  done,  it  is  because  the  power  of  Congress 
over  commerce  between  the  States  and  any  of  the  territories  is  not 
restricted  by  the  Constitution.  This  was  the  position  taken  by  the 
Attorney  General,  with  a  candor  and  ability  that  did  him  great  credit. 

But  that  position  is  rejected,  and  the  contention  seems  to  be  that, 
if  an  organized  and  settled  province  of  another  sovereignty  is  ac- 
quired by  the  United  States,  Congress  has  the  power  to  keep  it,  like 
a  disembodied  shade,  in  an  intermediate  state  of  ambiguous  existence 
for  an  indefinite  period ;  and,  more  than  that,  that  after  it  has  been 
called  from  that  limbo,  commerce  with  it  is  absolutely  subject  to  the 
will  of  Congress,  irrespective  of  constitutional  provisions. 

The  accuracy  of  this  view  is  supposed  to  be  sustained  by  the  act  of 
1856  in  relation  to  the  protection  of  citizens  of  the  United  States  re- 
moving guano  from  unoccupied  islands  ;  but  I  am  unable  to  see  why 
the  discharge  by  the  United  States  of  its  undoubted  duty  to  protect 
its  citizens  on  terra  nullius,  whether  temporarily  engaged  in  catching 
and  curing  fish,  or  working  mines,  or  taking  away  manure,  furnishes 
support  to  the  proposition  that  the  power  of  Congress  over  the  Terri- 
tories of  the  United  States  is  unrestricted. 

Great  stress  is  thrown  upon  the  word  "  incorporation,"  as  if  pos- 
sessed of  some  occult  meaning,  but  I  take  it  that  the  act  under 
consideration  made  Porto  Rico,  whatever  its  situation  before,  an 
organized  territory  of  the  United  States.  Being  such,  and  the  act 
undertaking  to  impose  duties  by  virtue  of  clause  1  of  sec.  8,  how  is  it 
that  the  rule  which  qualifies  the  power  does  not  apply  to  its  exercise 
in  respect  of  commerce  with  that  ten-itory  ?  The  power  can  only  be 
exercised  as  prescribed,  and  even  if  the  rule  of  uniformity  could  be 
treated  as  a  mere  regulation  of  the  granted  power — a  suggestion  to 
which  I  do  not  assent  —  the  validity  of  these  duties  comes  up  directly, 
and  it  is  idle  to  discuss  the  distinction  between  a  total  want  of  power 
and  a  defective  exercise  of  it. 

The  concurring  opinion  recognizes  the  fact  that  Congress,  in 
dealing  with  the  people  of  new  territories  or  possessions,  is  bound 
to  respect  the  fundamental  guaranties  of  life,  liberty,  and  property, 


DOWNES   V.    BIDWELL.  1213 

but  assumes  that  Congress  is  not  bound,  in  those  territories  or  pos- 
sessions, to  follow  the  rules  of  taxation  prescribed  by  the  Constitu- 
tion. And  yet  the  power  to  tax  involves  the  power  to  destroy,  and 
the  levy  of  duties  touches  all  our  people  in  all  places  under  the  juris- 
diction of  the  government. 

The  logical  result  is  that  Congress  may  prohibit  commerce  altogether 
between  the  States  and  territories,  and  may  prescribe  one  rule  of 
taxation  in  one  territory,  and  a  different  rule  in  another. 

That  theory  assumes  that  the  Constitution  created  a  government 
empowered  to  acquire  countries  throughout  the  world,  to  be  governed 
by  different  rules  than  those  obtaining  in  the  original  States  and  ter- 
ritories, and  substitutes  for  the  present  system  of  republican  govern- 
ment a  system  of  domination  over  distant  provinces  in  the  exercise  of 
unrestricted  power. 

In  our  judgment,  so  much  of  the  Porto  Rican  act  as  authorized  the 
imposition  of  these  duties  is  invalid,  and  plaintiffs  were  entitled  to 
recover. 

Some  argument  was  made  as  to  general  consequences  apprehended 
to  flow  from  this  result,  but  the  language  of  the  Constitution  is  too 
plain  and  unambiguous  to  permit  its  meaning  to  be  thus  influenced. 
There  is  nothing  "  in  the  literal  construction  so  obviously  absurd,  or 
mischievous,  or  repugnant  to  the  general  spirit  of  the  instrument  as 
to  justify  those  who  expound  the  Constitution"  in  giving  it  a  con- 
struction not  warranted  by  its  words. 

Briefs  have  been  presented  at  this  bar,  purporting  to  be  on  behalf 
of  certain  industries,  and  eloquently  setting  forth  the  desirability  that 
our  government  should  possess  the  power  to  impose  a  tariff  on  the 
products  of  newly  acquired  territories  so  as  to  diminish  or  remove 
competition.  That,  however,  furnishes  no  basis  for  judicial  judg- 
ment, and  if  the  producers  of  staples  in  the  existing  States  of  this 
Union  believe  the  Constitution  should  be  amended  so  as  to  reach  that 
result,  the  instrument  itself  provides  how  such  amendment  can  be 
accomplished.  The  people  of  all  the  States  are  entitled  to  a  voice  in 
the  settlement  of  that  subject. 

Again,  it  is  objected  on  behalf  of  the  government  that  the  posses- 
sion of  absolute  power  is  essential  to  the  acquisition  of  vast  and  dis- 
tant territories,  and  that  we  should  regard  the  situation  as  it  is  to-day, 
rather  than  as  it  was  a  century  ago.  "  We  must  look  at  the  situation 
as  comprehending  a  possibility  —  I  do  not  say  a  probability,  but  a 
possibility  —  that  the  question  might  be  as  to  the  powers  of  this  gov- 
ernment in  the  acquisition  of  Egypt  and  the  Soudan,  or  a  section  of 
Central  Africa,  or  a  spot  in  the  Antarctic  Circle,  or  a  section  of  the 
Chinese  Empire." 

But  it  must  be  remembered  that,  as  Marshall  and  Story  declared, 
the  Constitution  was  framed  for  ages  to  come,  and  that  the  sagacious 
men  who  framed  it  were  well  aware  that  a  mighty  future  waited  on 
their  work.     The  rising  sun  to  which  Franklin  referred  at  the  close 


1214      ADDITIONAL    CASES    RELATING   TO    ANNEXATION    OF   TERRITORY. 

of  the  convention,  they  well  knew,  was  that  star  of  empire  whose 
course  Berkeley  had  sung  sixty  years  before. 

They  may  not,  indeed,  have  deliberately  considered  a  triumphal 
progress  of  the  nation,  as  such,  around  the  earth,  but  as  Marshall 
wrote  :  "  It  is  not  enough  to  say  that  this  particular  case  was  not  in 
the  mind  of  the  convention  when  the  article  was  framed,  nor  of  the 
American  people  when  it  was  adopted.  It  is  necessary  to  go  farther, 
and  to  say  that,  had  this  particular  case  been  suggested,  the  language 
would  have  been  so  varied  as  to  exclude  it,  or  it  would  have  been 
made  a  special  exception." 

This  cannot  be  said,  and  on  the  contrary,  in  order  to  the  successful 
extension  of  our  institutions,  the  reasonable  presumption  is  that  the 
limitations  on  the  exertion  of  arbitrary  power  would  have  been  made 
more  rigorous. 

After  all,  these  arguments  are  merely  political,  and  "  political 
reasons  have  not  the  requisite  certainty  to  afford  rules  of  judicial 
interpretation." 

Congress  has  power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  all  the  powers  vested  by  the  Con- 
stitution in  the  government  of  the  United  States  or  in  any  department 
or  officer  thereof.  If  the  end  be  legitimate  and  within  the  scope  of 
the  Constitution,  then,  to  accomplish  it,  Congress  may  use  "  all  means 
which  are  appropriate,  which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  consistent  with  the  letter  and  spirit  of  the 
Constitution." 

The  grave  duty  of  determining  whether  an  act  of  Congress  does 
or  does  not  comply  with  these  requirements  is  only  to  be  discharged 
by  applying  the  well-settled  rules  which  govern  the  interpretation 
of  fundamental  law,  unaffected  by  the  theoretical  opinions  of 
individuals. 

Tested  by  those  rules  our  conviction  is  that  the  imposition  of  these 
duties  cannot  be  sustained. 

Mr.  Justice  Harlan,  dissenting  : 

I  concur  in  the  dissenting  opinion  of  the  Chief  Justice.  The 
grounds  upon  which  he  and  Mr.  Justice  Brewer  and  Mr.  Justice 
Peckham  regard  the  Foraker  act  as  unconstitutional  in  the  particulars 
involved  in  this  action  meet  my  entire  approval.  Those  grounds 
need  not  be  restated,  nor  is  it  necessary  to  re-examine  the  authori- 
ties cited  by  the  Chief  Justice.  I  agree  in  holding  that  Porto  Eico  — 
at  least  after  the  ratification  of  the  treaty  with  Spain  —  became  a 
part  of  the  United  States  within  the  meaning  of  the  section  of  the 
Constitution  enumerating  the  powers  of  Congress,  and  providing  that 
"  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States.'''' 

In  view,  however,  of  the  importance  of  the  questions  in  this  case, 
and  of  the  consecpiences  tliat  will  follow  any  conclusion  reached  by 
the  court,  I  deem  it  appropriate  —  without  rediscussing  the  principal 


DOWNES   V.   BIDWELL.  1-215 

questions  presented  —  to  add  some  observations  suggested  by  certain 
passages  in  opinions  just  delivered  in  support  of  the  judgment. 

In  one  of  those  opinions  it  is  said  that  "  tne  Constitution  was  created 
by  the  people  of  the  United  States,  as  a  union  of  States,  to  be  governed 
solely  by  representatives  of  the  States  ;''  also,  that  "  we  tind  the  Con- 
stitution speaking  onl//  to  States,  except  in  the  territorial  clause, 
which  is  absolute  in  its  terms,  and  suggestive  of  no  limitations  ui)on 
the  power  of  Congress  in  dealing  with  them."  I  am  not  sure  that 
I  correctly  interpret  these  words.  But  if  it  is  meant,  as  I  assume 
it  is  meant,  that,  with  the  exception  named,  the  Constitution  was 
ordained  by  the  States,  and  is  addressed  to  and  operates  only  on 
the  States,  I  cannot  accept  that  view. 

In  Martin  v.  Hunter,  1  Wheat.  304,  324,  326,  331  [746],  this 
court,  speaking  by  Mr.  Justice  Story,  said  that  "  the  Constitution 
of  the  United  States  was  ordained  and  established,  not  by  the  States 
in  their  sovereign  capacities  but  emphatically,  as  the  preamble  of  the 
Constitution  declares,  by  the  People  of  the  United  States." 

In  McCulloch  u.  Maryland,  4  Wheat.  316,  403-40G  [1],  Chief 
Justice  Marshall,  speaking  for  this  court,  said  :  "  The  government 
proceeds  directly  from  the  people;  is  'ordained  and  established'  in 
the  name  of  the  people ;  and  is  declared  to  be  ordained  '  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, and  secure  the  blessings  of  liberty  to  themselves  and 
their  posterity.'  The  assent  of  the  States,  in  their  sovereign  capac- 
ity, is  implied  in  calling  a  convention,  and  thus  submitting  that 
instrument  to  the  people.  But  the  people  were  at  perfect  liberty 
to  accept  or  reject  it ;  and  their  act  was  final.  It  required  not 
the  affirmance,  and  could  not  be  negatived,  by  the  State  governments. 
The  Constitution,  when  thus  adopted,  was  of  complete  obligation,  and 
bound  the  State  sovereignties.  .  .  .  The  government  of  the  union, 
then  (whatever  may  be  the  influence  of  this  fact  on  the  case)  is 
emphatically  and  truly  a  government  of  the  people.  In  form  and  in 
substance  it  emanates  from  them.  Its  powers  are  granted  by  thpm, 
and  are  to  be  exercised  directly  on  them  and  for  their  benefit.  This 
government  is  acknowledged  by  all  to  be  one  of  enumerated  powers. 
...  It  is  the  government  of  all;  its  powers  are  delegated  by  all;  it 
represents  all,  and  acts  for  all." 

Although  the  States  are  constituent  parts  of  the  United  States,  the 
Government  rests  upon  the  authority  of  the  people  of  the  United 
States,  and  not  on  that  of  the  States.  Chief  Justice  Marshall,  de- 
livering the  unanimous  judgment  of  this  court  in  Cohens  /•.  Virginia, 
6  Wheat.  264,  413  [691,  710],  said :  "  That  the  United  States  form, 
for  many  and  for  most  important  pur])Oses,  a  single  nation,  has  not 
yet  been  denied.  In  war,  we  are  one  people.  In  making  peace,  we 
are  one  people.  In  all  commercial  regulations,  we  are  one  and  the 
same  peoyjle.  In  many  other  repects,  the  American  people  are  one; 
and  the  Government  which  is  alone  capable  of  controlling  and  manag- 


1216      ADDITIONAL    CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

ing  their  intevest?s  in  all  these  respects  is  the  Government  of  the 
Union,  It  is  their  Government,  and  in  that  character  they  have  no 
other.  America  has  chosen  to  be,  in  many  respects  and  to  many  pur- 
poses, a  nation  ;  and  for  all  these  purposes  her  Government  is  com- 
plete ;  to  all  these  objects  it  is  competent.  The  people  have  declared 
that  in  tlie  exercise  of  all  powers  given  for  those  objects  it  is  supreme. 
It  can,  then,  in  effecting  these  objects,  legitimately^  control  all  indi- 
viduals or  governments  within  the  American  territory." 

In  reference  to  the  doctrine  that  the  Constitution  was  established 
by  and  for  the  States  as  distinct  political  organizations,  Mr.  Webster 
said  :  "  The  Constitution  itself  in  its  very  front  refutes  that.  It  de- 
clares that  it  is  ordained  and  established  by  the  People  of  the  United 
States.  So  far  from  saying  that  it  is  established  by  the  governments 
of  the  several  States,  it  does  not  even  say  that  it  is  established  by  the 
people  of  the  several  States.  But  it  pronounces  that  it  was  estab- 
lished by  the  people  of  the  United  States  in  the  aggregate.  Doubt- 
less, the  people  of  the  several  States,  taken  collectively,  constitute 
the  people  of  the  United  States.  But  it  is  in  this  their  collective  cap- 
acity, it  is  as  all  the  people  of  the  United  States,  that  they  established 
the  Constitution." 

In  view  of  the  adjudications  of  this  court  I  cannot  assent  to  the 
proposition,  whether  it  be  announced  in  express  words  or  by  impli- 
cation, that  the  National  Government  is  a  government  of  or  by  the 
States  in  union,  and  that  the  prohibitions  and  limitations  of  the  Con- 
stitution are  addressed  only  to  the  States.  That  is  but  another  form 
of  saying  that,  like  the  government  created  by  the  Articles  of  Con- 
federation, the  present  government  is  a  mere  league  of  States,  held 
together  by  compact  between  themselves ;  whereas,  as  this  court  has 
often  declared,  it  is  a  Government  created  by  the  People  of  the 
United  States,  with  enumerated  powers,  and  supreme  over  States  and 
individuals  with  respect  to  certain  objects,  throughout  the  entire 
territory  over  which  its  jurisdiction  extends.  If  the  National  Govern- 
ment is  in  any  sense  a  compact,  it  is  a  compact  between  the  People 
of  the  United  States  among  themselves  as  constituting  in  the  aggre- 
gate the  political  community  by  whom  the  National  Government  was 
established.  The  Constitution  speaks,  not  simply  to  the  States  in 
their  organized  capacities,  but  to  all  peoples,  whether  of  States  or 
territories,  who  are  subject  to  the  authority  of  the  United  States. 
Martin  v.  Hunter,  1  Wheat.  304,  327  [746]. 

In  the  opinion  to  which  I  am  referring  it  is  also  said  that  the 
"  practical  interpretation  put  by  Congress  upon  the  Constitution  has 
been  long  continued  and  uniform  to  the  effect  that  the  Constitution  is 
applicable  to  territories  acquired  by  purchase  or  conquest  only  when 
and  so  far  as  Congress  shall  so  direct ; "  that  while  all  power  of  gov- 
ernment may  be  abused,  the  same  may  be  said  of  the  power  of  the 
government  "  under  the  Constitution  as  well  as  outside  of  it ; "  that 
"if  it  once  be  conceded  that  we  are  at  liberty  to  acquire  foreign  terri- 


DOWNES   V.    BIDWELL.  1217 

tory,  a  presumption  arises  that  our  power  with  respect  to  such  terri- 
tories is  the  same  power  which  other  nations  have  been  accustomed  to 
exercise  with  respect  to  territories  acquired  by  them;"  that  "the 
liberality  of  Cojigress  in  legislating  the  Constitution  into  all  our 
contiguous  territories  has  undoubtedly  fostered  the  impression  that  it 
went  there  by  its  own  force,  but  there  is  nothing  in  the  Constitution 
itself  and  little  in  the  interpretation  put  upon  it,  to  confirm  that  im- 
pression ;  "  that  as  the  States  could  only  delegate  to  Congress  such 
powers  as  they  themselves  possessed,  and  as  they  had  no  power  to 
acquire  new  territory',  and  therefore  none  to  delegate  in  that  connec- 
tion, the  logical  inference  is  that  "  if  Congress  had  power  to  acquire 
new  territory,  which  is  conceded,  that  power  was  not  hampered  by 
the  constitutional  provisions  ;  "  that  if  "  we  assume  that  the  territorial 
clause  of  the  Constitution  was  not  intended  to  be  restricted  to  such 
territory  as  the  United  States  then  possessed,  there  is  nothing  in  the 
Constitution  to  indicate  that  the  power  of  Congress  in  dealing  with 
them  was  intended  to  be  restricted  by  any  of  the  other  provisions  ;  " 
and  that  "  the  executive  and  legislative  departments  of  the  govern- 
ment have  for  more  than  a  century  interpreted  this  silence  as  pre- 
cluding- the  idea  that  the  Constitution  attached  to  these  territories  as 
soon  as  acquired." 

These  are  words  of  weighty  import.  They  involve  consequences  of 
the  most  momentous  character.  I  take  leave  to  say  tliat  if  the 
principles  thus  announced  should  ever  receive  the  sanction  of  a 
majority  of  this  court,  a  radical  and  mischievous  change  in  our 
system  of  government  will  be  the  result.  We  will,  in  that  event, 
pass  from  the  era  of  constitutional  liberty  guarded  and  protected  by 
a  written  constitution  into  an  era  of  legislative  absolutism. 

Although  from  the  foundation  of  the  Government  this  court  has 
held  steadily  to  the  view  that  the  Government  of  the  United  States 
was  one  of  enumerated  powers,  and  that  no  one  of  its  branches,  nor 
all  of  its  branches  combined,  could  constitutionally  exercise  powers  not 
granted,  or  which  were  not  necessarily  implied  from  those  expressly 
granted  (Martin  v.  Hunter,  1  Wheat.  304,  326,  331  [746]),  we  are 
now  informed  that  Congress  possesses  powers  outside  of  the  Consti- 
tution^ and  may  deal  with  new  territory  acquired  by  treaty  or  con- 
quest in  the  same  manner  as  other  nations  have  been  accustomed  to  act 
with  respect  to  territories  acquired  by  them.  In  my  opinion,  Congress 
has  no  existence  and  can  exercise  no  authority  outside  of  the  Consti: 
tution.  Still  less  is  it  true  that  Congress  can  deal  with  new  terri- 
tories just  as  other  nations  have  done  or  may  do  with  their  new 
territories.  This  nation  is  under  the  control  of  a  written  consti- 
tution, the  supreme  law  of  the  land  and  the  only  source  of  the 
powers  which  our  Government,  or  any  branch  or  officer  of  it, 
may  exert  at  any  time  or  at  any  place.  Monarchical  and  despotic 
governments,  unrestrained  by  written  constitutions,  may  do  with 
newly  acquired  territories  what  this  Government  may  not  do  cousist- 

77 


1218      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF  TERRITORY. 

ently  with  our  fundamental  law.  To  say  otherwise  is  to  concede  that 
Congress  may  by  action  taken  outside  of  the  Constitution,  engraft 
upon  our  republican  institutions  a  colonial  system  such  as  exists  un- 
der monarchical  governments.  Surely  such  a  result  was  never  con- 
templated by  the  fathers  of  the  Constitution.  If  that  instrument  had, 
contained  a  word  suggesting  the  possibility  of  a  result  of  that  char- 
acter it  would  never  have  been  adopted  by  the  People  of  the  United 
States.  The  idea  that  this  country  may  acquire  territories  anywhere 
upon  the  earth,  by  conquest  or  treaty,  and  hold  them  as  mere  colonies 
or  provinces  —  the  people  inhabiting  them  to  enjoy  only  such  rights 
as  Congress  chooses  to  accord  to  them  —  is  wholly  inconsistent  with 
the  spirit  and  genius,  as  well  as  with  the  words  of  the  Constitution. 

The  idea  prevails  with  some  —  indeed,  it  found  expression  in  argu- 
ments at  the  bar  —  that  we  have  in  this  country  substantially  or  prac- 
tically two  national  governments  ;  one  to  be  maintained  under  the 
Constitution,  with  all  its  restrictions  ;  the  other  to  be  maintained  by 
Congress  outside  and  independently  of  that  instrument,  by  exercising 
such  powers  as  other  nations  of  the  earth  are  accustomed  to  exercise. 
It  is  one  thing  to  give  such  a  latitudinarian  construction  to  the  Con- 
stitution as  will  bring  the  exercise  of  power  by  Congress,  upon  a  par- 
ticular occasion  or  upon  a  particular  subject,  within  its  provisions. 
It  is  quite  a  different  thing  to  say  that  Congress  may,  if  it  so  elects, 
proceed  outside  of  the  Constitution.  The  glory  of  our  American  sys- 
tem of  governmeut  is  that  it  was  created  by  a  written  constitution 
which  protects  the  people  against  the  exercise  of  arbitrary,  unlimited 
power,  and  the  limits  of  which  instrument  may  not  be  passed  by  the 
government  it  created,  or  by  any  branch  of  it,  or  even  by  the  people 
who  ordained  it,  except  by  amendment  or  change  of  its  provisions. 
"  To  what  purpose,"  Chief  Justice  Marshall  said  in  Marbury  v.  Madi- 
son, 1  Cranch,  137,  176  [815],  "  are  powers  limited,  and  to  what  pur- 
pose is  that  limitation  committed  to  writing  if  these  limits  may,  at 
any  time,  be  passed  by  those  intended  to  be  restrained?  The  dis- 
tinction between  a  government  with  limited  and  unlimited  powers  is 
abolished  if  those  limits  do  not  confine  the  persons  on  whom  they 
are  imposed,  and  if  acts  prohibited  and  acts  allowed  are  of  equal 
obligation." 

The  wise  men  who  framed  the  Constitution,  and  the  patriotic  peo- 
ple who  adopted  it,  were  unwilling  to  depend  for  their  safety  upon 
what,  in  the  opinion  referred  to,  is  described  as  "certain  principles  of 
natural  justice  inherent  in  Anglo-Saxon  character,  which  need  no  ex- 
pression in  constitutions  or  statutes  to  give  them  effect  or  to  secure 
dependencies  against  legislation  manifestly  hostile  to  their  real  in- 
terests." They  proceeded  upon  the  theory  —  the  wisdom  of  which 
experience  has  vindicated  —  that  the  only  safe  guaranty  against  gov- 
ernmental oppression  was  to  withhold  or  restrict  the  power  to  oppress. 
They  well  remembered  that  Anglo-Saxons  across  the  ocean  had  at- 
tempted, in  defiance  of  law  and  justice,  to  trample  upon  the  rights  of 


DOWNES    V.    BIDWELL.  1219 

Anglo-Saxons  on  this  continent,  and  had  sought  by  military  force  to 
establish  a  government  that  could  at  will  destroy  the  privileges  that 
inhere  in  liberty.  They  believed  that  the  establishment  here  of  a 
government  that  could  administer  public  affixirs  according  to  its  will, 
unrestrained  by  any  fundamental  law  and  witliout  regard  to  the  in- 
herent rights  of  freemen,  would  be  ruinous  to  the  liberties  of  the  peo- 
ple, by  exposing  them  to  the  oppressions  of  arbitrary  power.  Hence, 
the  Constitution  enumerates  the  powers  which  Congress  and  the  other 
departments  may  exercise  —  leaving  unimpaired,  to  the  States  or  the 
People,  the  powers  not  delegated  to  the  National  Government  nor  pro- 
hibited to  the  States.  That  instrument  so  expressly  declares  in  the 
Tenth  Article  of  Amendment,  It  will  be  an  evil  day  for  American  lib- 
erty if  the  theory  of  a  government  outside  of  the  supreme  law  of  the 
land  finds  lodgment  in  our  constitutional  jurisprudence.  No  higher 
duty  rests  upon  this  court  than  to  exert  its  full  authority  to  prevent 
all  violation  of  the  principles  of  the  Constitution. 

Again,  it  is  said  that  Congress  has  assumed,  in  its  past  history, 
that  the  Constitution  goes  into  territories  acquired  by  purchase  or 
conquest  onhj  ivheyi  and  as  it  shall  so  direct,  and  we  are  informed  of 
the  liberality  of  Congress  in  legislating  the  Constitution  into  all  our 
contiguous  territories.  This  is  a  view  of  the  Constitution  that  may 
well  cause  surprise,  if  not  alarm.  Congress,  as  I  have  observed,  has 
no  existence  except  by  virtue  of  the  Constitution.  It  is  the  creature 
of  the  Constitution.  It  has  no  powers  which  that  instrument  has  not 
granted,  expressly  or  by  necessary  implication.  I  confess  that  I  can- 
not gi-asp  the  thought  that  Congress,  which  lives  and  moves  and  has 
its  being  in  the  Constitution,  and  is  consequently  the  mere  creature 
of  that  instrument,  can,  at  its  pleasure,  legislate  or  exclude  its  cre- 
ator from  territories  which  were  acquired  only  by  authority  of  the 
Constitution. 

By  the  express  words  of  the  Constitution,  every  Senator  and  Kep- 
resentative  is  bound  by  oath  or  affirmation,  to  regard  it  as  the  su- 
preme law  of  the  land.  When  the  Constitutional  Convention  was  in 
session  there  was  much  discussion  as  to  the  phraseology  of  the  clause 
defining  the  supremacy  of  the  Constitution,  laws,  and  treaties  of  the 
United  States.  At  one  stage  of  the  proceedings,  the  Convention 
adopted  the  following  clause  :  "  This  Constitution,  and  the  laws  of 
the  United  States  made  in  pursuance  thereof,  and  all  the  treaties 
made  under  the  authority 'of  the  United  States,  shall  be  the  supreme 
law  of  the  several  States  and  of  their  citizens  and  inhabitants,  and 
the  judges  of  the  several  States  shall  be  bound  thereby  in  their  deci- 
sions, anything  in  the  laws  of  the  several  States  to  the  contrar}^  not- 
withstanding." This  clause  was  amended,  on  motion  of  Mr.  Madison, 
by  inserting  after  the  words  "all  treaties  made"  the  words  "or 
which  shall  be  made."  If  the  clause  so  amended  had  been  inserted 
in  the  Constitution  as  finally  adopted,  perhaps  there  would  have  been 
some  justification  for  saying  that  the  Constitution,  laws,  and  treaties 


1220      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

of  the  United  States  constituted  the  supreme  law  only  in  the  States, 
and  that  outside  of  the  States  the  will  of  Congress  was  supreme. 
But  the  framers  of  the  Constitution  saw  the  danger  of  such  a  provi- 
sion, and  put  into  that  instrument  in  place  of  the  above  clause  the 
following :  "  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land:  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding,"  Meigs's  Growth  of  the 
Constitution,  284,  287.  That  the  convention  struck  out  the  words, 
"the  supreme  law  of  the  several  States,"  and  inserted  "the  supreme 
law  of  the  land,"  is  a  fact  of  no  little  significance.  The  "  land  "  re- 
ferred to  manifestly  embraced  all  the  peoples  and  all  the  territory, 
whether  within  or  without  the  States,  over  which  the  United  States 
could  exercise  jurisdiction  or  authority. 

Further,  it  is  admitted  that  sovie  of  the  provisions  of  the  Consti- 
tution do  apply  to  Porto  Kico,  and  may  be  invoked  as  limiting  or 
restricting  the  authority  of  Congress,  or  for  the  protection  of  the' 
people  of  that  island.  And  it  is  said  that  there  is  a  clear  distinction 
between  such  prohibitions  "as  go  to  the  very  root  of  the  power  of 
Congress  to  act  at  all,  irrespective  of  time  or  place,  and  such  as  are 
operative  only  'throughout  the  United  States  '  or  among  the  several 
States."  In  the  enforcement  of  this  suggestion  it  is  said  in  one  of 
the  opinions  just  delivered :  "Thus,  when  the  Constitution  declares 
that  'no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed,'  and 
that  '  no  title  of  nobility  shall  be  granted  by  the  United  States,'  it 
goes  to  the  competency  of  Congress  to  pass  a  bill  of  that  descrijjtlon.'" 
I  cannot  accept  this  reasoning  as  consistent  with  the  Constitution  or 
with  sound  rules  of  interpretation.  The  express  prohibition  upon 
the  passage  by  Congress  of  bills  of  attainder  or  of  ex  post  facto  laws, 
or  the  granting  of  titles  of  nobility,  goes  no  more  directly  to  the 
root  of  the  power  of  Congress  than  does  the  express  prohibition 
against  the  imposition  by  Congress  of  any  duty,  impost,  or  excise 
that  is  not  uniform  throughout  the  United  States.  The  opposite 
theory,  I  take  leave  to  say,  is  quite  as  extraordinary  as  that  which 
assumes  that  Congress  may  exercise  powers  outside  of  the  Constitu- 
tion, and  may,  in  its  discretion,  legislate  that  instrument  into  or  out 
of  a  domestic  territory  of  the  United  States. 

In  the  opinion  to  which  I  have  referred  it  is  suggested  that  condi- 
tions may  arise  when  the  annexation  of  distant  possessions  may  be 
desirable.  "If,"  says  that  opinion,  "those  possessions  are  inhab- 
ited by  alien  races,  differing  from  us  in  religion,  customs,  laws, 
methods  of  taxation,  and  modes  of  thought,  the  administration  of 
government  and  justice,  according  to  Anglo-Saxon  principles,  may 
for  a  time  be  impossible ;  and  the  question  at  once  arises  whether 
large  concessions  ought  not  to  be  made  for  a  time,  that  ultimately 


DOWNES   V.   BIDWELL.  1221 

our  own  theories  may  be  carried  out,  and  the  blessings  of  a  free  gov- 
ernment under  the  Constitution  extended  to  them.  We  decline  to 
hold  that  there  is  anything  in  the  Constitution  to  forbid  such  action." 
In  my  judgment,  the  Constitution  does  not  sustain  any  such  theory 
of  our  governmental  system.  Whether  a  particular  race  will  or  will 
not  assimilate  with  our  people,  and  whether  they  can  or  cannot  with 
safety  to  our  institutions  be  brought  within  the  operation  of  the  Con- 
stitution, is  a  matter  to  be  thought  of  when  it  is  proposed  ^o  acquire 
their  territory  by  treaty.  A  mistake  in  the  acquisition  of  territory, 
although  such  acquisition  seemed  at  the  time  to  be  necessary,  cannot 
be  made  the  ground  for  violating  the  Constitution  or  refusing  to  give 
full  effect  to  its  provisions.  The  Constitution  is  not  to  be  obeyed  or 
disobeyed  as  the  circumstances  of  a  particular  crisis  in  our  history 
may  suggest  the  one  or  the  other  course  to  be  pursued.  The  People 
have  decreed  that  it  shall  be  tiie  supreme  law  of  the  land  at  all  times. 
When  the  acquisition  of  territory  becomes  complete,  by  cession,  the 
Constitution  necessarily  becomes  the  supreme  law  of  such  new  terri- 
tory, and  no  power  exists  in  any  department  of  the  government  to 
make  "concessions  "  that  are  inconsistent  with  its  provisions.  The 
authority  to  make  such  concessions  implies  the  existence  in  Congress 
of  power  to  declare  that  constitutional  provisions  may  be  ignored 
under  special  or  embarrassing  circumstances.  No  such  dispensing 
power  exists  in  any  branch  of  our  Government.  The  Constitution  is 
supreme  over  every  foot  of  territory,  wherever  situated,  under  the 
jurisdiction  of  the  United  States,  and  its  full  operation  cannot  be 
stayed  by  any  branch  of  the  Government  in  order  to  meet  what  some 
may  suppose  to  be  extraordinary  emergencies.  If  the  Constitution 
is  in  force  in  any  territory,  it  is  in  force  there  for  every  purpose  em- 
braced by  the  objects  for  which  the  Government  was  ordained.  Its 
authority  cannot  be  displaced  by  concessions,  even  if  it  be  true,  as 
asserted  in  argument  in  some  of  these  cases,  that  if  the  tariff  act 
took  effect  in  the  Philippines  of  its  own  force,  the  inhabitants  of 
Mandanao,  who  live  on  imported  rice,  would  starve,  because  the  im- 
port duty  is  many  fold  more  than  the  ordinary  cost  of  the  grain  to 
them.  The  meaning  of  the  Constitution  cannot  depend  upon  acci- 
dental circumstances  arising  out  of  the  products  of  other  countries  or 
of  this  country.  We  cannot  violate  the  Constitution  in  order  to  serve 
particular  interests  in  our  own  or  in  foreign  lands.  Even  this  court, 
with  its  tremendous  power,  must  heed  the  mandate  of  the  Constitu- 
tion. No  one  in  official  station,  to  whatever  department  of  the  Gov- 
ernment he  belongs,  can  disobey  its  commands  without  violating  the 
obligation  of  the  oath  he  has  taken.  By  whomsoever  and  wherever 
power  is  exercised  in  the  name  and  under  the  authority  of  the  United 
States,  or  of  any  branch  of  its  Government,  the  validity  or  invalidity 
of  that  which  is  done  must  be  determined  by  the  Constitution. 

In  De  Lima  v.  Bidwell,  just  decided  [181  U.  S.  1],  we  have  held, 
that,  upon  the  ratification  of  the  treaty  with  Spain,  Porto  Eico  ceased 


1222      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OP   TERRITORY. 

to  be  a  foreign  country  and  became  a  domestic  territory  of  the  United 
States.  We  have  said  in  that  case  that  from  1803  to  the  present 
time  there  was  not  a  shred  of  avithority,  except  a  dictum  in  one  case, 
"  for  holding  that  a  district  ceded  to  and  in  possession  of  the  United 
States  remains  for  any  purpose  a  foreign  territory; "  that  territory  so 
acquired  cannot  be  "domestic  for  one  purpose  and  foreign  for  an- 
other;" and  that  any  judgment  to  the  contrary  would  be  "pure  judicial 
legislation,"  for  which  there  was  no  warrant  in  the  Constitution  or  in 
the  })owers  conferred  upon  this  court.  Although,  as  we  have  just  de- 
cided, Porto  Kico  ceased,  after  the  ratification  of  the  treaty  with  Spain, 
to  be  a  foreign  country  within  the  meaning  of  the  tariff  act,  and  became 
a  domestic  country  —  "a  territory  of  the  United  States  "  —  it  is  said 
that  if  Congress  so  wills  it  may  be  controlled  and  governed  outside 
of  the  Constitution  and  by  the  exertion  of  the  powers  which  other 
nations  have  been  accustomed  to  exercise  with  respect  to  territories 
acquired  by  them  ;  in  other  Vv^ords,  we  may  solve  the  question  of  the 
power  of  Congress  under  the  Constitution  by  referring  to  the  powers 
that  may  be  exercised  by  other  nations.  I  cannot  assent  to  this  view. 
I  reject  altogether  the  theory  that  Congress,  in  its  discretion,  can  ex- 
clude the  Constitution  from  a  domestic  territory  of  the  United  States, 
acquired,  and  which  could  only  have  been  acquired,  in  virtue  of  the 
Constitution.  I  cannot  agree  that  it  is  a  domestic  territory  of  the 
United  States  for  the  purpose  of  preventing  the  application  of  the  tariff 
act  imposing  duties  upon  imports  from  foreign  countries,  but  not  a 
part  of  the  United  States  for  the  purpose  of  enforcing  the  constitu- 
tional requirement  that  all  duties,  imposts  and  excises  imposed  by 
Congress  "shall  be  uniform  throughout  the  United  States."  How 
Porto  Eico  can  be  a  domestic  territory  of  the  United  States,  as  dis- 
tinctly held  in  De  Lima  v.  Bidwell,  and  yet,  as  is  now  held,  not 
embraced  by  the  words  "throughout  the  United  States,"  is  more 
than  I  can  understand. 

We  heard  much  in  argument  about  the  "  expanding  future  of  our 
country."  It  was  said  that  the  United  States  is  to  become  what  is 
called  a  "  world  power  "  ;  and  that  if  this  government  intends  to  keep 
abreast  of  the  times  and  be  equal  to  the  great  destiny  that  awaits  the 
American  people,  it  viust  be  allowed  to  exert  all  the  power  that 
other  nations  are  accustomed  to  exercise.  My  answer  is,  that  the 
fathers  never  intended  that  the  authority  and  influence  of  this  na- 
tion should  be  exerted  otherwise  than  in  accordance  with  the  Consti- 
tution. If  our  government  needs  more  power  than  is  conferred  upon 
it  by  the  Constitution,  that  instrument  provides  the  mode  in  which  it 
may  be  amended  and  additional  power  thereby  obtained.  The  people 
of  the  United  States  who  ordained  the  Constitution  never  supposed 
that  a  change  could  be  made  in  our  system  of  government  by  mere 
judicial  interpretation.  They  never  contemplated  any  such  juggling 
"with  tlie  words  of  the  Constitution  as  would  authorize  the  courts  to 
hold  that  the  words  "  throughout  the  United  States,"  in  the  taxing 


DOWNES  V.    BIDWELL.  1223 

clause  of  the  Constitution,  do  not  embrace  a  domestic  "  territory  of 
the  United  States  "  having  a  civil  government  established  by  the 
authority  of  the  United  States.  This  is  a  distinction  which  I  am 
unable  to  make,  and  which  I  do  not  think  ought  to  be  made  when 
we  are  endeavoring  to  ascertain  the  meaning  of  a  great  instrument  of 
government. 

There  are  other  matters  to  which  I  desire  to  refer.  In  one  of  the 
opinions  just  delivered  the  case  of  Neely  v.  Henkel,  180  U.  S.  119,  is 
cited  in  support  of  the  proposition  that  the  provision  of  the  Foraker 
act  here  involved  was  consistent  with  the  Constitution.  If  the  con- 
trary had  not  been  asserted  I  should  have  said  that  the  judgment  in 
that  case  did  not  have  the  slightest  bearing  on  the  question  before  us. 
The  only  inquiry  there  was  whether  Cuba  was  a  foreign  country  or 
territory  within  the  meaning,  not  of  the  tariff  act,  but  of  the  act  of 
June  6,  1900  (31  Stat.  656,  chap.  793).  We  held  that  it  was  a 
foreign  country.  We  could  not  have  held  otherwise,  because  the 
United  States,  when  recognizing  the  existence  of  war  between  this 
country  and  Spain,  disclaimed  "  any  disposition  or  intention  to  exer- 
cise sovereignty,  jurisdiction,  or  control  over  said  island  except  for 
the  pacification  thereof,"  and  asserted  "  its  determination,  when  that 
is  accomplished,  to  leave  the  government  and  control  of  the  island  to 
its  people."  We  said  :  "  While  by  the  act  of  April  25,  1898,  declar- 
ing war  between  this  country  and  Spain,  the  President  was  directed 
and  empowered  to  use  our  entire  land  and  naval  forces,  as  well  as  the 
militia  of  the  several  States,  to  such  an  extent  as  was  necessary  to 
carry  such  act  into  effect,  that  authorization  was  not  for  the  purpose 
of  making  Cuba  an  integral  part  of  the  United  States,  but  only  for  the 
purpose  of  compelling  the  relinquishment  by  Spain  of  its  authority 
and  government  in  that  island  and  the  withdrawal  of  its  forces  from 
Cuba  and  Cuban  waters.  The  legislative  and  executive  branches  of 
the  Government,  by  the  joint  resolution  of  April  20,  1898,  expressly 
disclaimed  any  purpose  to  exercise  sovereignty,  jurisdiction,  or  con- 
trol over  Cuba  '  except  for  the  pacification  thereof,'  and  asserted  the 
determination  of  the  United  States,  that  object  being  accomplished, 
to  leave  the  government  and  control  of  Cuba  to  its  own  people.  All 
that  has  been  done  in  relation  to  Cuba  has  had  that  end  in  view,  and, 
so  far  as  this  court  is  informed  by  the  public  history  of  the  relations 
of  this  country  with  that  island,  nothing  has  been  done  inconsistent 
with  the  declared  object  of  the  war  with  Spain.  Cuba  is  none  the 
less  foreign  territory,  within  the  meaning  of  the  act  of  Congress,  be- 
cause it  is  under  a  military  governor  appointed  by  and  representing 
the  President  in  the  work  of  assisting  the  inhabitants  of  that  island 
to  establish  a  government  of  their  own,  under  which,  as  a  free  and 
independent  people,  they  may  control  their  own  affairs  without  inter- 
ference by  other  nations.  The  occupancy  of  the  island  by  troops  of 
the  United  States  was  the  necessary  result  of  the  war.  That  result 
could  not  have  been  avoided  by  the  United  States  consistently  with 


1224      ADDITIONAL    CASES   RELATING   TO  ANNEXATION   OF   TERRITORY. 

the  principles  of  international  law  or  with  its  obligations  to  the  people 
of  Cuba.  It  is  true  that  as  between  Spain  and  the  United  States,  — 
indeed,  as  between  the  United  States  and  all  foreign  nations  —  Cuba, 
upon  the  cessation  of  hostilities  with  Spain  and  after  the  Treaty  of 
Paris,  was  to  be  treated  as  if  it  were  conquered  territory.  But  as 
between  the  United  States  and  Cuba,  that  island  is  territory  held  in 
trust  for  the  inhabitants  of  Cuba  to  whom  it  rightfully  belongs,  and 
to  whose  exclusive  control  it  will  be  surrendered  when  a  stable  gov- 
ernment shall  have  been  established  by  their  voluntary  action."  In 
answer  to  the  suggestion  that,  under  the  modes  of  trial  there  adopted, 
Neely,  if  taken  to  Cuba,  would  be  denied  the  rights,  privileges,  and 
immunities  accorded  by  our  Constitution  to  persons  charged  with 
crime  against  the  United  States,  we  said  that  the  constitutional  pro- 
visions referred  to  "  have  no  relation  to  crimes  committed  without 
the  jurisdiction  of  the  United  States  against  the  laws  of  a  foreign 
country."  What  use  can  be  made  of  that  case  in  order  to  prove  that 
the  Constitution  is  not  in  force  in  a  territory  of  the  United  States  ac- 
quired by  treaty,  except  as  Congress  may  provide,  is  more  than  I  can 
perceive. 

There  is  still  another  view  taken  of  this  case.  Conceding  that  the 
National  Government  is  one  of  enumerated  powers,  to  be  exerted  only 
for  the  limited  objects  defined  in  the  Constitution,  and  that  Congress 
has  no  power,  except  as  given  by  that  instrument  either  expressly  or 
by  necessary  implication,  it  is  yet  said  that  a  new  territory,  acquired 
by  treaty  or  conquest,  cannot  become  incorporated  into  the  United 
States  without  the  consent  of  Congress.  What  is  meant  by  such  in- 
corporation we  are  not  fully  informed  nor  are  we  isntructed  as  to  the 
precise  mode  in  which  it  is  to  be  accomplished.  Of  course,  no  territory 
can  become  a  State  in  virtue  of  a  treaty  or  without  the  consent  of  the 
legislative  branch  of  the  Government;  for  only  Congress  is  given 
power  by  the  Constitution  to  admit  new  States.  But  it  is  an  entirely 
different  question  whether  a  domestic  "  territory  of  the  United  States," 
having  an  organized  civil  government  established  by  Congress,  is  not, 
for  all  purposes  of  government  by  the  Nation,  under  the  complete 
jurisdiction  of  the  United  States,  and  therefore  a  part  of,  and  incorpo- 
rated into,  the  United  States,  subject  to  all  the  authority  which  the 
National  Government  may  exert  over  any  territory  or  people.  If 
Porto  Rico,  although  a  territory  of  the  United  States,  may  be  treated 
as  if  it  were  not  a  part  of  the  United  States,  then  New  Mexico  and 
Arizona  may  be  treated  as  not  parts  of  the  United  States,  and  subject 
to  such  legislation  as  Congress  may  choose  to  enact  without  any  ref- 
erence to  the  restrictions  imposed  by  the  Constitution.  The  admis- 
sion that  no  power  can  be  exercised  under  and  by  authority  of  the 
United  States  except  in  accordance  with  the  Constitution  is  of  no 
practical  value  whatever  to  constitutional  liberty,  if,  as  soon  as  the 
admission  is  made  —  as  quickly  as  the  words  expressing  the  thought 
can  be  uttered  —  the   Constitution  is  so  liberally  interpreted  as  to 


DOWNES   V.   BIDWELL.  1225 

produce  the  same  results  as  those  which  flow  from  the  theory  that 
Congress  may  go  outside  of  the  Constitution  in  dealing  with  newly 
acquired  territories,  and  give  them  the  benefit  of  that  instrument  only 
when  and  as  it  shall  direct. 

Can  it  for  a  moment  be  doubted  that  the  addition  of  Porto  Rico  to 
the  territory  of  the  United  States  in  virtue  of  the  treaty  with  Spain 
has  been  recognized  by  direct  action  upon  the  part  of  Congress  ?  Has 
it  not  legislated  in  recognition  of  that  treaty,  and  appropriated  the 
money  which  it  required  this  country  to  pay  ? 

If,  by  virtue  of  the  ratification  of  the  treaty  with  Spain,  and  the 
appropriation  of  the  amount  which  that  treaty  required  this  country 
to  pay,  Porto  Rico  could  not  become  a  part  of  the  United  States  so 
as  to  be  embraced  by  the  words  "throughout  the  United  States,"  did 
it  not  become  "  incorporated  "  into  the  United  States  when  Congress 
passed  the  Foraker  act?  31  Stat.  77,  chap.  191.  What  did  that 
act  do  ?  It  provided  a  civil  government  for  Porto  Rico,  with  legisla- 
tive, executive,  and  judicial  departments  ;  also,  for  the  appointment 
by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate  of 
the  United  States,  of  a  "  governor,  secretary,  attorney  general,  treas- 
urer, auditor,  commissioner  of  the  interior,  and  a  commissioner  of 
education."  §§  17-25.  It  provided  for  an  executive  council,  the 
members  of  which  should  be  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate.  §  18.  The  governor  was  re- 
quired to  report  all  transactions  of  the  government  in  Porto  Rico  to 
the  President  of  the  United  States.  §  17.  Provision  was  made  for 
the  coins  of  the  United  States  to  take  the  place  of  Porto  Rican  coins. 
§  11.  All  laws  enacted  by  the  Porto  Rican  legislative  assembly  w^ere 
required  to  be  reported  to  the  Congress  of  the  United  States,  which 
reserved  the  power  and  authority  to  amend  the  same.  §  31.  But 
that  was  not  all.  Except  as  otherwise  provided,  and  except  also  the 
internal  revenue  laws,  the  statutory  laws  of  the  United  States,  not 
locally  inapplicable,  are  to  have  the  same  force  and  effect  in  Porto 
Rico  as  in  the  United  States.  §  14.  A  judicial  department  was  es- 
tablished in  Porto  Rico,  with  a  judge  to  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate.  §  33.  The 
court  so  established  was  to  be  known  as  the  District  Court  of  the 
United  States  for  Porto  Rico,  from  which  writs  of  error  and  appeals 
were  to  be  allowed  to  this  court.  §  34.  All  judicial  process,  it  was 
provided,  "  shall  run  in  the  name  of  the  United  States  of  America, 
and  the  President  of  the  United  States."  §  16.  And  yet  it  is  said 
that  Porto  Rico  was  not  "  incorporated  "  by  the  Foraker  act  into  the 
United  States  so  as  to  be  part  of  the  United  States  within  the  mean- 
ing of  the  constitutional  requirement  that  all  duties,  imposts,  and  ex- 
cises imposed  by  Congress  shall  be  uniform  "throughout  the  United 
States." 

It  would  seem,  according  to  tlie  theories  of  some,  that  even  if 
Porto  Rico  is  in  and  of  the  United  States  for  many  important  pur- 


1226      ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OF   TERRITORY. 

poses,  it  is  yet  not  a  part  of  this  country  with  the  privilege  of 
protesting  against  a  rule  of  taxation  which  Congress  is  expressly 
forbidden  by  the  Constitution  from  adopting  as  to  any  part  of  the 
"  United  States."  And  this  result  comes  from  the  failure  of  Con- 
gress to  use  the  word  "  incorporate  "  in  the  Foraker  act,  although  by 
the  same  act  all  power  exercised  by  the  civil  government  in  Porto 
Rico  is  by  authority  of  the  United  States,  and  although  this  court  has 
been  given  jurisdiction  by  writ  of  error  or  appeal  to  re-examine  the 
final  judgments  of  the  District  Court  of  the  United  States  established 
by  Congress  for  that  territory.  Suppose  Congress  had  passed  this 
act:  ^^Be  it  enacted  hy  the  Senate  and  House  of  Representatives  in 
Congress  assembled,  That  Porto  Rico  be  and  is  hereby  incorporated 
into  the  United  States  as  a  territory,"  would  such  a  statute  have  en- 
larged the  scope  or  effect  of  the  Foraker  act  ?  Would  such  a  statute 
have  accomplished  more  than  the  Foraker  act  has  done  ?  Indeed, 
would  not  such  legislation  have  been  regarded  as  most  extraordinary 
as  well  as  unnecessary  ? 

I  am  constrained  to  say  that  this  idea  of  "incorporation  "  has  some 
occult  meaning  which  my  mind  does  not  apprehend.  It  is  enveloped 
in  some  mystery  which  I  am  unable  to  unravel. 

In  my  opinion  Porto  Rico  became,  at  least  after  the  ratification  of 
the  treaty  with  Spain,  a  part  of  and  subject  to  the  jurisdiction  of  the 
United  States  in  respect  of  all  its  territory  and  people,  and  that  Con- 
gress could  not  thereafter  impose  any  duty,  impost,  or  excise  with 
respect  to  that  island  atid  its  inhabitants,  which  departed  from  the 
rule  of  uniformity  established  by  the  Constitution. 


DOOLEY  V.  UNITED   STATES. 
183  U.  S.  151,  22  Sup.  Ct.  Rep.  62.     1901. 

This  was  an  action  begun  in  the  Circuit  Court  as  a  Court  of  Claims 
by  the  firm  of  Dooley,  Smith  &  Co.,  to  recover  duties  exacted  of 
them  and  paid  under  protest  to  the  collector  of  the  port  of  San  Juan, 
Porto  Rico,  upon  merchandise  imported  into  that  port  from  the  port 
of  New  York  after  May  1,  1900,  and  since  the  Foraker  act.  This  act 
requires  all  merchandise  "coming  into  Porto  Rico  from  the  United 
States"  to  be  "entered  at  the  several  ports  of  entry  upon  payment 
of  fifteen  per  centum  of  the  duties  which  are  required  to  be  levied, 
collected,  and  paid  upon  like  articles  of  merchandise  imported  from 
foreign  countries."     [31  Stat.  77,  chap.  191,  sec.  3.] 

A  demurrer  was  interposed  by  the  district  attorne}'-  upon  the 
ground  that  the  court  had  no  jurisdiction  of  the  subject  of  the  action, 
and  also  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  The  demurrer  to  the  complaint  for  insufficiency 
was  sustained,  and  the  petition  dismissed. 


DOOLEY  v..  UNITED   STATES.  1227 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court: 

This  case  raises  the  question  of  the  constitutionality  of  the  Foraker 
act,  so  far  as  it  fixes  the  duties  to  be  paid  upon  merchandise  imported 
into  Porto  Rico  from  the  port  of  New  York.  The  validity  of  this 
requirement  is  attacked  upon  the  ground  of  its  violation  of  that 
clause  of  the  Coustitution  (Art.  I,  sec.  9)  declaring  that  "  uo  tax  or 
duty  shall  be  laid  on  articles  exported  from  any  State." 

While  the  words  "import"  and  "export"  are  sometimes  used  to 
denote  goods  passing  from  one  State  to  another,  the  word  "import," 
in  connection  with  the  provision  of  the  Constitution  that  "  no  State 
shall  levy  any  imposts  or  duties  on  imports  or  exports,"  was  held  in 
Woodruff  y.  Parham,  8  Wall.  123,  to  apply  only  to  articles  imported 
from  foreign  countries  into  the  United  States. 

That  was  an  action  to  recover  a  tax  imposed  by  the  city  of  Mobile 
for  municipal  purposes,  upon  sales  at  auction.  Defendants,  who 
were  auctioneers,  received  in  the  course  of  their  business  for  them- 
selves, or  as  consignees  or  agents  for  others,  large  amounts  of  goods 
and  merchandise  the  products  of  other  States  than  Alabama,  and  sold 
the  same  in  Mobile  to  purchasers  in  unbroken  and  original  packages. 
The^Supreme  Court  of  Alabama  decided  the  case  in  favor  of  the  tax, 
and  the  case  came  here  for  review. 

The  question,  as  stated  by  Mr.  Justice  Miller,  was  "  whether  mer- 
chandise brought  from  other  States  and  sold,  under  the  circumstances 
stated,  comes  within  the  prohibition  of  the  Federal  Constitution  that 
no  State  shall,  without  the  consent  of  Congress,  levy  any  imposts  or 
duties  on  imports  or  exports."  Defendants  relied  largely  upon  a 
dictum  in  Brown  v.  Maryland,  12  Wheat.  419,  to  the  effect  that  the 
principles  laid  down  in  that  case  as  to  the  non-taxability  of  imports 
from  foreign  countries  might  perhaps  apply  equally  to  importations 
from  a  sister  State. 

In  discussing  this  question,  and  particularly  of  the  power  of  Con- 
gress to  levy  and  collect  taxes,  duties,  imposts,  and  excises,  Mr. 
Justice  Miller  observed  :  "  Is  the  word  '  impost,'  here  used,  intended 
to  confer  upon  Congress  a  distinct  power  to  levy  a  tax  upon  all  goods 
or  merchandise  carried  from  one  State  to  another  ?  Or  is  the  power 
limited  to  duties  on  foreign  imports  ?  If  the  former  be  intended, 
then  the  power  conferred  is  curiously  rendered  nugatory  by  the  sub- 
sequent clause  of  the  ninth  section,  which  declares  that  no  tax  shall  be 
laid  on  articles  exported  from  any  State,  for  no  article  can  be  im- 
ported from  one  State  into  another  which  is  not  at  the  same  time  ex- 
ported from  the  former.  But  if  we  give  to  the  word  'imposts' as 
used  in  the  first-mentioned  clause  the  definition  of  Chief  Justice 
Marshall,  and  to  the  word  *  export '  the  corresponding  idea  of  some- 
thing carried  out  of  the  United  States,  we  have,  in  the  power  to  lay 
duties  on  imports  from  abroad  and  the  prohibition  to  lay  such  duties 
on  exports  to  other  countries,  the  power  and  its  limitations  concern- 
ing imposts." 


1228      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORr. 

"  It  is  not  too  much  to  say  that,  so  far  as  our  research  has  extended, 
neither  the  word  'export,'  '  import,'  or  '  impost,'  is  to  be  found  in  the 
discussion  on  this  subject,  as  they  have  come  down  to  us  from  that 
time,  in  reference  to  any  other  than  foreign  commerce,  without  some 
special  form  of  words  to  show  that  foreign  commerce  is  not  meant. 
.  .  .  Whether  we  look,  then,  to  the  terms  of  the  clause  of  the  Con- 
stitution in  question,  or  to  its  relation  to  other  parts  of  that  instru- 
ment,' or  to  the  history  of  its  formation  and  adoption,  or  to  the 
comments  of  the  eminent  men  who  took  part  in  those  transactions, 
we  are  forced  to  the  conclusion  that  no  intention  existed  to  prohibit 
by  this  clause"  (that  no  State  shall,  without  the  consent  of  Congress, 
levy  any  impost  or  duty  upon  any  export  or  import)  "the  right  of  one 
State  to  tax  articles  brought  into  it  from  another."  This  definition 
of  the  word  "  impost  "  was  afterwards  approved  in  Brown  v.  Houston, 
114  U.  S.  622  [333].  See  also  Fairbank  v.  United  States,  181  U.  S. 
283. 

It  follows,  and  is  the  logical  sequence  of  the  case  of  Woodruff  v. 
Parham,  that  the  word  "  export  "  should  be  given  a  correlative  mean- 
ing, and  applied  only  to  goods  exported  to  a  foreign  country.  Muller 
V.  Baldwin,  L.  R.  9  Q.  B.  457.  If,  then,  Porto  Eico  be  no  longer  a 
foreign  country  under  the  Dingley  act,  as  was  held  by  a  majority  of 
this  court  in  De  Lima  v.  Bidwell,  182  U.  S.  1,  and  Dooley  v.  United 
States,  182  U.  S.  222,  we  find  it  impossible  to  say  that  goods  carried 
from  New  York  to  Porto  Rico  can  be  considered  as  "exported"  from 
New  York  within  the  meaning  of  that  clause  of  the  Constitution.  If 
they  are  neither  exports  nor  imports,  they  are  still  liable  to  be  taxed 
by  Congress  under  the  ample  and  comprehensive  authority  conferred 
by  the  Constitution  "  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises."     Art.  I,  sec.  8. 

In  another  view,  however,  the  case  presented  by  the  record  is 
whether  a  duty  laid  by  Congress  upon  goods  arriving  at  Porto  Rico 
from  New  York  is  a  duty  upon  an  export  from  New  York,  or  upon 
an  import  to  Porto  Rico.  The  fact  that  the  duty  is  exacted  upon  the 
arrival  of  the  goods  at  San  Juan  certainly  creates  a  presumption  in 
favor  of  the  latter  theory.  At  the  same  time  it  is  possible  that  it 
may  also  be  a  duty  upon  an  export.  The  mere  fact  that  the  duty  is 
not  laid  at  the  port  of  departure  is  by  no  means  decisive  against  its 
being  such.  It  is  too  clear  for  argument  that,  if  vessels  bound  for  a 
foreign  country  were  compelled  to  stop  at  an  intermediate  port  and 
pay  into  the  Treasury  of  the  United  States  a  duty  upon  their  cargoes, 
such  duty  would  be  a  tax  upon  an  export,  and  the  place  of  its  exac- 
tion would  be  of  little  significance.  The  manner  in  which  and  the 
place  at  which  the  tax  is  levied  are  of  minor  consequence.  Thus,  in 
Brown  V.  Maryland,  12  Wheat.  419  [303],  it  was  held  that  an  act  of 
a  State  legislature  requiring  importers  of  foreign  goods  to  take  out  a 
license  was  a  violation  of  the  Constitution  declaring  that  no  State 
shall,  without  the  consent  of  Congress,,  lay  any  impost  or  duty  on 


DOOLEY   V.    UNITED    STATES.  1229 

imports  or  exports;  and  in  the  recent  case  of  Fairbank  v.  United 
States,  181  U.  S.  283,  we  held  that  a  discriminating  stamp  tax  upon 
bills  of  lading  covering  goods  to  be  carried  to  a  foreign  country  was 
a  tax  upon  exports  within  the  same  provision  of  the  Constitution, 

One  thing,  however,  is  entirely  clear.  The  tax  in  question  was 
imposed  upon  goods  imported  into  Porto  Rico,  since  it  was  exacted 
by  the  collector  of  the  port  of  San  Juan  after  the  arrival  of  the 
goods  within  the  limits  of  that  port.  From  this  moment  the  duties 
became  payable  as  upon  imported  merchandise.  United  States  v. 
Howell,  5  Cranch,  3<38  ;  Arnold  ik  United  States,  9  Cranch,  104;  Mere- 
dith V.  United  States,  13  Pet.  486.  Now,  while  an  import  into  one 
port  almost  necessarily  involves  a  prior  export  from  another,  still,  iu 
determining  the  character  of  the  tax  imposed,  it  is  important  to  con- 
sider whetlier  the  duty  be  laid  for  the  purpose  of  adding  to  the 
revenues  of  the  country  from  which  the  export  takes  place,  or  for 
the  benefit  of  the  territory  into  which  they  are  imported.  By  the 
third  section  of  the  Foraker  act,  imposing  duties  upon  merchandise 
coming  into  Porto  Rico  from  the  United  States,  it  is  declared  that 
''whenever  the  legislative  assembly  of  Porto  Rico  shall  have  enacted 
and  put  into  operation  a  system  of  local  taxation  to  meet  the  neces- 
sities of  the  government  of  Porto  Rico,  by  this  act  established,  and 
shall  by  resolution  duly  passed  so  notify  the  President,  he  shall 
make  proclamation  thereof,  and  thereupon  all  tariff  duties  on  mer- 
chandise and  articles  going  into  Porto  Rico  from  the  United  States 
or  coming  into  the  United  States  from  Porto  Rico  shall  cease,  and 
from  and  after  such  date  all  such  merchandise  and  articles  shall  be 
entered  at  the  several  ports  of  entry  free  of  duty.  And  by  section 
four,  "  the  duties  and  taxes  collected  in  Porto  Rico  in  pursuance  of 
this  act,  less  the  cost  of  collecting  the  same,  and  the  gross  amount 
of  all  collections  of  duties  and  taxes  in  the  United  States  upon 
articles  of  merchandise  coming  from  Porto  Rico,  shall  not  be  cov- 
ered into  the  general  fund  of  the  Treasury,  but  shall  be  held  as  a 
separate  fund,  and  shall  be  placed  at  the  disposal  of  the  President  to 
be  used  for  the  government  and  benefit  of  Porto  Rico  until  the  gov- 
ernment of  Porto  Rico,  herein  provided  for,  shall  have  been  organ- 
ized, when  all  moneys  theretofore  collected  under  the  provisions 
hereof,  then  unexpended,  shall  be  transferred  to  the  local  treasury  of 
Porto  Rico." 

Now,  there  can  be  no  doubt  whatever  that  if  the  legislative  as- 
sembly of  Porto  Rico  should,  with  the  consent  of  Congress,  lay  a 
tax  upon  goods  arriving  from  ports  of  the  United  States,  such  tax,  if 
legally  imposed,  would  be  a  duty  upon  imports  to  Porto  Rico,  and  not 
upon  exports  from  the  United  States ;  and  we  think  tlie  same  result 
must  follow  if  the  duty  be  laid  by  Congress  in  the  interest  and  for 
the  benefit  of  Porto  Rico.  The  truth  is  that,  in  imposing  the  duty 
as  a  temporary  expedient,  with  a  proviso  that  it  may  be  abolished 
by  the   legislative   assembly  of  Porto   Rice    at   its   will.    Congress 


1230      ADDITIONAL    CASES   RELATING   TO   ANNEXATION    OF   TERRITORY. 

thereby  shows  that  it  is  undertaking  to  legislate  for  the  island  for 
the  time  being  and  only  until  the  local  government  is  put  into  opera- 
tion. The  mere  fact  that  the  duty  passes  through  the  hands  of  the 
revenue  officers  of  the  United  States  is  immaterial,  in  view  of  the 
requirement  that  it  shall  not  be  covered  into  the  general  fund  of 
the  Treasury,  but  be  held  as  a  separate  fund  for  the  government  and 
benefit  of  Porto  Rico. 

The  action  is  really  correlative  to  that  of  Downes  v.  Bidwell, 
182  U.  S.  244  [1119],  in  which  we  held  that  Congress  could  lawfully 
impose  a  duty  upon  imports  from  Porto  Rico,  notwithstanding  the 
provision  of  the  Constitution  that  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States.  It  is  true  that  this 
conclusion  was  reached  by  a  majority  of  the  court  by  different  proc- 
esses of  reasoning,  but  it  is  none  the  less  true  that  in  the  conclusion 
that  certain  provisions  of  the  Constitution  did  apply  to  Porto  Rico, 
and  that  certain  others  did  not,  there  was  no  difference  of  opinion. 

It  is  not  intended  by  this  opinion  to  intimate  that  Congress  may 
lay  an  export  tax  upon  merchandise  carried  from  one  State  to  an- 
other. While  this  does  not  seem  to  be  forbidden  by  the  express 
words  of  the  Constitution,  it  would  be  extremely  difficult,  if  not  im- 
possible, to  lay  such  a  tax  without  a  violation  of  the  first  paragraph 
of  Art.  I,  sec.  8,  that  "  all  duties,  imposts  and  excises  shall  be  uni- 
form throughout  the  United  States."  There  is  a  wide  difference 
between  the  full  and  paramount  power  of  Congress  in  legislating  for 
a  Territory  in  the  condition  of  Porto  Rico  and  its  power  with  respect 
to  the  States,  which  is  merely  incidental  to  its  right  to  regulate 
interstate  commerce.  The  question,  however,  is  not  involved  in  this 
case,  and  we  do  not  desire  to  express  an  opinion  upon  it. 

These  duties  were  properly  collected,  and  the  action  of  the  Circuit 
Court  in  sustaining  the  demurrer  to  the  complaint  was  correct,  and  it 
is  therefore  affirmed. 

Mr.  Justice  White  concurring : 

While  agreeing  to  the  judgment  of  affirmance  and  in  substance 
concurring  in  the  opinion  of  the  court  just  announced,  by  which  the 
affirmance  is  sustained,  I  propose  to  summarize  in  my  own  language 
the  reasoning  which  the  opinion  embodies  as  it  is  by  me  understood. 

In  my  judgment  the  opinion  of  the  court  in  the  cases  of  De  Lima 
■V.  Bidwell,  182  U.  S.  1,  and  Dooley  v.  United  States,  182  U.  S.  222, 
decided  in  the  last  term,  and  that  just  announced  in  the  case  of  The 
Diamond  Rings,  183  U.  S.  176,  as  well  as  the  opinions  of  the  majority 
of  the  members  of  the  court  in  Downes  v.  Bidwell,  182  U.  S.  244 
[1119],  also  decided  at  the  last  term,  when  considered  in  connection 
with  the  previous  adjudications  of  this  court,  are  conclusive  in  favor  of 
the  affirmance  of  the  judgment  in  this  cause.  The  question  is  whether 
a  tax  imposed  by  authority  of  the  act  of  April  12,  1900  (31  St.  77, 
chap.  191),  in  Porto  Rico,  on  merchandise  coming  into  that  island 


DOOLEY   V.    UNITED    STATES.  1*231 

from  the  United  States,  is  repugnant  to  clause  5,  sec.  9,  of  Art.  I 
of  the  Constitution  of  the  United  States,  which  provides  that  "  no 
tax  or  duty  shall  be  laid  on  articles  exported  from  any  State."  Is 
the  tax  here  assailed  an  export  tax  within  the  meaning  of  the  Con- 
stitution ?  If  it  is,  the  judgment  sustaining  it  should  be  reversed  ; 
if  it  is  not,  affirmance  is  required. 

In  Woodruff  v.  Parham  (1868),  8  Wall.  123,  the  validity  of  a  tax  on 
auction  sales  levied  by  the  city  of  Mobile  pursuant  to  authority  con- 
ferred by  the  laws  of  the  State  of  Alabama  was  called  in  question.  One 
of  the  contentions  was  that,  as  the  tax  was  on  sales  at  auction  of  goods 
in  the  original  packages  brought  into  the  State  of  Alabama  from  other 
States,  it  was  repugnant  to  that  clause  of  sec.  9  of  Art.  I  of  the 
Constitution,  which  forbids  any  State,  without  the  consent  of  Con- 
gress, from  laying  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection  laws. 
In  approaching  the  consideration  of  the  question  thus  presented,  the 
court,  in  its  opinion,  which  was  announced  by  Mr.  Justice  Miller, 
said  (p.  131): 

"The  words  'imposts,'  'imports,'  and  'exports'  are  frequently 
used  in  the  Constitution.  They  have  a  necessary  co-relation,  and 
when  we  have  a  clear  idea  of  what  either  word  means  in  any  par- 
ticular connection  in  which  it  may  be  found,  we  have  one  of  the 
most  satisfactory  tests  of  its  definition  in  other  parts  of  the  same 
instrument.  .  .  .  Leaving,  then,  for  a  moment,  the  clause  of  the 
Constitution  under  consideration  "  (forbidding  a  State  to  lay  an  im- 
port or  an  export  tax),  "we  find  the  first  use  of  these  co-relative 
terms  in  that  clause  of  the  eighth  section  of  the  first  article,  which 
begins  the  enumeration  of  the  powers  confided  to  Congress.  '  The 
Congress  shall  have  power  to  levy  and  collect  taxes,  duties,  imposts, 
and  excises.  .  .  .  But  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States.'  Is  the  word  '  impost,'  here 
used,  intended  to  confer  upon  Congress  a  distinct  power  to  levy  a 
tax  upon  all  goods  or  merchandise  carried  from  one  State  into  an- 
other ?  or  is  the  power  limited  to  duties  on  foreign  imports  ?  If  the 
former  be  intended,  then  the  power  conferred  is  curiously  rendered 
nugatory  by  the  subsequent  clause  of  the  ninth  section,  which  declares 
that  no  tax  shall  be  laid  on  articles  exported  from  any  State,  for  no 
article  can  be  imported  from  one  State  into  another,  which  is  not,  at 
the  same  time,  exported  from  the  former.  But  if  we  give  to  the 
word  'imposts,'  as  used  in  the  first-mentioned  clause,  the  definition 
of  Chief  Justice  Marshall,  and  to  the  word  '  export '  the  correspond- 
ing idea  of  something  carried  out  of  the  United  States,  we  have,  in 
the  power  to  lay  duties  on  imports  from  abroad,  and  the  prohibition 
to  lay  such  duties  on  exports  to  other  countries,  the  power  and  its 
limitations  concerning  imposts." 

The  opinion  then  proceeded  to  elaborately  consider  the  meaning  of 
the  words  "imports,"  '•  exports,"  and  "imposts"  in  the  Constitution, 


1232      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OP   TERRITORY. 

with  reference  to  the  powers  of  Congress,  and  concluded  that  they 
related  only  to  the  bringing  in  of  goods  from  a  country  foreign  to 
the  United  States,  or  the  taking  out  of  goods  from  the  United  States 
to  such  a  country.  From  this  conclusion  the  deduction  was  drawn 
that  the  words  "  imports  "  and  "  exports,"  when  used  in  the  Consti- 
tution with  reference  to  the  power  of  the  several  States,  had  a  similar 
meaning,  and  hence  the  tax  levied  by  the  city  of  Mobile  was  decided 
not  to  be  repugnant  to  the  clause  of  the  Constitution  heretofore  re- 
ferred to,  prohibiting  a  State  "from  laying  imposts  or  duties  on 
imports  or  exports."  In  the  course  of  the  opinion  an  intimation  of 
Mr.  Chief  Justice  Marshall  in  Brown  v.  Maryland,  that  the  words 
"imports"  and  "exports"  might  relate  to  the  movement  of  goods 
between  the  States,  was  referred  to,  and  it  was  expressly  said  that 
this  was  a  mere  suggestion  on  the  part  of  the  Chief  Justice  not  in- 
volved in  the  cause,  and  not  therefore  decided.  So,  also,  the  atten- 
tion of  the  court  was  directed  to  the  case  of  Almy  v.  California  (1860), 
24  How.  169  [404].  That  case  involved  the  validity  of  a  stamp  tax 
imposed  in  California  on  all  bills  of  lading  for  the  shipment  of  gold 
from  California  to  a  point  without  the  State.  The  particular  bill  of 
lading  which  was  in  question  was  for  the  shipment  of  gold  from 
California  to  New  York.  It  was  held  that  this  stamp  tax  was  at 
least  an  indirect  burden  on  exports,  and  hence  was  void,  because  an 
export  tax  within  the  meaning  of  the  Constitution.  In  the  opinion 
in  Woodruff  v.  Parham  it  was  expressly  decided  that  although  the 
conclusion  in  Almy  v.  California,  that  the  tax  was  void,  was  sustained 
by  the  commerce  clause  of  the  Constitution,  which  had  been  referred 
to  in  the  argument  of  that  case,  it  had  been  erroneously  held  that 
"import"  or  "  export,"  within  the  constitutional  sense  of  the  words, 
related  to  the  movement  of  goods  between  the  States,  and  not  exclu- 
sively to  foreign  commerce.  To  the  extent,  therefore,  that  Almy  v. 
California  held  or  intimated  that  an  export  or  import  tax  within  the 
meaning  of  the  Constitution  embraced  anything  but  foreign  commerce, 
it  was  expressly  overruled. 

In  Brown  v.  Houston,  114  U.  S.  622  [333],  decided  in  1884,  four- 
teen years  after  the  decision  in  Woodruff  v.  Parham,  the  question 
which  arose  in  the  latter  case  was  again  presented.  A  tax  levied  by 
the  State  of  Louisiana  on  certain  coal  which  had  come  down  the 
Ohio  river  was  assailed  on  the  ground  that  it  amounted  to  both  an 
export  and  import  tax  within  the  meaning  of  the  Constitution.  The 
court,  speaking  through  Mr.  Justice  Bradley,  said  (p.  628) : 

"  It  was  decided  by  this  court,  in  the  case  of  Woodruff  v.  Parham, 
8  Wall.  123,  that  the  term  'imports,'  as  used  in  that  clause  of  the 
Constitution  which  declares  that  '  no  State  shall  without  the  consent 
of  Congress  lay  any  imposts  or  duties  on  imports  or  exports,'  does 
not  refer  to  articles  carried  from  one  State  into  another,  but  only  to 
articles  imported  from  foreign  countries  into  the  United  States." 

The  opinion,  after  stating  the  facts  which  were  presented  in  Wood- 


DOOLEY  V.   UNITED   STATES.  1233 

ruff  V.  Parham,  and  the  contention  which  was  in  that  case  based  upon 
them,  said  (pp.  628,  629)  : 

"  This  court,  however,  after  an  elaborate  examination  of  the  ques- 
tion, held  that  the  terms  'imports'  and  'exports'  in  the  clause  under 
consideration  had  reference  to  goods  brought  from  or  carried  to  for- 
eign countries  alone,  and  not  to  goods  transported  from  one  State  to 
another.  It  is  unnecessary,  therefore,  to  consider  further  the  question 
raised  by  the  plaintiffs  in  error  under  their  third  assignment  of  error, 
so  far  forth  as  it  is  based  on  the  assumption  that  the  tax  complained 
of  was  an  impost  or  duty  on  imports." 

Thus  treating  the  meaning  of  the  words  "  imports  "  and  "  exports  " 
as  having  been  conclusively  determined  by  Woodruff  v.  Parham,  the 
court  passed  to  the  consideration  of  the  contention  that  the  tax  levied 
in  the  State  of  Louisiana  was  an  export  tax  within  the  meaning  of 
the  Constitution,  because  some  of  the  coal  was  intended  for  export  to 
a  foreign  country,  or  had  been,  as  it  was  claimed,  in  part  actually 
exported  to  such  country. 

Again,  in  Fairbank  v.  United  States  (1900),  181  U.  S.  283,  the  court 
was  called  upon  to  determine  whether  the  requirement  in  an  act  of 
Congress  that  a  revenue  stamp  be  affixed  to  every  bill  of  lading  for 
goods  shipped  to  a  foreign  country  was  a  tax  on  exports.  In  the 
course  of  the  opinion,  in  considering  the  question,  the  court  referred 
to  Almy  V.  California,  24  How.  169  [404],  as  authority  for  the  propo- 
sition that  a  tax  on  the  bill  of  lading  was  a  tax  on  the  movement  of 
the  goods  which  the  bill  of  lading  evidenced.  But  in  referring  to  the 
Almy  case  the  court  was  careful  to  say  (p.  294) : 

"  It  is  true  that  thereafter,  in  Woodruff  v.  Parham,  8  Wall.  123, 
it  was  held  that  the  words  '  imports '  and  '  exports '  as  used  in  the 
Constitution  were  used  to  define  the  shipment  of  articles  between 
this  and  a  foreign  country,  and  not  that  between  the  States,  and 
while,  therefore,  that  case  is  no  longer  an  authority  as  to  what  is  or 
what  is  not  an  export,  the  proposition  that  a  stamp  duty  on  a  bill 
of  lading  is  in  effect  a  duty  on  the  article  transported  remains 
unaffected." 

A  consideration  of  the  opinions  in  Woodruff  v.  Parham  and  Brown 
V.  Houston,  so  recently  in  effect  approved  by  this  court  in  the  case 
of  Fairbank  v.  United  States,  will  make  it  clear  that  an  adherence  to 
the  interpretation  of  the  words  "  export "  and  "  import,"  which  was 
expounded  in  those  cases,  is  essential  to  the  preservation  of  the  ne- 
cessary powers  of  taxation  of  the  several  States,  as  well  as  of  those  of 
the  government  of  the  United  States.  And,  by  implication,  in  a 
number  of  cases  decided  by  this  court  since  the  decision  in  Woodruff 
V.  Parham,  the  doctrine  of  export  and  import  there  defined  has  been, 
if  not  expressly,  at  least  tacitly,  approved  in  many  ways.  Indeed,  it 
may  be  safely  assumed  that  many  State  statutes  levying  taxes  and 
much  legislation  of  Congress  has  been  enacted  upon  the  express  or 
implied  recognition  of  the  settled  construction  of  the  Constitution 


1234      ADDITIONAL   CASES  RELATING   TO   ANNEXATION   OP  TERRITORY. 

hitherto  affixed  to  the  import  and  export  clauses  by  this  Court  in  the 
cases  referred  to.  And  this  will  be  made  obvious  when  it  is  con- 
sidered that  if  the  words  "  export "  and  "  import "  as  used  in  the 
Constitution  be  applied  to  the  movement  of  goods  between  the  States, 
then  it  amounts  to  not  only  an  express  prohibition  on  the  States  to 
impose  any  direct,  but  also  any  indirect,  burden,  and  therefore,  under 
the  doctrine  of  Brown  v.  Maryland,  any  State  tax  law  which  would 
indirectly  burden  the  coming  of  goods  from  one  State  to  the  other 
■would  be  wholly  void.  So  also  as  to  the  government  of  the  United 
States,  if  the  provision  as  to  the  laying  and  collection  of  imposts  be 
not  construed  as  a  "  distinct "  provision  relating  to  foreign  commerce 
and  co-related  with  the  clause  as  to  exports,  it  would  follow,  as  was 
clearly  pointed  out  in  Woodruff  v.  Parham,  that  the  Constitution  had 
granted  on  the  one  hand  a  power  and  immediately  denied  it.  Be- 
sides, it  would  follow  that  all  the  general  powers  of  taxation  con- 
ferred upon  Congress  would  be  limited  by  the  export  clause,  and  thus 
any  domestic  tax,  although  fulfilling  the  requirements  of  uniformity 
and  not  violating  the  prohibition  against  preferences  which  indirectly 
burdeued  the  ultimate  export,  would  be  void  —  a  doctrine  which 
would  manifestly  cause  to  be  invalid  methods  of  taxation  exercised 
by  Congress  from  the  beginning  without  question. 

It  being,  then,  beyond  doubt  that  this  court  has,  in  a  line  of  well- 
considered  cases,  determined  that  the  words  "export"  and  "import" 
when  employed  in  the  Constitution  relate  to  the  bringing  in  of  goods 
from  a  country  foreign  to  the  United  States  and  to  the  carrying  out 
of  goods  from  the  United  States  to  such  a  country,  the  only  question 
remaining  is,  Is  Porto  Rico  a  country  foreign  to  the  United  States  ? 
In  answering  this  question  it  is  manifest,  from  the  entire  reasoning 
of  the  court,  in  the  cases  in  which  it  was  decided  that  the  terms 
"  export "  and  "  import "  relate  to  a  foreign  country  alone,  that  the 
words  "  foreign  country,"  as  used  in  those  opinions,  signified  a  coun- 
try outside  of  the  sovereignty  of  the  United  States  and  beyond  its 
legislative  authority,  and  that  such  meaning  of  those  words  was  ab- 
solutely essential  to  the  process  of  reasoning  by  which  the  conclusion 
in  the  cases  referred  to  was  reached. 

Is  Porto  Kico  a  country  foreign  to  the  United  States  in  the  sense 
that  it  is  not  within  the  sovereignty  and  not  subject  to  the  legisla- 
tive authority  of  the  United  States?  —  is,  then,  the  issue.  In  De 
Lima  v.  Bidwell,  182  U.  S.  1,  and  Dooley  v.  United  States,  182  U.  S. 
222,  it  was  held  that,  instantly  upon  the  ratification  of  the  treaty 
with  Spain,  Porto  Rico  ceased  to  be  a  foreign  country  within  the  mean- 
ing of  the  tariff  laws  of  the  United  States.  In  the  case  of  The 
Diamond  Rings,  183  U.  S.  176,  it  has  just  been  held  that  the  Philip- 
pine Islands  immediately  upon  the  ratification  of  the  treaty  ceased  to 
be  foreign  country  within  the  meaning  of  the  tariff  laws  ;  and  of 
course,  as  these  islands  were  acquired  by  the  same  treaty  by  which 
Porto  Rico  was  acquired,  this  ruling  is  predicated  on  the  decisions  in 


DOOLEY  V.    UNITED   STATES.  1235 

De  Lima  and  Dooley,  above  referred  to.  It  is  true  that  both  in  the 
De  Lima  and  the  Dooley  cases,  as  well  as  in  tfle  case  of  The  Diamond 
Rings,  just  decided,  dissents  were  announced.  None  of  the  dissents 
rested,  however,  upon  the  theory  that  Porto  Rico  or  the  Philippine 
Islands  had  not  come  under  the  sovereignty  and  become  subject  to  the 
legislative  authority  of  the  United  States,  but  were  based  on  the 
ground  that  legislation  by  Congress  was  necessary  to  bring  the  terri- 
tory within  the  line  of  the  tariff  laws  in  force  at  the  time  of  the 
acquisition  ;  and  especially  was  this  the  case  where  the  new  terri- 
tory had  not,  as  the  result  of  the  acquisition,  been  incorporated  into 
the  United  States,  as  an  integral  part  thereof,  though  coming  under 
its  sovereignty  and  subject,  as  a  possession,  to  the  legislative  power 
of  Congress. 

In  Downes  v.  Bidwell,  182  U.  S.  244  [1119],  the  question  was 
whether  a  tax  imposed  by  Congress  on  goods  coming  into  the  United 
States  from  Porto  Rico  was  repugnant  to  that  clause  of  the  Constitu- 
tion requiring  uniformity  "throughout  the  United  States"  of  all 
"duties,  imposts,  and  excises."  The  contention  on  the  one  hand 
was  that,  as  Porto  Rico  had  by  the  treaty  with  Spain  been  acquired 
by  the  United  States,  Congress  could  not  impose  a  burden  on  goods 
coming  from  Porto  Rico,  in  disregard  of  the  requirement  of  uniformity 
"throughout  the  United  States."  On  the  other  hand,  it  was  con- 
tended that,  although  Porto  Rico  had  become  territory  of  the  United 
States  and  was  subject  to  the  legislative  authority  of  Congress,  it  had 
not  been  so  made  a  part  of  the  United  States  as  to  cause  Congress  to 
be  subject,  in  legislating  with  regard  to  that  island,  to  the  uniformity 
provision  of  the  Constitution.  The  court  maintained  the  latter  view. 
While  it  is  true  the  members  of  the  court  who  agreed  in  this  con- 
clusion did  so  for  different  reasons,  nevertheless,  in  all  the  opinions 
delivered  by  the  justices  who  formed  the  majority  of  the  court,  it 
was  declared  that  Porto  Rico  had  come  under  the  sovereignty  and 
was  subject  to  the  legislative  authority  of  the  United  States.  In- 
deed, this  was  controverted  by  no  one,  since  the  members  of  the 
court  who  dissented  did  so  because  they  deemed  that  Porto  Rico  had 
so  entirely  ceased  to  be  foreign  country,  and  had  so  completely  been 
made  a  part  of  the  United  States,  that  Congress  could  not,  in  legislat- 
ing for  that  island,  disregard  the  provision  of  uniformity  throughout 
the  United  States. 

It  having  been  thus  affirmatively  repeatedly  determined  tliat  the 
export  and  import  clauses  of  the  Constitution  refer  only  to  commerce 
with  foreign  countries,  —  that  is,  to  a  country  or  countries  without 
the  sovereignty  and  entirely  beyond  the  legislative  authority  of  the 
United  States  —  and  it  having  been  conclusively  settled  that  Porto 
Rico  is  not  such  a  country,  it  seems  to  me  the  claim  here  made  that 
the  tax  imposed  by  Congress  in  Porto  Rico  is  an  export  or  an  import 
within  the  meaning  of  the  Constitution  is  untenable.  But,  it  is  said, 
if  Porto  Rico  is  not  foreign,  and  therefore  the  tax  laid  on  goods  in 


1236      ADDITIONAL   CASES   RELATING    TO    ANNEXATION   OP   TERRITORY. 

that  island  on  their  arrival  from  the  United  States  is  not  within  the 
purview  of  the  import  find  the  inhibition  of  the  export  clauses  of  the 
Constitution,  then  Porto  liico  is  domestic,  and  the  tax  is  void  because 
repugnant  to  the  first  clause  of  sec.  8  of  Art.  I  of  the  Constitution, 
conferring  upon  Congress  '-the  power  to  lay  and  collect  taxes,  duties^ 
imposts,  and  excises,  .  .  .  but  all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States."  This  contention,  how- 
ever, is  but  a  restatement  of  the  proposition  which  the  court  held  to 
be  unsound  in  Dovvnes  v.  Bidwell;  for  in  that  case  it  was  expressly 
decided  that  a  provision  of  the  statute  now  in  question,  which  im- 
poses a  tax  on  goods  coming  to  the  United  States  from  Porto  Kico, 
was  valid  because  that  island  occupied  such  a  relation  to  the  United 
States  as  empowered  Congress  to  exact  such  a  tax,  since  the  require- 
ment of  uniformity  throughout  the  United  States  was  inapplicable. 
I  do  not  propose  to  recapitulate  the  grounds  of  the  conclusion  so 
elaborately  expressed  by  the  opinions  of  the  majority  of  the  court  in 
that  case,  since  it  suffices  to  say,  for  the  purposes  of  the  uniformity 
clause,  that  decision  is  controlling  in  this  case.  If  the  contention  be 
that  because  the  impost  clause  of  the  Constitution  refers  only  to 
foreign  commerce,  therefore  there  was  no  power  in  Congress  to  im- 
pose the  tax  in  question,  or  that  such  power  is  impliedly  denied,  the 
contention  is  unfounded  and  really  but  amounts  to  an  indirect  attack 
upon  the  doctrines  announced  in  Woodruff  v.  Parham,  Brown  v. 
Houston,  and  Fairbank  v.  United  States.  As  held  in  Woodruff  v. 
Parham,  the  impost  clause  and  the  export  clause  are  co-related  and 
refer  to  a  distinct  subject,  that  is,  foreign  commerce.  By  what  pro- 
cess of  reasoning  it  can  be  said  that  because  a  special  enumeration  on 
a  particular  subject  of  taxation  and  a  particular  limitation  as  to  that 
subject  is  expressed  in  the  Constitution,  therefore  other  and  general 
powers  of  taxation  not  relating  to  the  subject  in  question  are  taken 
away,  is  not  by  me  perceived.  Certainly  the  argument  cannot  be 
that  because  a  power  has  been  conferred  on  Congress  by  the  Consti- 
tution to  levy  a  tax  on  foreign  commerce,  therefore  the  Constitution 
has  taken  away  from  Congress  power  to  tax  even  indirectly  domestic 
commerce.  Because  the  grant  of  power  as  to  imposts  contained 
in  the  first  clause 'of  sec.  8  of  Art.  I  of  the  Constitution  relates  to 
foreign  commerce,  there  arises  no  limitation  on  the  general  authority 
to  tax  as  to  all  other  subjects,  which  flows  from  the  other  provisions 
of  the  same  clause.  Referring  to  such  power  —  the  authority  to  levy 
and  collect  taxes^  duties,  imposts,  and  excises  —  the  court  said,  in 
the  License  Tax  Cases  (1866),  5  Wall.  462,  471 : 

"  The  power  of  Congress  to  tax  is  a  very  extensive  power.  It  is 
given  in  the  Constitution,  with  only  one  exception  and  only  two 
qualifications.  Congress  cannot  tax  exports,  and  it  must  impose 
direct  taxes  by  the  rule  of  apportionment,  and  indirect  taxes  by  the 
rule  of  uniformity.  Thus  limited,  and  thus  only,  it  reaches  every 
subject,  and  may  be  exercised  at  discretion." 


I 


DOOLEY    V.    UNITED    STATES.  1237 

Of  course,  the  Constitution  contemplates  freedom  of  commerce 
between  the  States,  but  it  also  confers  upon  Congress  the  powers  of 
taxation  to  which  I  have  referred,  and  safe-guards  the  freedom  of 
commerce  and  equality  of  taxation  between  the  States  by  conferring 
upon  Congress  the  power  to  regulate  such  commerce,  by  providing 
for  the  apportionment  of  direct  taxes,  by  exacting  uniformity  through- 
out the  United  States  in  the  laying  of  duties,  imposts,  and  excises, 
and  by  prohibiting  preferences  between  ports  of  different  States. 
Indeed,  when  the  argument  which  I  am  considering  is  properly 
analyzed,  it  amounts  to  a  denial,  as  I  have  said,  of  the  substantial 
powers  of  Congress  with  regard  to  domestic  taxation,  and,  as  I  undel-- 
stand  it,  overthrows  the  settled  interpretation  of  the  Constitution, 
long  since  announced  and  consistently  adhered  to. 

Mk.  Chief  Justice  Fullek,  with  whom  concurred  Mr.  Justice  Har- 
LAX,  Mr.  Justice  Brewer,  and  Mr.  Justice  Feckham,  dissenting : 

This  is  an  action  brought  to  recover  back  duties  levied  and  col- 
lected under  the  Porto  Rican  act  of  April  12,  1900  (31  Stat.  77, 
chap.  191),  at  San  Juan,  on  articles  shipped  to  that  port  by  citizens 
of  New  York  from  the  State  of  New  York.  Plaintiffs  were  engaged 
in  the  business  of  commission  merchants,  having  their  main  ofhce  in 
the  city  of  New  York  and  a  branch  office  at  San  Juan. 

The  second  section  of  the  act  provides  that,  from  the  time  of  its 
passage,  "  the  same  tariffs,  customs,  and  duties  shall  be  levied,  col- 
lected, and  paid  upon  all  articles  imported  into  Porto  Rico  from  ports 
other  than  those  of  the  United  States,  which  are  required  by  law  to 
be  collected  upon  articles  imported  into  the  United  States  from  for- 
eign countries,"  with  some  exceptions  not  material  here. 

The  third  section,  by  which  these  duties  are  imposed,  reads: 
"  That  on  and  after  the  passage  of  this  act  all  merchandise  coming 
into  the  United  States  from  Porto  Rico  and  coming  into  Porto  Rico 
from  the  United  States  shall  be  entered  at  the  several  ports  of  entry 
upon  payment  of  fifteen  per  centum  of  the  duties  which  are  required 
to  be  levied,  collected,  and  paid  upon  like  articles  of  merchandise 
imported  from  foreign  countries ;  and,  in  addition  thereto,  upon 
articles  of  merchandise  of  Porto  Rican  manufacture  coming  into  the 
United  States  and  withdrawn  for  consumption  or  sale,  upon  payment 
of  a  tax  equal  to  the  internal  revenue  tax  imposed  in  the  United 
States  upon  the  like  articles  of  merchandise  of  domestic  manufac- 
ture ;  "  and  it  was  further  provided  that  articles  of  merchandise 
manufactured  in  the  United  States  coming  into  Porto  Rico  should, 
after  entry,  be  subject  to  whatever  internal  revenue  taxes  might  be 
in  force  on  the  island.  And  also  that  whenever  the  legislative 
assembly  of  Porto  Rico  should  have  enacted  and  put  into  operation  a 
system  of  local  taxation,  and  proclamation  thereof  had  been  made, 
"  all  tariff  duties  on  merchandise  and  articles  going  into  Porto  Rico 
from  the  United  States  or  coming  into  the  United  States  from  Porto 
Rico  shall  cease." 


1238      ADDITIONAL    CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

Assuming  that  "  the  United  States  "  as  referred  to  is  the  United 
States  as  constituted  at  the  date  of  the  proclamation  of  the  treaty, 
the  act,  explicitly  recognizing  the  distinction  between  tariff  duties 
and  internal  taxes,  is  in  respect  of  such  duties  an  act  to  raise 
revenue  by  taxing  the  commerce  of  the  people  of  every  State  and 
Territory. 

The  fact  that  the  net  proceeds  of  the  duties  are  appropriated  by 
the  act  for  use  in  Porto  Rico  does  not  affect  their  character  any  more 
than  if  so  appropriated  by  another  and  separate  act.  The  taxation 
reaches  the  people  of  the  States  directly,  and  is  national,  and  not 
local,  even  though  the  revenue  derived  therefrom  is  devoted  to  local 
purposes. 

Customs  duties  are  duties  imposed  on  imports  or  exports,  and,  ac- 
cording to  the  terms  of  this  act,  these  are  customs  duties,  not  levied 
according  to  the  rule  of  uniformity,  and  laid  on  exports  as  well  as 
imports. 

By  the  first  clause  of  sec.  8  of  Art.  I  of  the  Constitution,  Congress 
is  empowered  to  lay  and  collect  duties,  imposts,  and  excises,  subject 
to  the  rule  of  uniformity,  but  this  court  has  held  that  customs  duties 
are  only  leviable  on  foreign  commerce  (Woodruff  v.  Parham,  8  Wall. 
123),  and  that  the  uniformity  required  is  geographical  merely 
(Knowlton  v.  Moore,  178  U.  S.  41).  By  the  third  clause  of  the  same 
section.  Congress  is  empowered  "to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes." 
The  power  to  tax  and  the  power  to  regulate  commerce  are  distinct 
powers,  yet  the  power  of  taxation  may  be  so  exercised  as  to  operate 
in  regulation  of  commerce. 

Clauses  5  and  6  of  sec.  9  provide : 

"  No  tax  or  duty  shall  be  laid  on  any  articles  exported  from  any 
State. 

"No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another ;  nor  shall 
vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties  in  another." 

These  provisions  were  intended  to  prevent  the  application  of  the 
power  to  lay  taxes  or  duties,  or  the  power  to  regulate  commerce,  so 
as  to  discriminate  between  one  part  of  the  country  and  another.  The 
regulation  of  commerce  by  a  majority  vote,  and  the  exemption  of  ex- 
ports from  duties  or  taxes,  were  parts  of  one  of  the  great  com- 
promises of  the  Constitution. 

If,  after  the  cession,  Porto  Rico  remained  a  foreign  country,  the 
prohibition  of  clause  5  would  be  fatal  to  these  duties ;  while  if  Porto 
Rico  became  domestic,  then,  as  they  are  customs  duties,  they  could 
not  be  sustained,  according  to  Woodruff  v.  Parham,  under  the  first 
clause  of  sec.  8;  and  were  also  prohibited  by  clause  5  of  sec.  9, 
whether  customs  duties  or  not,  if  the  application  of  that  clause  is  not 
limited  to  foreign  commerce. 


i 


DOOLEY  V.    UNITED  STATES.  1239 

The  prohibition  that  "  no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  State  "  negatives  the  existence  of  any  power  in  Con- 
gress to  lay  taxes  or  duties  in  any  form  on  articles  exported  from  a 
State,  irrespective  of  their  destination,  and,  this  being  so,  the  act  in 
imposing  the  duties  in  question  is  invalid,  whether  Forto  Rico  after 
its  passage  was  a  foreign  or  reputed  foreign  territory,  a  domestic 
territory,  or  a  territory  subject  to  be  dealt  with  at  the  will  of  Con- 
gress regardless  of  constitutional  limitations. 

Confessedly  the  prohibition  applies  to  foreign  commerce,  and  the 
question  is  whether  it  is  confined  to  that ;  in  other  words,  whether 
language  which  embraces  all  articles  exported  can  be  properly  re- 
stricted to  particular  exports.  On  what  ground  can  the  insertion  in 
this  comprehensive  denial  of  power  of  the  words  "to  foreign  coun- 
tries," thereby  depriving  it  of  effect  on  commerce  other  than  foreign, 
be  justified? 

If  the  words  "  exported  from  any  State  "  apply  only  to  articles  ex- 
ported from  a  State  to  a  foreign  country,  it  would  seem  to  follow  that 
the  broad  power  granted  to  Congress  "  to  lay  and  collect  taxes,"  for 
the  purposes  specified  in  the  Constitution,  may  be  exerted  in  the  way 
of  taxation  on  articles  exported  from  one  State  to  another.  The  right 
to  carry  legitimate  articles  of  commerce  from  one  State  to  another 
State  without  interference  by  national  or  State  authority  was,  it  has 
always  been  supposed,  firmly  established  and  secured  by  the  Consti- 
tution. But  that  right  may  be  destroyed  or  greatly  impaired  if  it  be 
true  that  articles  may  be  taxed  by  Congress  by  reason  of  their  being 
carried  from  one  State  to  another. 

Undoubtedly  the  clause  confines  the  power  to  lay  customs  duties  or 
imposts  to  imports  only.  This  was  so  stated  by  Mr.  Hamilton  in  the 
thirty-second  number  of  The  Federalist :  "  The  first  clause  of  the  same 
section  [sec.  8]  empowers  Congress  '  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises ; '  and  the  second  clause  of  the  tenth  section  of 
the  same  article  declares  that  '  no  State  shall,  without  the  consent  of 
Congress,  lay  any  imposts  or  duties  on  imports  or  exjyorts,  except  for 
the  purpose  of  executing  its  inspection  laws.'  Hence  would  result  an 
exclusive  power  in  the  Union  to  lay  duties  on  imports  and  exports, 
with  the  particular  exception  mentioned.  But  this  power  is  abridged 
by  another  clause,  which  declares  that  no  tax  or  duty  shall  be  laid 
on  articles  exported  from  any  State  ;  in  consequence  of  which  quali- 
fication it  now  only  extends  to  the  duties  on  imports.''^ 

Nevertheless,  because  the  clause  secured  that  object,  it  is  not  to  be 
assumed  that  it  was  not  also  intended  to  secure  unrestrained  inter- 
course between  the  different  parts  of  a  common  country. 

As  was  said  in  Gibbons  v.  Ogden,  the  right  of  intercourse  between 
State  and  State  was  derived  "from  those  laws  whose  authority  is 
acknowledged  by  civilized  man  throughout  the  world.  .  .  .  The  Con- 
stitution found  it  an  existing  right,  and  gave  to  Congress  the  power 
to  regulate  it."     9  Wheat.  211  [235].     From  this  grant,  however,  the 


I 


1240      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

power  to  regulate  by  the  levy  of  any  tax  or  duty  on  articles  exported 
from  any  State  was  expressly  withheld. 

In  Woodruff  v.  Parham,  8  Wall.  132,  Mr.  Justice  Miller,  in  sup- 
port of  the  conclusion  that  clause  1  of  sec.  8  was  confined  as  to  cus- 
toms duties  to  foreign  commerce,  said:  "Is  the  word  'impost,'  here 
used,  intended  to  confer  upon  Congress  a  distinct  power  to  levy  a 
tax  upon  all  goods  or  merchandise  carried  from  one  State  into  an- 
other ?  Or  is  the  power  limited  to  duties  on  foreign  imports  ?  If  the 
former  be  intended,  then  the  power  conferred  is  curiously  rendered 
nugatory  by  the  subsequent  clause  of  the  ninth  section,  which  de- 
clares that  no  tax  shall  be  laid  on  articles  exported  from  any  State,  for 
no  article  can  be  imported  from  one  State  into  another,  which  is  not, 
at  the  same  time,  exported  from  the  former." 

In  that  case,  clause  2  of  sec.  10  was  under  consideration :  "  Xo 
State  shall,  without  the  consent  of  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws ;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall  be 
for  the  use  of  the  Treasury  of  the  United  States ;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress." 

It  was  held  that  this  referred  to  foreign  commerce  only,  and  "that 
no  intention  existed  to  prohibit,  by  this  clause,  the  right  of  one  State 
to  tax  articles  brought  into  it  from  another."  This  was  reaffirmed 
in  Brown  v.  Houston,  114  U.  S.  622,  630  [333],  and  Mr.  Justice 
Bradley  said :  "  But  in  holding,  with  the  decision  in  Woodruff  v. 
Parham,  that  goods  carried  from  one  State  to  another  are  not  im- 
ports or  exports  within  the  meaning  of  the  clause  which  prohibits  a 
State  from  laying  any  impost  or  duty  on  imports  or  exports,  we  do 
not  mean  to  be  understood  as  holding  that  a  State  may  levy  import  or 
export  duties  on  goods  imported  from  or  exported  to  another  State. 
We  only  mean  to  say  that  the  clause  in  question  does  not  prohibit  it. 
Whether  the  laying  of  such  duties  by  a  State  would  not  violate  some 
other  provision  of  the  Constitution  —  that,  for  example,  which  gives 
to  Congress  the  power  to  regulate  commerce  with  foreign  nations, 
among  the  several  States,  and  with  the  Indian  tribes  —  is  a  different 
question." 

The  question  has  been  repeatedly  answered  by  this  court  to  the 
effect-"  that  no  State  has  the  right  to  lay  a  tax  on  interstate  com- 
merce in  any  form,  whether  by  way  of  duties  laid  on  the  transporta- 
tion of  the  subjects  of  that  commerce,  or  on  the  receipts  derived  from 
that  transportation,  or  on  the  occupation  or  business  of  carrying  it  on, 
for  the  reason  that  such  taxation  is  a  burden  on  that  commerce,  and 
amounts  to  a  regulation  of  it,  which  belongs  solely  to  Congress." 
Lyng  V.  Michigan,  135  U.  S.  166.  But  if  that  power  of  regulation  is 
absolutely  unrestricted  as  respects  interstate  commerce,  then,  the  very 
unity  the  Constitution  was  framed  to  secure  can  be  set  at  naught  by 
a  legislative  body  created  by  that  instrument. 


DOOLEY   V.    UNITED    STATES.  1241 

Snch  a  conclusion  is  wholly  inadmissible.  The  power  to  regulate 
interstate  commerce  was  granted  in  order  that  trade  between  the 
States  might  be  left  free  from  discriminating  legislation,  and  not  to 
impart  the  power  to  create  antagonistic  con:imercial  relations  between 
them. 

The  prohibition  of  preference  of  ports  was  coupled  with  the  pro- 
hibition of  taxation  on  articles  exported.  The  citizens  of  each  State 
were  declared  "entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  States,"  and  that  included  the  right  of  ingress  and 
egress,  and  the  enjoyment  of  the  privileges  of  trade  and  commerce. 
Slaughter-House  Cases,  16  Wall.  36  [18]. 

And  so  the  court,  in  Woodrutf  v.  Farham,  as  the  quotation  from 
its  opinion  by  Mr.  Justice  Miller  demonstrates,  did  not  put  upon  the 
absolute  and  general  prohibition  of  power  to  lay  any  tax  or  duty  on 
articles  exported  from  any  State  that  narrow  construction  which 
would  limit  it  to  exports  to  a  foreign  country,  and  would  concede 
the  power  to  Congress  to  impose  duties  on  exports  from  one  State  to 
another  in  regulation  of  interstate  commerce. 

The  power  to  lay  duties  in  regulation  of  commerce  with  foreign 
nations  is  relied  on  as  the  source  of  power  to  pass  laws  for  the  pro- 
tection and  encouragement  of  domestic  industries,  and  except  for  this 
clause  the  same  effect  would  be  attributed  to  the  power  to  regulate 
commerce  among  the  States.  This,  hovrever,  the  clause,  literally 
read,  prevents,  and  to  limit  its  application  to  foreign  commerce,  as 
the  power  to  lay  customs  duties  under  the  first  clause  of  sec.  8  has 
been  limited,  would  defeat  the  manifest  purpose  of  the  Constitution 
by  enabling  discriminating  taxes  and  duties  to  be  laid  against  one 
section  of  the  country  as  distinguished  from  another. 

And  if  the  prohibition  be  not  confined  to  foreign  commerce,  then  it 
applies  to  all  commerce  not  wholly  internal  to  the  respective  States, 
and  the  destination  of  articles  exported  from  a  State  cannot  effect, 
or  be  laid  hold  of  to  affect,  the  result. 

In  short,  clause  5  operates,  and  was  intended  to  operate,  to  except 
the  power  to  lay  any  tax  or  duty  on  articles  exported  from  the  gen- 
eral power  to  regulate  commerce,  whether  interstate  or  foreign.  And 
this  is  equally  true  in  respect  of  commerce  with  the  Territories,  for 
the  power  to  regulate  commerce  includes  the  power  to  regulate  it, 
not  only  as  between  foreign  countries  and  the  Territories,  but  also  by 
necessary  im[)lication  as  between  the  States  and  Territories.  Stout- 
enburgh  v.  Hennick,  129  U.  S.  141. 

Nothing  is  better  settled  than  that  the  States  cannot  interfere  with 
interstate  commerce,  yet  it  is  easy  to  see  that  if  the  exclusive  delega- 
tion to  Congress  of  the  power  to  regulate  commerce  did  not  embrace 
commerce  between  the  States  and  Territories,  the  interference  by  the 
States  with  such  commerce  might  be  justified. 

Again,  if  in  any  view  these  duties  could  be  treated  as  other  than  cus- 
tom duties  the  result  would  be  the  same,  inasmuch  as  the  goods  were 


1242      ADDITIONAL   CASES   RELATING   TO    ANNEXATION    OF   TERRITORY. 

articles  exported  from  New  York,  and  there  was  a  total  lack  of  power 
to  lay  any  tax  or  duty  on  such  articles. 

The  prohibition  on  Congress  is  explicit,  and  noticeably  different 
from  the  prohibition  on  the  States.  The  State  is  forbidden  to  lay 
"any  imposts  or  duties;  "  Congress  is  forbidden  to  lay  "any  tax  or 
duty."  The  State  is  forbidden  from  laying  imposts  or  duties  "on 
imports  and  exports,"  that  is,  articles  coming  into  or  going  out  of  the 
United  States.  Congress  is  forbidden  to  tax  "articles  exported /rom 
amj  StafeJ' 

The  plain  language  of  the  Constitution  should  not  be  made  "blank 
paper  by  construction,"  and  its  specific  mandate  ought  to  be  obeyed. 

As  said  in  Marbury  v.  Madison,  "It  is  declared  that  'no  tax  or 
duty  shall  be  laid  on  articles  exported  from  any  state.'  Suppose  a 
duty  on  the  export  of  cotton,  of  tobacco,  or  of  flour ;  and  a  suit  insti- 
tuted to  recover  it.  Ought  judgment  to  be  rendered  in  such  a  case  ? 
Ought  the  judges  to  close  their  eyes  on  the  Constitution,  and  only  see 
the  law  ?  "     1  Cranch,  137,  178  [815]. 

Nor  is  the  result  affected  by  the  fact  that  the  collection  of  these 
duties  was  at  Porto  Eico. 

In  Brown  v.  Maryland,  12  Wheat.  419,  437  [303],  Chief  Justice 
Marshall  said :  "  An  impost,  or  duty  on  imports,  is  a  custom  or  a  tax 
levied  on  articles  brought  into  a  country,  and  is  most  usually  secured 
before  the  importer  is  allowed  to  exercise  his  rights  of  ownership 
over  them,  because  evasions  of  the  law  can  be  prevented  more  cer- 
tainly by  executing  it  while  the  articles  are  in  its  custody.  It  would 
not,  however,  be  less  an  impost  or  duty  on  the  articles  if  it  were  to  be 
levied  on  them  after  they  were  landed.  The  policy  and  consequent 
practice  of  lev3nng  or  securing  the  duty  before  or  on  entering  the 
port  does  not  limit  the  power  to  that  state  of  things,  nor,  con- 
sequently, the  prohibition,  unless  the  true  meaning  of  the  clause  so 
confines  it.  What,  then,  are  '  imports  ? '  The  lexicons  inform  us 
they  are  'things  imported.'  If  we  appeal  to  usage  for  the  meaning 
of  the  word,  we  shall  receive  the  same  answer.  They  are  the  articles 
themselves  which  are  brought  into  the  country.  'A  duty  on  imports,' 
then,  is  not  merely  a  duty  on  the  act  of  importation,  but  is  a  duty  on 
the  thing  imported.  It  is  not,  taken  in  its  literal  sense,  confined  to  a 
duty  levied  while  the  article  is  entering  the  country,  but  extends  to 
a  duty  levied  after  it  has  entered  the  country." 

And  so  of  exports.  They  are  the  things  exported  —  the  articles 
themselves.  A  duty  on  exports  is  not  merely  a  duty  on  the  act  of  ex- 
portation, but  is  a  duty  on  the  article  exported,  and  the  article  exported 
remains  such  until  it  has  reached  its  final  destination.  The  place  of 
collection  is  purely  incidental,  and  immaterial  on  the  question  of 
power. 

But  we  are  told  that  these  duties  were  laid,  not  on  articles  exported 
from  the  State  of  New  York,  but  on  articles  imported  into  Porto  Rico. 
The  language  used,  however,  precludes  this  contention,  and  there  is 


DOOLEY   V.    UNITED   STATES.  1243 

nothing  in  the  act  to  indicate  that  at  some  particular  point  on  a  voyage 
articles  exported  were  to  cease  to  be  such  and  to  become  imports,  and 
nothing  in  the  facts  in  this  case  to  indicate  a  sea  change  of  that  sort 
as  to  these  goods.  The  geographical  origin  of  the  shipment  controls, 
and,  as  heretofore  said,  it  is  not  material  whether  the  duties  were 
collectible  at  the  place  of  exportation  or  at  Porto  Rico.  They  were 
imposed  on  articles  exported  from  the  State  of  New  York,  and  before 
the  articles  had  reached  their  ultimate  destination  and  been  mingled 
with  the  common  mass  of  property  on  the  island. 

Chief  Justice  Marshall  disposed  of  the  suggested  evasion  thus  : 
"  Suppose  revenue  cutters  were  to  be  stationed  off  the  coast  for  the 
purpose  of  levying  a  duty  on  all  merchandise  found  in  vessels  which 
were  leaving  the  United  States  for  foreign  countries  ;  would  it  be  re- 
ceived as  an  excuse  for  this  outrage  were  the  government  to  say  that 
exportation  meant  no  more  than  carrying  goods  out  of  the  country, 
and  as  the  prohibition  to  lay  a  tax  on  imports,  or  things  imported, 
ceased  the  instant  they  were  brought  into  the  country,  so  the  prohi- 
bition to  tax  articles  exported  ceased  when  they  were  carried  out  of 
the  country  ?  "     12  Wheat.  445. 

There  is  no  difference  in  principle  between  the  case  supposed  and 
that  before  us.  The  course  of  transportation  is  arrested  until  the 
exaction  is  paid. 

The  proposition  that  because  the  proceeds  of  these  duties  were  to 
be  used  for  the  benefit  of  Porto  Kico  they  might  be  regarded  as  if 
laid  by  Porto  Rico  itself  with  the  consent  of  Congress,  and  were 
therefore  lawful,  will  not  bear  examination.  No  money  can  be  drawn 
from  the  Treasury  except  in  consequence  of  appropriations  made  by 
law.  This  act  does  not  appropriate  a  fixed  sum  for  the  benefit  of 
Porto  Rico,  but  provides  tliat  the  money  collected,  and  collected  from 
citizens  of  the  United  States,  in  every  port  of  the  United  States,  sliall 
be  placed  in  a  separate  fund  or  subsequently  in  the  Treasury  of  Porto 
Rico,  to  be  expended  for  the  government  and  benefit  thereof.  And 
although  the  destination  of  the  proceeds  in  this  way  were  lawful,  it 
would  not  convert  duties  on  articles  exported  from  the  States  into 
local  taxes. 

States  may,  indeed,  under  the  Constitution,  lay  duties  on  foreign 
imports  and  exports,  for  the  use  of  the  Treasury  of  the  United  States, 
with  the  consent  of  Congress,  but  they  do  not  derive  the  power  from 
the  general  government.  The  power  preexisted,  and  it  is  its  exercise 
only  that  is  subjected  to  the  discretion  of  Congress. 

Congress  may  lay  local  taxes  in  the  Territories,  affecting  persons  and 
property  therein,  or  authorize  territorial  legislatures  to  do  so,  but  it 
cannot  lay  tariff  duties  on  articles  exported  from  one  State  to  another, 
or  from  any  State  to  the  Territories,  or  from  any  State  to  foreign 
countries,  or  grant  a  power  in  that  regard  which  it  does  not  possess. 
But  the  decision  now  made  recognizes  such  powers  in  Congress  as  will 
enable  it,  under  the  guise  of  taxation,  to  exclude  the  products  of  Porto 


1244      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

Eico  from  the  -States  as  well  as  the  products  of  the  States  from 
Porto  Rico ;  and  this,  notwithstanding  it  was  held  in  De  Lima  v. 
Bidwell,  182  U.  S.  1,  that  Porto  Rico  after  the  ratification  of  the  treaty 
with  Spain  ceased  to  be  foreign  and  became  domestic  territory. 

My  Brothers  Harlan,  Brewek,  and  Peckham  concur  in  this 
dissent. 

We  think  it  clear  on  this  record  that  plaintiffs  were  entitled  to 
recover,  and  that  the  judgment  should  be  reversed. 


HAWAII   V.   MANKICHI. 

190  U.   S.  197,  23  Sup.  Ct.  Rep.  787.     1903. 

This  was  a  petition  by  Mankichi  for  a  writ  of  habeas  corpiis  to 
obtain  his  release  from  the  Oahu  convict  prison,  where  he  is  confined 
upon  conviction  for  manslaughter,  in  alleged  violation  of  the  Consti- 
tution, in  that  he  was  tried  upon  an  indictment  not  found  by  a  grand 
jury,  and  convicted  by  the  verdict  of  nine  out  of  twelve  jurors,  the 
other  three  dissenting  from  the  verdict. 

Following  the  usual  course  of  procedure  in  the  Republic  of  Hawaii, 
prior  to  its  incorporation  as  a  Territory  of  the  United  States,  the 
prisoner  was  tried  upon  an  indictment  much  in  the  form  of  an  inform- 
ation at  common  law,  by  the  Attorney  General,  and  indorsed  "a  true 
bill,  found  this  4th  day  of  May,  a.  d.  1899.  A.  Perry,  first  judge  of 
the  Circuit  Court,"  etc. 

From  an  order  of  the  United  States  District  Court,  discharging  the 
prisoner,  the  Attorney  General  of  the  Territory  appealed  to  this  court. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court: 

The  question  involved  in  this  case  is  an  extremel}'  simple  one. 
The  difficulty  is  in  fixing  upon  the  principles  applicable  to  its  solu- 
tion. By  a  joint  resolution  adopted  by  Congress,  July  7,  1898  (30 
Stat.  750),  known  as  the  Newlands  resolution,  and  with  the  consent 
of  the  Republic  of  Hawaii,  signified  in  the  manner  provided  in  its 
Constitution,  the  Hawaiian  Islands  and  their  dependencies  were  an- 
nexed ''as  a  part  of  the  Territory  of  the  United  States,  and  subject  to 
the  sovereign  dominion  thereof,"  with  the  following  condition:  "The 
municipal  legislation  of  the  Hawaiian  Islands,  not  enacted  for  the  ful- 
fillment of  the  treaties  so  extinguished,  and  not  inconsistent  with  this 
joint  resolution  nor  contrary  to  the  Constitution  of  the  Uiiited  States, 
nor  to  any  existing  treaty  of  the  United  States,  shall  remain  in  force 
until  the  Congress  of  the  United  States  shall  otherwise  determine." 
The  material  parts  of   this  resolution  are  printed   in  the    margin.^ 

^  Joint  Kesolutiou  to  Provide  for  Annexing  the  Hawaiian  Islands  to  the  United 
States  (30  Stat.  750). 

Wiiereas  the  government  of  the  Republic  of  Hawaii  having,  in  due  form  signified 
its  consent,  in  the  manner  provided  by  its  Constitution,  to  cede,  absolutely  and  without 


HAWAII   V.    MANKICHI.  1245 

Though  the  resolution  was  passed  July  7,  the  formal  transfer  was 
not  made  until  August  12,  when,  at  noon  of  that  day,  the  American 
flag  was  raised  over  the  government  house,  and  the  islands  ceded  with 
appropriate  ceremonies  to  a  representative  of  the  United  States.  Un- 
der the  conditions  named  in  this  resolution,  the  Hawaiian  Islands  re- 
mained under  the  name  of  the  "Republic  of  Hawaii"  until  June  14, 
1900,  when  they  were  formerly  incorporated  by  act  of  Congress  under 
the  name  of  the  "Territory  of  Hawaii."  (31  Stat.  141,  chap.  339.) 
By  this  act  the  Constitution  was  formerly  extended  to  these  islands 
(Sec.  5),  and  special  provisions  made  for  empaneling  grand  juries, 
and  for  unanimous  verdicts  of  petty  juries.     (Sec.  83.) 

The  question  is  whether,  in  continuing  the  municipal  legislation 
of  the  islands  not  contrary  to  the  Constitution  of  the  United  States, 
it  was  intended  to  abolish  at  once  the  criminal  procedure  theretofore 
in  force  upon  the  islands,  and  to  substitute  immediately,  and  without 

reserve,  to  the  United  States  of  America,  all  rijrhts  of  sovereignty  of  whatsoever  kind 
in  and  over  the  Hawaiian  Islands  and  their  dependencies,  and  also  to  cede  and  transfer 
to  the  United  States  the  absolute  fee  and  ownership  of  all  public,  government,  or 
Crown  lands,  public  buildings  or  edifices,  ports,  harbors,  military  equipment,  and  all 
other  public  property  of  every  kind  and  description  belonging  to  the  government  of 
the  Hawaiian  Islands,  together  with  every  right  and  appurtenance  thereunto  appertain- 
ing :     Therefore, 

Resolved  bi/  the  Senate  and  House  of  Representatives  of  the  United  States  of  America 
in  Congress  assembled,  That  said  cession  is  accepted,  ratified,  and  confirmed,  and  that 
the  said  Hawaiian  Islands  and  their  dependencies  be,  and  they  are  hereby,  annexed  as 
a  i)art  of  the  territory  of  the  United  States  and  are  subject  to  the  sovereign  dominion 
thereof,  and  that  all  and  singular  the  property  and  rights  hereinbefore  mentioned  are 
vested  in  the  United  States  of  America. 

Until  Congress  shall  provide  for  the  government  of  such  islands,  all  the  civil,  judi- 
cial, and  military  powers  exercised  by  the  officers  of  the  existing  government  in  said 
islands  shall  be  vested  in  such  person  or  persons,  and  shall  be  exercised  in  such  man- 
ner, as  the  President  of  the  United  States  snail  direct ;  and  the  President  shall  have 
power  to  remove  said  officers  and  fill  tlie  vacancies  so  occasioricd. 

The  existing  treaties  of  the  Hawaiian  Islands  with  foreign  nations  shall  forthwith 
cease  and  determine,  being  replaced  by  such  treaties  as  may  exist,  or  as  may  be  here- 
after concluded,  between  the  United  States  and  such  foreign  nation.  The  municipal 
legislation  of  the  Hawaiian  Islands,  not  enacted  for  the  fnlfillnieut  of  the  treaties  so  ex- 
tinguished, and  not  inconsistent  with  this  joint  resolution  nor  contrary  to  the  Consti- 
tution of  the  United  States,  nor  to  any  existing  treaty  of  the  United  States,  shall 
remain  in  force  until  the  Congres^f  tiie  United  States  shall  otherwise  determine. 

Until  legislation  shall  be  enai-ted  extending  the  United  States  customs  laws  and 
regulations  to  the  Hawaiian  Islands,  the  existing  customs  relations  of  the  Hawaiian 
Islands  with  the  United  States  and  other  countries  shall  remain  unchanged. 

There  shall  be  no  further  immigration  of  Chinese  into  the  Hawaiian  Islands,  except 
upon  such  conditions  as  are  now  or  may  hereafter  be  allowed  by  the  laws  of  the 
United  States  ;  and  no  Chinese,  by  reason  of  anything  herein  contained,  shall  be 
allowed  to  enter  the  United  States  from  the  Hawaiian  Islands. 

The  President  shall  appoint  five  cuminissioners,  at  least  two  of  whom  shall  be  resi- 
dents of  the  Hawaiian  Islands,  who  shall,  as  soon  as  reasonably  practicable,  recommend 
to  Congress  such  legislation  concerning  the  Hawaiian  Islands  as  they  shall  deem 
necessary  or  proper. 


1246      ADDITIONAL   CASES  RELATING   TO   ANNEXATION   OF   TERRITORY. 

new  legislation,  the  common  law  proceedings  by  graud  and  petit  jury, 
which  had  been  held  applicable  to  other  organized  Territories.  Web- 
ster V.  Reid,  11  How.  437  ;  American  Pub.  Co.  v.  Fisher,  166  U.  S. 
464;  Thompson  v.  Utah,  170  U.  S.  343  [831],  though  we  have  also 
held  that  the  States,  when  once  admitted  as  such,  may  dispense  with 
grand  juries,  Hurtado  v.  California,  110  U.  S.  510  [905],  and  per- 
haps allow  verdicts  to  be  rendered  by  less  than  a  unanimous  vote. 
American  Publishing  Co.  v.  Fisher,  166  U.  S.  464  ;  Thompson  o.  Utah, 
170  U.  S.  343  [831]. 

In  fixing  upon  the  proper  construction  to  be  given  to  this  resolu- 
tion, it  is  important  to  bear  in  mind  the  history  and  condition  of  the 
islands  prior  to  their  annexation  by  Congress.  Since  1847  they  had 
enjoyed  the  blessings  of  a  civilized  government,  and  a  system  of  juris- 
prudence modeled  largely  upon  the  common  law  of  England  and  the 
United  States.  Though  lying  in  the  tropical  zone,  the  salubrity  of 
their  climate  and  the  fertility  of  their  soil  had  attracted  thither  large 
numbers  of  people  from  Europe  and  America,  who  brought  with  them 
political  ideas  and  traditions  which,  about  sixty  years  ago,  found 
expression  in  the  adoption  of  a  code  of  laws  appropriate  to  their  new 
conditions.  Churches  were  founded,  schools  opened,  courts  of  justice 
established,  and  civil  and  criminal  laws  administered  upon  substan- 
tially the  same  principles  which  prevailed  in  the  two  countries  from 
which  most  of  the  immigrants  had  come.  Taking  the  lead,  however, 
in  a  change  which  has  since  been  adopted  by  several  of  the  United 
States,  no  provision  was  made  for  grand  juries,  and  criminals  were 
prosecuted  upon  indictments  found  by  judges.  By  a  la\v  passed  in 
1847,  the  number  of  a  jur}'  was  fixed  at  twelve,  but  a  vlrdict  might 
be  rendered  upon  the  agreement  of  nine  jurors.  The  question  in- 
volved in  this  case  is  whether  it  was  intended  that  this  practice 
should  be  instantly  changed,  and  the  criminal  procedure  embodied  in 
the  Fifth  and  Sixth  Amendments  to  the  Constitution  be  adopted  as  of 
August  12,  1898,  when  the  Hawaiian  flag  was  hauled  down  and  the 
American  flag  hoisted  in  its  place. 

If  the  words  of  the  Newlands  resolution,  adopting  the  municipal 
legislation  of  Hawaii,  not  contrary  to  the  Constitution  of  the  United 
States,  be  literally  applied,  the  petitioner  is  entitled  to  his  discharge, 
since  that  instrument  expressly  requires  Amendment  5,  that  "no 
person  shall  be  held  to  answer  for  a  capital  or  otlierwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury  ;  "  and, 
Amendment  6,  that  ''  in  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been  committed." 
But  there  is  another  question  underlying  this  and  all  other  rules  for 
the  interpretation  of  statutes,  and  that  is.  What  was  the  intention  of 
the  legislative  body  ?  Witliout  going  back  to  the  famous  case  of  the 
drawing  of  blood  in  the  streets  of  Bologna,  the  books  are  full  of 
authorities  to  the  effect  that  the  intention  of  the  lawmaking  power 


i 


HAWAII    V.    MANKICHI.  1247 

will  prevail,  even  against  the  letter  of  the  statute ;  or,  as  tersely- 
expressed  by  Mr.  Justice  Swayne  in  Smythe  v.  Fiske,  23  Wall.  374, 
380  :  "A  thing  may  be  within  the  letter  of  a  statute  and  nofwithin 
its  meaning,  and  within  its  meaning,  though  not  within  its  letter. 
The  intention  of  the  lawmaker  is  the  law."  A  parallel  expression  is 
found  in  the  opinion  of  Mr.  Chief  Justice  Thompson  of  the  Supreme 
Court  of  the  State  of  New  York  (subsequently  Mr.  Justice  Thompson 
of  this  court),  in  People  v.  Utica  Ins.  Co.  15  Johns.  358,  381 :  "  A 
thing  which  is  within  the  intention  of  the  makers  of  a  statute  is  as 
much  within  the  statute  as  if  it  were  within  the  letter  ;  and  a  thing 
whicli  is  within  the  letter  of  the  statute  is  not  within  the  statute, 
unless  it  be  within  the  intention  of  the  makers." 

Without  going  farther,  numerous  illustrations  of  this  maxim  are 
found  in  the  reports  of  our  own  court,  Nowliere  is  the  doctrine  more 
broadly  stated  than  in  United  States  v.  Kirby,  7  Wall.  482,  in  which 
an  act  of  Congress,  providing  for  the  punishment  of  any  person  who 
'^shall  knowingly  and  willfully  obstruct  or  retard  the  passage  of  the 
mail,  or  any  driver  or  carrier,"  was  held  not  to  ai)ply  to  a  state  officer 
who  had  a  warrant  of  arrest  against  a  carrier  for  murder,  the  court 
observing  that  no  officer  of  the  United  States  was  placed  by  his  posi- 
tion above  responsibility  to  the  legal  tribunals  of  the  country,  and  to 
the  ordinary  processes  for  his  arrest  and  detention  when  accused  of 
felony.  "  All  laws,"  said  the  court,  "  should  receive  a  sensible  con- 
struction. General  terms  should  be  so  limited  in  their  application  as 
not  to  lead  to  injustice,  oppression,  or  an  absurd  consequence.  It  will 
always,  therefore,  be  presumed  that  the  legislature  intended  excep- 
tions to  its  language,  which  would  avoid  results  of  this  character. 
The  reason  of  the  law  in  such  cases  should  prevail  over  its  letter." 
A  case  was  cited  from  Plowden,  holding  that  a  statute  which  punished 
a  prisoner  as  a  felon  who  broke  prison  did  not  extend  to  a  prisoner 
who  broke  out  when  the  prison  was  on  fire,  "for  he  is  not  to  be 
hanged  because  he  would  not  stay  to  be  burned."  Similar  language 
to  that  in  Kirby's  case  was  used  in  Carlisle  v.  United  States,  IG  Wall. 
147,  153. 

In  Atkins  v.  Disintegrating  Co.  18  Wall.  272,  it  was  held  that 
a  suit  in  personam  in  admiralty  was  not  a  "civil  suit"  within  the 
eleventh  section  of  the  judiciary  act,  though  clearly  a  civil  suit  in  the 
general  sense  of  that  phrase,  and  as  used  in  other  sections  of  the  same 
act.  See  also  In  re  Louisville  Underwriters,  134  U.  S.  488.  So  in 
Heydenfeldt  v.  Daney  Gold  &c.  Co.  93  U.  S.  634,  638,  it  was  said  by 
Mr.  Justice  Davis :  "  If  a  little  interpretation  of  any  part  of  it  (a 
statute)  would  operate  unjustly,  or  lead  to  absurd  results,  or  be  con- 
trary to  the  evident  meaning  of  the  act  taken  as  a  whole,  it  should  be 
rejected.  There  is  no  better  way  of  discovering  its  true  meaning, 
when  expressions  in  it  are  rendered  ambiguous  by  their  connection 
with  other  clauses,  than  by  considering  the  necessity  for  it,  and  the 
causes  which  induced  its  enactment."     To  the  same  effect  are  the 


1248      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

Church  of  the  Holy  Trinity  v.  United  States,  143  U.  S.  457,  in  which 
many  cases  are  cited  and  reviewed,  and  Laii  Ovf  Bew  v.  United 
States,  144  U.  S.  47,  59.  In  this  latter  case  it  was  held  that  a  statute 
requiring  the  permission  of  the  Chinese  government,  and  the  identi- 
fication of  "  every  Chinese  person  other  than  a  laborer,  who  may  be 
entitled  by  treaty  or  act  of  Congress  to  come  within  the  United 
States,"  did  not  apply  to  "Chinese  merchants  already  domiciled  in 
the  United  States,  who,  having  left  the  country  for  temporary  pur- 
poses, animo  revertendi,  seek  to  reenter  it  on  their  return  to  their 
business  and  their  homes."  Said  the  Chief  Justice  :  "  Nothing  is 
better  settled  than  that  statutes  should  receive  a  sensible  construc- 
tion, such  as  will  effectuate  the  legislative  intention,  and,  if  possible, 
so  as  to  avoid  an  unjust  or  an  absurd  conclusion." 

Two  recent  English  cases  are  instructive  in  this  connection  :  In 
Plumstead  Board  of  Works  v.  Spackmau,  L.  R.  13  Q.  B.  D.  878,  887, 
it  was  said  by  the  Master  of  Rolls,  afterwards,, Lord  Esher :  "If 
there  are  no  means  of  avoiding  such  an  interpretation  of  the  statute  " 
(as  will  amount  to  a  great  hardship),  "  a  judge  must  come  to  the  con- 
clusion that  the  legislature  by  inadvertence  has  committed  an  act  of 
legislative  injustice ;  but,  to  my  mind,  a  judge  ought  to  struggle  with 
all  the  intellect  that  he  has,  and  with  all  the  vigor  of  mind  that  he 
has,  against  such  an  interpretation  of  an  act  of  Parliament  ;  and, 
unless  he  is  forced  to  come  to  a  contrary  conclusion,  he  ought  to 
assume  that  it  is  impossible  that  the  legislature  could  have  so  in- 
tended."'   See  also  Ex  parte  Walton,  L.  R.  17  Ch.  D.  746. 

Is  there  any  room  for  construction  in  this  case,  or,  are  the  words 
of  the  resolution  so  plain  that  construction  is  impossible  ?  There 
are  many  reasons  which  induce  us  to  hold  that  the  act  was  not 
intended  to  interfere  with  the  existing  practice,  when  such  interfer- 
ence would  result  in  imperiling  the  peace  and  good  order  of  the 
islands.  The  main  objects  of  the  resolution  were,  1st,  to  accept  the 
cession  of  the  islands  theretofore  made  by  the  Republic  of  Hawaii, 
and  to  annex  the  same  "  as  a  part  of  the  territory  of  the  United  States, 
and  subject  to  the  sovereign  dominion  thereof;"  2d,  to  abolish  all 
existing  treaties  with  various  nations,  and  to  recognize  only  treaties 
between  the  United  States  and  such  foreign  nations  ;  3d,  to  continue 
the  existing  laws  and  customs  regulations,  so  far  as  they  were  not  in- 
consistent with  the  resolution,  or  contrary  to  the  Constitution,  until 
Congress  should  otherwise  determine.  From  the  terras  of  this  resolu- 
tion it  is  evident  that  it  was  intended  to  be  merely  temporary  and  pro- 
visional; that  no  change  in  the  government  was  contemplated,  and  that, 
until  further  legislation,  the  Republic  of  Hawaii  continued  in  existence. 
Even  its  name  was  not  changed  until  1900,  wlien  the  '•  Territory  of 
Hawaii  "  was  organized.  The  laws  of  the  United  States  were  not 
extended  over  the  islands  until  the  organic  act  was  passed  on  April 
30,  1900,  when,  so  careful  was  Congress  not  to  disturb  the  existing 
condition  of  things  any  further  than  was  necessary,  that  it  was  pro- 


HAWAII   V.    MANKICHI.  1249 

vided,  sec.  5,  that  only  "  the  laws  of  the  United  States  which  are  not 
locally  inapplicable  shall  have  the  same  force  and  effect  within  the 
said  Territory  as  elsewhere  in  the  United  States."  There  was  appar- 
ently some  discretion  left  to  the  courts  in  this  connection.  Indian- 
apolis, &c.  R.  R.  Co.  V.  Horst,  93  U.  S.  291,  299.  The  fact,  already 
mentioned,  that  Congress,  in  this  organic  act,  inserted  a  provision 
for  the  empaneling  of  grand  juries  and  for  the  unanimity  of  verdicts, 
indicates  an  understanding  that  the  previous  practice  had  been  pur- 
sued up  to  that  time,  and  that  a  change  in  the  existing  law  was 
contemplated. 

Of  course,  under  the  Newlands  resolution,  any  new  legislation 
must  conform  to  the  Constitution  of  the  United  States ;  but  how  far 
the  exceptions  to  the  existing  municipal  legislation  were  intended  to 
abolish  existing  laws  must  depend  somewhat  upon  circumstances. 
Where  the  immediate  application  of  the  Constitution  required  no 
new  legislation  to  take  the  place  of  that  which  the  Constitution 
abolished,  it  may  be  well  held  to  have  taken  immediate  effect ;  but 
where  the  application  of  a  procedure  hitherto  well  known  and  acqui- 
esced in  left  nothing  to  take  its  place,  without  new  legislation,  the 
result  might  be  so  disastrous  that  we  might  well  say  that  it  could  not 
have  been  within  the  contemplation  of  Congress.  In  all  probability 
the  contingency  which  has  actually  arisen  occurred  to  no  one  at  the 
time.  If  it  had,  and  its  consequences  were  foreseen,  it  is  incredible 
that  Congress  should  not  have  provided  against  it. 

If  the  negative  words  of  the  resolution,  "  nor  contrary  to  the  Con- 
stitution of  the  United  States,"  be  construed  as  imposing  upon  the 
islands  every  provision  of  a  Constitution  which  must  have  been 
unfamiliar  to  a  large  number  of  their  inhabitants,  and  for  which  no 
previous  preparation  had  been  made,  the  consequences  in  this  par- 
ticular connection  would  be  that  every  criminal  in  the  Hawaiian 
Islands  convicted  of  an  infamous  offense  between  August  12,  1898, 
and  June  14,  1900,  when  the  act  organizing  the  territorial  govern- 
ment took  effect,  must  be  set  at  large ;  and  every  verdict  in  a  civil 
case  rendered  by  less  than  a  unanimous  jury  held  for  naught.  Surely, 
such  a  result  could  not  have  been  within  the  contemplation  of  Con- 
gress. It  is  equally  manifest  that  such  could  not  have  been  the  inten- 
tion of  the  Republic  of  Hawaii  in  surrendering  its  autonomy.  Until 
then  it  was  an  independent  nation,  exercising  all  the  powers  and  pre- 
rogatives of  complete  sovereignty.  It  certainly  could  not  have  antic- 
ipated that,  in  dealing  with  a,nother  independent  nation,  and  yielding 
up  its  sovereignty,  it  had  denuded  itself,  by  a  negative  pregnant,  of 
all  power  of  enforcing  its  criminal  laws  according  to  the  methods 
which  had  been  in  vogue  for  sixty  years,  and  was  adopting  a  new 
procedure  for  which  it  had  had  no  opportunity  of  making  preparation. 
The  legislature  of  the  Republic  had  just  adjourned,  not  to  convene 
again  until  some  time  in  1900,  and  not  actually  convening  until  1901. 
The  resolution  on  its  face  bears  evidence  of  having  been  intended 

79 


1250      ADDITIONAL    CASES   RELATING    TO    ANNEXATION    OF    TERRITORY. 

merely  for  a  temporary  purpose,  and  to  give  time  to  the  Republic  to 
adapt  itself  to  such  form  of  territorial  government  as  should  after- 
wards be  adopted  in  its  organic  act. 

The  language  of  Mr.  Buchanan,  then  Secretary  of  State,  in  holding 
that  the  military  government  established  in  California  did  not  cease 
to  exist  with  the  treaty  of  peace,  but  continued  as  a  government 
de  facto  until  Congress  should  provide  a  territorial  government,  is 
peculiarly  applicable  to  this  case.  "  The  great  law  of  necessity  jus- 
tifies this  conclusion.  The  consent  of  the  people  is  irresistably 
inferred  from  the  fact  that  no  civilized  community  could  possibly 
desire  to  abrogate  an  existing  government,  when  the  alternative  pre- 
sented would  be  to  place  themselves  in  a  state  of  anarchy,  beyond  the 
protection  of  all  laws,  and  reduce  them  to  the  unhappy  necessity  of 
submitting  to  the  dominion  of  the  strongest."     16  How.  184. 

It  is  insisted,  however,  that,  as  the  common  law  of  England  had 
been  adopted  in  Hawaii  by  the  Code  of  1897,  it  was  within  the 
})Ower  of  the  courts  to  summon  a  grand  jury,  and  that  such  action 
might  have  been  taken  and  criminals  tried  upon  indictments  prop- 
erly found,  and  convicted  by  a  unanimous  verdict.  The  suggestion  is 
rather  fanciful  than  real,  since  section  1109  of  the  Code  of  1897,  adopt- 
ing the  common  law  of  England,  contained  a  proviso  that  "no  per- 
son shall  be  subject  to  criminal  proceedings  except  as  provided  by  the 
Hawaiian  laws."  These  laws  provided  expressly,  sec.  616,  Penal  Laws 
of  1897,  as  follows :  "The  necessary  bills  of  indictment  shall  be  duly 
prepared  by  a  legal  prosecuting  officer,  and  be  duly  presented  to  the 
presiding  judge  of  the  court  before  the  arraignment  of  the  accused, 
and  such  judge  shall,  after  examination,  certify  upon  each  bill  of 
indictment  whether  he  finds  the  same  a  true  bill  or  not."  The  ques- 
tion thus  squarely  presented  to  every  judge  in  the  Eepublic  was, 
whether  he  was  bound  to  summon  a  grand  jury  under  the  Newlands 
resolution,  when  no  provision  existed  by  law  for  impaneling  the  same, 
or  their  payment,  and  when,  in  so  doing,  he  was  obliged  to  ignore 
the  plain  statute  of  his  own  country. 

It  is  not  intended  here  to  decide  that  the  words  "  nor  contrary  to 
the  Constitution  of  the  United  States"  are  meaningless.  Clearly, 
they  would  be  operative  upon  any  municipal  legislation  thereafter 
adopted,  and  upon  any  proceedings  thereafter  had,  when  the  appli- 
cation of  the  Constitution  would  not  result  in  the  destruction  of 
existing  provisions  conducive  to  the  peace  and  good  order  of  the 
community.  Therefore  we  should  answer  without  hesitation  in  the 
negative  the  question  put  by  counsel  for  the  petitioner  in  their  brief: 
"  Would  municipal  statutes  of  Hawaii,  allowing  a  conviction  of  trea- 
son on  circumstantial  evidence,  or  on  the  testimony  of  one  witness, 
depriving  a  person  of  liberty  by  the  will  of  the  legislature  and  with- 
out process,  or  confiscating  private  property  for  public  use  without 
compensation,  remain  in  force  after  an  annexation  of  the  territory 
to  the  United  States,  which  was  conditioned  upon  the  extinction  of 


HAWAII    V.    MANKICni.  1251 

all  legislation  contrary  to  the  Constitution  ?  "  We  would  even  go 
farther,  and  say  that  most,  if  not  all,  the  privileges  and  immunities 
contained  in  the  bill  of  rights  of  the  Constitution  were  intended  to 
apply  from  the  moment  of  annexation ;  but  we  place  our  decision  of 
this  case  upon  the  ground  that  the  two  rights  alleged  to  be  violated 
in  this  case  are  not  fundamental  in  their  nature,  but  concern  merely 
a  method  of  procedure  which  sixty  years  of  practice  bad  shown  to 
be  suited  to  the  conditions  of  the  islands,  and  well  calculated  to  con- 
serve the  rights  of  their  citizens  to  their  lives,  their  property,  and 
their  well  being. 

Inasmuch  as  we  are  of  opinion  that  the  status  of  the  islands  and 
the  powers  of  their  provisional  government  were  measured  by  the 
Newlands  resolution,  and  the  case  has  been  argued  upon  that  theory, 
we  have  not  deemed-  it  necessary  to  consider  what  would  have  been 
its  position  had  the  important  words  "nor  contrary  to  the  Constitu- 
tion of  the  United  States  "  been  omitted,  or  to  reconsider  the  ques- 
tions which  arose  in  the  Insular  Tariff"  cases  regarding  the  power 
of  Congress  to  annex  territory  without,  at  the  same  time,  extending 
the  Constitution  over  it.  Of  course,  for  the  reasons  already  stated, 
the  questions  involved  in  this  case  could  arise  only  from  such  as  oc- 
curred between  the  taking  effect  of  the  joint  resolution  of  July  7, 
1898,  and  the  act  of  April  30,  1900,  establishing  the  territorial 
government. 

The  decree  of  the  District  Court  for  the  territory  of  Haumii  must  be 
reversed,  and  the  case  remanded  to  that  courts  with  instruction  to  dis~ 
miss  the  petition.^ 

1  Mr.  Justice  White,  with  whom  concurred  Mr.  Justice  McKenna,  a^eed  to 
the  opinion  of  the  majority  on  the  ground  "  that  as  a  consequence  of  the  relation 
which  the  Hawaiian  Islands  occupied  towards  the  United  States,  growing  out  of  the 
resolution  of  annexation,  the  provisions  of  the  Fifth  and  Sixth  Amendments  of  the 
Constitution  concerning  grand  and  petit  juries  were  not  applicable  to  that  Territory, 
because,  whilst  the  effect  of  the  resolution  of  annexation  was  to  acquire  the  islands, 
and  subject  them  to  the  sovereignty  of  the  United  States,  neither  the  terms  of  the 
resolution  nor  the  situation  which  arose  from  it  served  to  incorporate  the  Hawaiian 
Islands  into  tiie  United  States  and  make  tiiem  an  integral  part  thereof.  In  other 
words,  in  my  opinion,  the  case  is  controlled  by  the  decision  in  Uownes  v.  Bidwell,  182 
U.  S.  244." 

Mr.  Chief  Justice  Fuller  with  whom  concurred  Mr.  Justice  Harlav,  Mr. 
Justice  Brewer  and  Mr.  Justice  Peckham,  dissented,  stating  his  conclusion  as 
follows : 

"  Assuming,  solely  for  the  sake  of  argument,  that  the  mere  fact  of  annexation  might 
not  in  itself  have  at  once  extended  to  tlie  inhabitants  of  Hawaii  all  the  rights,  privi- 
leges, and  immunities  guaranteed  by  the  Constitution,  and  that  Congress  had  the 
power  to  impose  limitations  in  that  regard,  I  think  not  only  that  Congress  did  not  do  so 
in  the  particulars  in  question,  but  that,  in  recnacting  existing  legislation.  Congress, 
by  the  terms  of  the  resolution,  intentionally  invalidated  so  much  thereof  as  in  the.se 
particulars  was  inconsistent  with  the  Constitution.  The  presumptions  are  all  opposed 
to  any  capitulation  in  the  matter  of  common-law  institutions." 

Mr.  Justice   Harlan  further  dissented,  stating  his  conclusions  as  follows: 

"  I  am  of  opinion :  1.  That  when  the  annexation  of  Hawaii  was  completed,  the 
Constitution  —  without  any  declaration  to  that  effect  by  Congres;?,  and  without  any 


1252      ADDITIONAL   CASES   RELATING  TO   ANNEXATION    OF   TERRITORY. 


DOER   V.   UNITED   STATES. 
195  U.  S.  138 ;  24  Sup.  Ct.  Rep.  808.    1904. 

[In  error  to  the  Supreme  Court  of  the  Philippine  Islands  to  review 
a  judgment  which  affirmed  a  conviction  of  libel  in  the  court  of  first 
instance  in  the  City  of  Manilla.] 

Mr.  Justice  Day  delivered  the  opinion  of  the  court : 

The  case  presents  the  question  whether,  in  the  absence  of  a  statute 
of  Congress  expressly  conferring  the  right,  trial  by  jury  is  a  necessary 
incident  of  judicial  procedure  in  the  Philippine  Islands,  where  de- 
mand for  trial  by  that  method  has  been  made  by  the  accused,  and 
denied  by  the  courts  established  in  the  islands. 

The  recent  consideration  by  this  court,  and  the  full  discussion  had 
in  the  opinions  delivered  in  the  so-called  "  Insular  cases,"  renders 
superfluous  any  attempt  to  reconsider  the  constitutional  relation  of 
the  powers  of  the  government  to  territory  acquired  by  a  treaty  cession 
to  the  United  States.  De  Lima  v.  Bidwell,  182  U.  S.  1 ;  Downes  v. 
Bidwell,  182  U.  S.  244  [1119].  The  opinions  rendered  in  those  cases 
cover  every  phase  of  the  question,  either  legal  or  historical,  and  it 
would  be  useless  to  undertake  to  add  to  the  elaborate  consideration  of 
the  subject  had  therein.  In  the  still  more  recent  case  of  Hawaii  v. 
Mankichi,  190  U.  S.  197  [1244],  the  right  to  a  jury  trial  in  outlying 
territory  of  the  United  States  was  under  consideration.  For  the 
present  purpose  it  is  only  necessary  to  state  certain  conclusions  which 
are  deemed  to  be  established  by  prior  adjudications,  and  are  decisive 
of  this  case. 

It  may  be  regarded  as  settled  that  the  Constitution  of  the  United 
States  is  the  only  source  of  power  authorizing  action  by  any  branch 
of  the  Federal  government.  "  The  government  of  the  United  States 
was  born  of  the  Constitution,  and  all  powers  which  it  enjoys  or  may 
exercise  must  be  either  derived  expressly  or  by  implication  from  that 
instrument."  Downes  v.  Bidwell,  182  U.  S.  244,  288  [1119],  and 
cases  cited.  It  is  equally  well  settled  that  the  United  States  may 
acquire  territory  in  the  exercise  of  the  treaty-making  power  by  direct 
cession  as  the  result  of  war,  and  in  making  effectual  the  terms  of 
peace ;  and  for  that  purpose  has  the  powers  of  other  sovereign  na- 
tions.    This   principle  has   been  recognized  by  this  court  from  its 

power  of  Congress  to  prevent  it  —  became  the  supreme  law  for  that  country,  and, 
therefore,  it  forbade  the  trial  and  conviction  of  the  accused  for  murder  otherwiee 
than  upon  a  presentment  or  indictment  of  a  grand  jury,  and  by  the  unanimous  ver- 
dict of  a  petit  jury.  2.  That  if  the  legality  of  such  trial  and  conviction  is  to  be 
tested  alone  by  the  Joint  Resolution  of  1898.  then  the  law  is  for  the  accused,  because 
Congress,  by  that  Resolution,  abrogated  or  forbade  the  enforcement  of  any  municipal 
law  of  Hawaii  so  far  as  it  authorized  a  trial  for  an  infamous  crime  otherwise  than  in 
the  mode  prescribed  by  the  Constitution  of  the  United  States;  and  that  any  other 
construction  of  the  Resolution  is  forbidden  by  its  clear,  unambiguous  words,  and  is  to 
make,  not  to  interpret,  the  law." 


DORR   V.    UNITED    STATES.  1253 

earliest  decisions.  The  convention  which  framed  the  Constitution  of 
the  United  States,  in  view  of  the  territory  already  possessed  and  the 
possibility  of  acquiring  more,  inserted  in  that  instrument,  in  article 
IV.,  section  3,  a  grant  of  express  power  to  Congress  "  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States." 

As  early  as  the  February  term,  1810,  of  this  court,  in  the  case  of 
Sere  and  Laralde  v.  Pitot  and  others,  6  Cranch,  332,  Chief  Justice 
Marshall,  delivering  the  opinion  of  the  court,   said  : 

"  The  power  of  governing  and  legislating  for  a  territory  is  the  in- 
evitable consequence  of  the  right  to  acquire  and  to  hold  territory. 
Could  this  position  be  contested,  the  Constitution  of  the  United  States 
declares  that  '  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to  the  United  States.'  Accordingly  we  find  Congress 
possessing  and  exercising  the  absolute  and  undisputed  power  of  gov- 
erning and  legislating  for  the  Territory  of  Orleans.  Congress  has 
given  them  a  legislative,  an  executive,  and  a  judiciary,  with  such 
powers  as  it  has  been  their  will  to  assign  to  those  departments 
respectively." 

And  later,  the  same  eminent  judge,  delivering  the  opinion  of  the 
court  in  the  leading  case  upon  the  subject,  American  Insurance  Co.  v. 
Canter,  1  Pet.  511,  542  [827],  says : 

"The  Constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties  ;  conse- 
quently that  government  possesses  the  power  of  acquiring  territory, 
either  by  conquest  or  by  treaty.  The  usage  of  the  word  is,  if  a  na- 
tion be  not  entirely  subdued,  to  consider  the  holding  of  conquered 
territory  as  a  mere  military  occupation,  until  its  fate  shall  be  deter- 
mined at  the  treaty  of  peace.  If  it  be  ceded  by  the  treaty,  the 
acquisition  is  confirmed,  and  the  ceded  Territory  becomes  a  part  of 
the  nation  to  which  it  is  annexed,  either  on  the  terras  stipulated  in 
the  treaty  of  cession,  or  on  such  as  its  new  master  shall  impose.  On 
such  transfer  of  territory  it  has  never  been  held  that  the  relations  of 
the  inhabitants  with  each  other  undergo  any  change.  Their  relations 
with  their  former  sovereign  are  dissolved,  and  new  relations  are  cre- 
ated between  them  and  the  government  which  has  acquired  their 
territory.  The  same  act  which  transfers  their  country  transfers  the 
allegiance  of  those  who  remain  in  it ;  and  the  law,  which  may  be 
denominated  political,  is  necessarily  changed,  although  that  which 
regulates  the  intercourse  and  general  conduct  of  individuals  remains 
in  force  until  altered  by  the  newly-created  power  of  the  state. 

<'0n  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
States.  The  sixth  article  ot  the  treaty  of  cession  contains  the  follow- 
ing provision  :  'The  inhabitants  of  the  territories  which  His  Catholic 
Majesty  cedes  to  the  United  States  by  this  treaty  shall  be  incorporated 
in  the  Union  of  the  United  States  as  soon  as  may  be  consistent  with 


1254      ADDITIONAL   CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

the  principles  of  the  Federal  Constitution,  and  admitted  to  the  enjoy- 
ment of  the  privileges,  rights,  and  immunities  of  the  citizens  of  the 
United  States.' 

"  This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants  of 
Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States.  It  is  unnecessary  to  inquire 
whether  this  is  not  their  condition,  independent  of  stipulation.  They 
do  not,  however,  participate  in  political  power ;  they  do  not  share  in 
the  government  till  Florida  shall  become  a  State.  In  the  meantime 
Florida  continues  to  be  a  territory  of  the  United  States,  governed  by 
virtue  of  that  clause  in  the  Constitution  which  empowers  Congress 
'to  make  all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United.  States.'  " 

While  these  cases,  and  others  which  are  cited  in  the  late  case  of 
Downes  v.  Bidwell,  svpra,  sustain  the  right  of  Congress  to  make  laws 
for  the  government  of  Territories,  without  being  subject  to  all  the 
restrictions  which  are  imposed  upon  that  body  when  passing  laws  for 
the  United  States,  considered  as  a  political  body  of  States  in  union, 
the  exercise  of  the  power  expressly  granted  to  govern  the  terri- 
tories is  not  without  limitations.  Speaking  of  this  power,  Mr. 
Justice  Curtis,  in  the  case  of  Scott  v.  Sandford,  19  How.  393,  614, 
said : 

*'  If,  then,  this  clause  does  contain  a  power  to  legislate  respecting 
the  territory,  what  are  the  limits  of  that  power  ? 

"To  this  I  answer  that,  in  common  with  all  the  other  legislative 
powers  of  Congress,  it  finds  limits  in  the  express  prohibitions  on  Con- 
gress not  to  do  certain  things;  that,  in  the  exercise  of  the  legislative 
power.  Congress  cannot  pass  an  ex  j)ost facto  law  or  bill  of  attainder; 
and  so  in  respect  to  each  of  the  other  prohibitions  contained  in  the 
Constitution." 

In  every  case  where  Congress  undertakes  to  legislate  in  the  exer- 
cise of  the  power  conferred  by  the  Constitution,  the  question  may 
arise  as  to  how  far  the  exercise  of  the  power  is  limited  by  the  "  pro- 
hibitions '■'  of  that  instrument.  The  limitations  which  are  to  be  ap- 
plied in  any  given  case  involving  territorial  government  must  depend 
upon  the  relation  of  the  particular  territory  to  the  United  States, 
concerning  which  Congress  is  exercising  the  power  conferred  by  the 
Constitution.  That  the  United  States  may  have  territory  which  is 
not  incorporated  into  the  United  States  as  a  body  politic,  we  think 
was  recognized  by  the  framers  of  the  Constitution  in  enacting  the 
article  already  considered,  giving  power  over  the  territories,  and  is 
sanctioned  by  the  opinions  of  the  justices  concurring  in  the  judgment 
in  Downes  v.  Bidwell,  supra. 

Until  Congress  shall  see  fit  to  incorporate  territory  ceded  by 
treaty  into  the  United  States,  we  regard  it  as  settled  by  that  decision 
that  the  territory  is  to  be  governed  under  the  power  existing  in  Con- 
gress to  make  laws  for  such  territories,  and  subject  to  such  constitu- 


DORR   V.    UNITED    STATES.  1255 

tional  restrictions  upon  the  powers  of  that  body  as  are  applicable  to 
the  situation. 

For  this  case  the  practical  question  is,  must  Congress,  in  establish- 
ing a  system  for  trial  of  crimes  and  offenses  committed  in  the  Philip- 
pine Islands,  carry  to  their  people  by  proper  affirmative  legislation  a 
system  of  trial  by  jury  ? 

If  the  treaty-making  power  could  incorporate  territory  into  the 
United  States  without  congressional  action,  it  is  apparent  that  the 
treaty  with  Spain,  ceding  the  Philippines  to  the  United  States 
carefully  refrained  from  so  doing ;  for  it  is  expressly  provided 
that  (Article  IX) :  "  The  civil  rights  and  political  status  of  the 
native  inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  the  Congress."  In  this  language  it  is 
clear  that  it  was  the  intention  of  the  framers  of  the  treaty  to  reserve 
to  Congress,  so  far  as  it  could  be  constitutionally  done,  a  free  hand  in 
dealing  with  these  newly-acquired  possessions. 

The  legislation  upon  the  subject  shows  that  not  only  has  Congress 
hitherto  refrained  from  incorporating  the  Philippines  into  the  United 
States,  but  in  the  act  of  1902,  providing  for  temporary  civil  govern- 
ment, 32  Stat.  691,  there  is  express  provision  that  section  eighteen  hun- 
dred and  ninety-one  of  the  Revised  Statutes  of  1878  shall  not  apply 
to  the  Philippine  Islands.  This  is  the  section  giving  force  and  eifect 
to  the  Constitution  and  laws  of  the  United  States,  not  locally  in- 
applicable, within  all  the  organized  territories,  and  every  territory 
thereafter  organized,  as  elsewhere  within  the  United  States. 

The  requirements  of  the  Constitution  as  to  a  jury  are  found  in 
article  III,  section  2 : 

"  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury  ;  and  such  trial  shall  be  held  in  the  States  where  the  said 
crimes  shall  have  been  committed  ;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed." 

And  in  article  six  of  the  amendments  to  the  Constitution : 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury,  of  the  State  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him  ;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for 
his  defence." 

It  was  said  in  the  Mankichi  case,  190  U.  S.  197  [1244],  that  when 
the  territory  had  not  been  incorporated  into  the  United  States  these 
requirements  were  not  limitations  upon  the  power  of  Congress  in  pro- 
viding a  government  for  territory  in  execution  of  the  powers  con- 
ferred upon  Congress.  Opinion  of  Mr.  Justice  White,  p.  220,  citing 
Hurtado  v.  California,  110  U.  S.  516  [905];  In  re  Ross,  140  U.  S. 


1256     ADDITIONAL   CASES   RELATING   TO    ANNEXATION   OF   TERRITORY. 

453,  473;  Bolln  v.  Nebraska,  176  U.  S.  83,  and  cases  cited  on  p.  86; 
Maxwell  v.  Dow,  176  U.  S.  581,  584  [  19  ];  Downes  v.  Bidwell,  182 
U.  S.  244  [1119]. 

In  the  same  case  Mr.  Justice  Brown,  in  the  course  of  his  opinion, 
said  : 

"We  would  even  go  farther,  and  say  that  most,  if  not  all,  the 
privileges  and  immunities  contained  in  the  bill  of  rights  of  the  Con- 
stitution were  intended  to  apply  from  the  moment  of  annexation  ; 
but  we  place  our  decision  of  this  ease  upon  the  ground  that  the  two 
rights  alleged  to  be  violated  in  this  case  [right  to  trial  by  jury  and 
presentment  by  grand  jury]  are  not  fundamental  in  their  nature, 
but  concern  merely  a  method  of  procedure  which  sixty  years  of  prac- 
tice had  shown  to  be  suited  to  the  conditions  of  the  islands,  and  well 
calculated  to  conserve  the  rights  of  their  citizens  to  their  lives,  their 
property,  and  their  well  being." 

As  we  have  had  occasion  to  see  in  the  case  of  Kepner  v.  United 
States,  195  U.  S.  100,  the  President,  in  his  instructions  to  the  Philip- 
pine Commission,  while  impressing  the  necessity  of  carrying  into  the 
new  government  the  guaranties  of  the  Bill  of  Eights  securing  those 
safe-guards  to  life  and  liberty  which  are  deemed  essential  to  our 
government,  was  careful  to  reserve  the  right  to  trial  by  jury,  which 
was  doubtless  due  to  the  fact  that  the  civilized  portion  of  the  islands 
had  a  system  of  jurisprudence  founded  upon  the  civil  law,  and  the 
uncivilized  parts  of  the  archipelago  were  wholly  unfitted  to  exer- 
cise the  right  of  trial  by  jury.  The  Spanish  system,  in  force  in  the 
Philippines,  gave  the  right  to  the  accused  to  be  tried  before  judges, 
who  acted  in  effect  as  a  court  of  inquiry,  and  whose  judgments  were 
not  final  until  passed  in  review  before  the  audiencia,  or  Supreme 
Court,  with  right  of  final  review,  and  power  to  grant  a  new  trial  for 
errors  of  law,  in  the  Supreme  Court  at  Madrid.  To  this  system  the 
Philippine  Commission,  in  executing  the  power  conferred  by  the 
orders  of  the  President,  and  sanctioned  by  act  of  Congress  (act  of 
July  1,  1902,  32  Stat.  691),  has  added  a  guaranty  of  the  right  of  the 
accused  to  be  heard  by  himself  and  counsel,  to  demand  the  nature 
and  cause  of  the  accusation  against  him,  to  have  a  speedy  and  public 
trial,  to  meet  the  witnesses  against  him  face  to  face,  and  to  have  com- 
pulsory process  to  compel  the  attendance  of  witnesses  in  his  behalf. 
And,  further,  that  no  person  shall  be  held  to  answer  for  a  criminal 
offense  without  due  process  of  law,  nor  be  put  twice  in  jeopardy  of 
punishment  for  the  same  offense,  nor  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself.  As  appears  in  the  Kepner  case, 
supra,  the  accused  is  given  the  right  of  appeal  from  the  judgment 
of  the  court  of  first  instance  to  the  Supreme  Court,  and,  in  capital 
cases,  the  case  goes  to  the  latter  court  without  appeal.  It  cannot  be 
successfully  maintained  that  this  system  does  not  give  an  adequate 
and  efficient  method  of  protecting  the  rights  of  the  accused  as  well 
as  executing  the  criminal  law  by  judicial  proceedings  which  give  full 


DORR   V.    UNITED   STATES.  1257 

opportunity  to  be  heard  by  competent  tribunals  before  judgment  can 
be  pronounced.  Of  course,  it  is  a  complete  answer  to  this  suggestion 
to  say,  if  such  be  the  fact,  that  the  constitutional  requirements  as  to 
a  jury  trial,  either  of  their  own  force  or  as  limitations  upon  the  power 
of  Congress  in  setting  up  a  government,  "must  control  in  all  the  ter- 
ritory, whether  incorporated  or  not,  of  the  United  States.  But  is 
this  a  reasonable  interpret?.tion  of  the  power  conferred  upon  Con- 
gress to  make  rules  and  regulations  for  the  territories  ? 

The  cases  cited  have  firmly  established  the  power  of  the  United 
States,  like  other  sovereign  nations,  to  acquire,  by  the  methods  known 
to  civilized  people,  additional  territory.  The  framers  of  the  Consti- 
tution, recognizing  the  possibility  of  future  extension  by  acquiring 
territory  outside  the  States,  did  not  leave  to  implication  alone  the 
power  to  govern  and  control  territory  owned  or  to  be  acquired,  but, 
in  the  article  quoted,  expressly  conferred  the  needful  powers  to  make 
regulations.  Regulations  in  this  sense  must  mean  laws,  for,  as  well 
as  States,  territories  must  be  governed  by  laws.  The  limitations  of 
this  power  were  suggested  by  Mr.  Justice  Curtis  in  the  Dred  Scott 
case,  above  quoted,  and  Mr.  Justice  Bradley,  in  the  Mormon  Church 
case,^136  U.  S.  1  [835],  said  : 

"  Doubtless  Congress,  in  legislating  for  the  Territories,  would  be 
subject  to  those  fundamental  limitations  in  favor  of  personal  rights 
which  are  formulated  in  the  Constitution  and  its  amendments  ;  but 
these  limitations  would  exist  rather  by  inference  and  the  general 
spirit  of  the  Constitution  from  which  Congress  derives  all  its  powers, 
than  by  any  express  and  direct  application  of  its  provisions." 

This  language  was  quoted  with  approbation  by  Mr.  Justice  Brown ' 
in  Downes  v.  Bid  well,  supra,  and  in  the  same  case  Mr.  Justice 
White  said :  "  Whilst,  therefore,  there  is  no  express  or  implied 
limitation  on  Congress  in  exercising  its  power  to  create  local  govern- 
ments for  any  and  all  of  the  Territories,  by  which  that  body  is 
restrained  from  the  widest  latitude  of  discretion,  it  does  not  follow- 
that  there  may  not  be  inherent,  although  unexpressed,  principles 
which  are  the  basis  of  all  free  government,  which  cannot  be  with  im- 
punity transcended.  But  this  does  not  suggest  that  every  express 
limitation  of  the  Constitution  which  is  applicable  has  not  force,  but 
only  signifies  that  even  in  cases  where  there  is  no  direct  command  of 
the  Constitution  which  applies,  there  may  nevertheless  be  restric- 
tions of  so  fundamental  a  nature  tliat  they  cannot  be  transgressed, 
although  not  expressed  in  so  many  words  in  the  Constitution." 

In  treating  of  article  4,  section  3,  Judge  Cooley,  in  his  work  on 
Constitutional  Law,  says  : 

"  The  peculiar  wording  of  the  provision  [section  3,  article  4]  has 
led  some  persons  to  suppose  that  it  was  intended  Congress  should 
exercise,  in  respect  to  the  territory,  the  rights  only  of  a  proprietor 
of  property,  and  that  the  people  of  the  territories  were  to  be  left  at 
liberty  to  institute  governments  for  themselves.     It  is  no  doubt  most 


1258      ADDITIONAL    CASES   RELATING   TO   ANNEXATION   OF   TERRITORY. 

consistent  with  the  general  theory  of  republican  institutions  that  the 
people  everywhere  should  be  allowed  self-government;  but  it  has 
never  been  deemed  a  matter  of  right  that  a  local  community  should 
be  suffered  to  lay  the  foundations  of  institutions,  and  erect  a  struc- 
ture of  government  thereon,  without  the  guidance  and  restraint  of  a 
superior  authority.  Even  in  the  older  States,  where  society  is  most 
homogeneous  and  has  fewest  of  the  elements  of  disquiet  and  disorder, 
the  State  reserves  to  itself  the  right  to  shape  municipal  institutions ; 
and  towns  and  cities  are  only  formed  under  its  directions,  and  accord- 
ing to  the  rules  and  within  the  limits  the  State  prescribes.  With 
still  less  reason  could  the  settlers  in  new  territories  be  suffered  to 
exercise  sovereign  powers.  The  practice  of  the  Government,  origi- 
nating before  the  adoption  of  the  Constitution,  has  been  for  Congress 
to  establish  governments  for  the  territories  ;  and  whether  the  juris- 
diction over  the  district  has  been  acquired  by  grant  from  the  States, 
or  by  treaty  with  a  foreign  power,  Congress  has  unquestionably  full 
power  to  govern  it;  and  the  people,  except  as  Congress  shall  provide 
for,  are  not  of  right  entitled  to  participate  in  political  authority  until 
the  Territory  becomes  a  State.  Meantime  they  are  in  a  condition  of 
temporary  pupilage  and  dependence;  and  while  Congress  will  be  ex- 
pected to  recognize  the  principle  of  self-government  to  such  extent 
as  may  seem  wise,  its  discretion  alone  can  constitute  the  measure  by 
which  the  participation  of  the  people  can  be  determined."  Cooley, 
Principles  of  Constitutional  Law,  164. 

If  the  right  to  trial  by  jury  were  a  fundamental  right  which  goes 
wherever  the  jurisdiction  of  the  United  States  extends,  or  if  Con- 
gress, in  framing  laws  for  outlying  territory  belonging  to  the  United 
States,  was  obliged  to  establish  that  system  by  affirmative  legislation, 
it  would  follow  that,  no  matter  what  the  needs  or  capacities  of  the 
people,  trial  by  jury,  and  in  no  other  way,  must  be  forthwith  estab- 
lished, although  the  result  may  be  to  work  injustice  and  provoke  dis- 
turbance rather  than  to  aid  the  orderly  administration  of  justice.  If 
the  United  States,  impelled  by  its  duty  or  advantage,  shall  acquire 
territory  peopled  by  savages,  and  of  which  it  may  dispose  or  not  hold 
for  ultimate  admission  to  Statehood,  if  this  doctrine  is  sound,  it  must 
establish  there  the  trial  by  jury.  To  state  such  a  proposition  demon- 
strates the  impossibility  of  carrying  it  into  practice.  Again,  if  the 
United  States  shall  acquire  by  treaty  the  cession  of  territory  having 
an  established  system  of  jurisprudence,  where  jury  trials  are  unknown, 
but  a  method  of  fair  and  orderly  trial  prevails  under  an  acceptable 
and  long-established  code,  the  preference  of  the  people  must  be  dis- 
regarded, their  established  customs  ignored,  and  they  themselves 
coerced  to  accept,  in  advance  of  incorporation  into  the  United  States, 
a  system  of  trial  unknown  to  them  and  unsuited  to  their  needs.  We 
do  not  think  it  was  intended,  in  giving  power  to  Congress  to  make  reg- 
ulations for  the  territories,  to  hamper  its  exercise  with  this  condition. 

We  conclude  that  the  power  to  govern  territory,  implied  in  the 


DORR   V.    UNITED   STATES.  1259 

right  to  acquire  it,  and  given  to  Congress  in  the  Constitution  in 
Article  IV,  §  3,  to  whatever  other  limitations  it  may  be  subject,  the 
extent  of  which  must  be  decided  as  questions  arise,  does  not  require 
that  body  to  enact  for  ceded  territory  not  made  a  part  of  the  United 
States  b}'  Congressional  action,  a  system  of  laws  which  shall  include 
the  right  of  trial  by  jur}-,  and  that  the  Constitution  does  not,  without 
legislation,  and  of  its  own  force,  carry  such  right  to  terrritory  so 
situated. 

[Other  assignments  of  error  relating  to  the  action  of  the  lower  court 
in  sustaining  the  conviction  are  considered  and  as  no  error  is  found  to 
have  been  committed,  the  judgment  is  affirmed.]^ 

1  Mr.  Justice  Peckham,  with  whom  agree  the  Chief  Justice  and  Mr.  Justice 
Brew'kr,  specially  concurrred  ou  the  ground  that  the  case  is  ruled  hy  Hawaii  v. 
Maiikichi,  190  U.  S.  197,  supra,  p.  1244,  holding  that  a  jury  trial  is  not  a  constitutional 
necessity  in  Hawaii,  which  conclusion  is  applicable  also  to  the  Philippine  Islands ; 
but  he  does  not  assent  to  the  view  that  Downes  v.  Bidwell,  182  U.  S.  244  [1119],  is 
to  be  regarded  as  authority  for  such  conclusion.  Mu.  Justice  Harlan  dissented  on 
grounds  stated  by  him  in  his  dissent  in  the  case  of  Hawaii  v.  Mankichi,  supra,  p.  1244. 

In  the  case  of  Rassmussen  r.  United  States,  197  U.  S.  516,  25  Snp.  Ct.  Rep.  514 
(1905),  it  was  held  that  under  the  treaty  annexing  Alaska  the  provisions  of  the  Sixth 
Amendment  of  the  Constitution  of  the  United  States,  requiring  a  jurv  trial  in 
criminal  prosecutions,  render  invalid  the  provisions  of  an  act  of  Congress  for 
trials  of  misdemeanors  in  that  Territory  by  a  jury  of  six. 


APPENDIX   C. 

ADDITIONAL    CASES   AS   TO   DUE    PROCESS    OF   LAW,    EQUAL 
PROTECTION  OF   THE  LAWS,   AND  THE  POLICE  POWER. 


LOCKNER  V.   NEW  YORK. 

198  U.  S.  45;  25  Sup.  Ct.  Rep.  539.    1905. 

This  is  a  writ  of  error  to  the  County  Court  of  Oneida  County,  in  the 
State  of  New  York  (to  which  court  the  record  had  been  remitted), 
to  review  the  judgment  of  the  Court  of  Appeals  of  that  State,  affirming 
the  judgment  of  the  Supreme  Court,  which  itself  affirmed  the  judg- 
ment of  the  County  Court,  convicting  the  defendant  of  a  misdemeanor 
on  an  indictment  under  a  statute  of  that  State,  known,  by  its  short 
title,  as  tlie  labor  law.  .  .  .  The  plaintiff  in  error  demurred  to  the 
indictment  on  several  grounds,  one  of  which  was  that  the  facts  stated 
did  not  constitute  a  crime.  The  demurrer  was  overruled,  and,  the 
plaintiff  in  error  having  refused  to  plead  further,  a  plea  of  not  guilty 
was  entered  by  order  of  the  court  and  the  trial  commenced,  and  he 
was  convicted  of  misdemeanor,  second  offense,  as  indicted,  and  sen- 
tenced to  pay  a  fine  $50,  and  to  stand  committed  until  paid,  not  to 
exceed  fifty  days  in  the  Oneida  County  jail. 

[The  opinion  of  the  appellate  division  of  the  Supreme  Court  of 
New  York  is  reported  in  73  App.  Div.  120,  and  that  of  the  Court  of 
Appeals  of  that  State  in  177  N.  Y.  175.] 

Mb.  Justice  Peckham,  after  making  the  foregoing  statement  of 
the  facts,  delivered  the  opinion  of  the  court. 

The  indictment,  it  will  be  seen,  charges  that  the  plaintiff  in  error 
violated  the  one  hundred  and  tenth  section  of  article  8,  chapter  415,  of 
the  Laws  of  1897,  known  as  the  labor  law  of  the  State  of  New  York,  in 
that  he  wrongfully  and  unlawfully  required  and  permitted  an  employee 
working  for  him  to  work  more  than  sixty  hours  in  one  week.  There 
is  nothing  in  any  of  the  opinions  delivered  in  this  case,  either  in  the 
Supreme  Court  or  the  Court  of  Appeals  of  the  State,  which  construes 
the  section,  in  using  the  word  "  required,"  as  referring  to  any  physi- 
cal force  being  used  to  obtain  the  labor  of  an  employee.  It  is 
assumed  that  the  word  means  nothing  more  than  the  requirement 
arising  from  voluntary  contract  for  such  labor  in  excess  of  the  num- 
ber of  hours  specified  in  the  statute.  There  is  no  pretense  in  any  of 
the  opinions  that  the  statute  was  intended  to  meet  a  case  of  involun- 
tary labor  in  any  form.     All  the  opinions  assume  that  there  is  no 


LOCKNER   V.   NEW   YORK.  1261 

real  distinction,  so  far  as  this  question  is  concerned,  between  the 
words  "required"  and  "permitted."  The  mandate  of  the  statute, 
that  "no  employee  shall  be  required  or  permitted  to  work,"  is  the 
substantial  equivalent  of  an  enactment  that  "  no  employee  shall  con- 
tract or  agree  to  work,"  more  than  ten  hours  per  day;  and,  as  there 
is  no  provision  for  special  emergencies,  the  statute  is  mandatory  in 
all  cases.  It  is  not  an  act  merely  fixing  the  number  of  hours  which 
shall  constitute  a  legal  day's  work,  but  an  absolute  prohibition  upon 
the  employer  permitting,  under  any  circumstances,  more  tlian  ten 
hours'  work  to  be  done  in  his  establishment.  The  employee  may 
desire  to  earn  the  extra  money  which  would  arise  from  his  working 
more  than  the  prescribed  time,  but  this  statute  forbids  the  employer 
from  permitting  the  employee  to  earn  it. 

The  statute  necessarily  interferes  with  the  right  of  contract  between 
the  employer  and  employees,  concerning  the  number  of  hours  in 
which  the  latter  may  labor  in  the  bakery  of  the  employer.  The  gen- 
eral right  to  make  a  contract  in  relation  to  his  business  is  part  of  the 
liberty  of  the  individual  protected  by  the  Fourteenth  Amendment  of 
the  Federal  Constitution.  Allgeyer  v.  Louisiana,  165  U.  S.  578 
[927].  Under  that  provision  no  State  can  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law.  The  right  to 
purchase  or  to  sell  labor  is  part  of  the  liberty  protected  by  this 
amendment,  unless  there  are  circumstances  which  exclude  the  right. 
There  are,  however,  certain  powers,  existing  in  the  sovereignty  of 
each  State  in  the  Union,  somewhat  vaguely  termed  police  powers,  the 
exact  description  and  limitation  of  which  have  not  been  attempted  by 
the  courts.  Those  powers,  broadly  stated,  and  without,  at  present, 
any  attempt  at  a  more  specific  limitation,  relate  to  the  safet}',  health, 
morals,  and  general  welfare  of  the  public.  Both  property  and  liberty 
are  held  on  such  reasonable  conditions  as  may  be  imposed  by  the 
governing  power  of  the  State  in  the  exercise  of  those  powers,  and 
with  such  conditions  the  Fourteenth  Amendment  was  not  designed  to 
interfere.     Mugler  v.  Kansas,  123  U.  S.  623  [938] ;  Iri  re  Kemmler, 

136  U.  S.  436 ;  Crowley  v.  Christensen,  137  U.  S.  86 ;  In  re  Converse, 

137  U.  S.  624. 

The  State,  therefore,  has  power  to  prevent  the  individual  from 
making  certain  kinds  of  contracts,  and  in  regard  to  them  the  Federal 
Constitution  offers  no  protection.  If  the  contract  be  one  which  the 
State,  in  the  legitimate  exercise  of  its  police  power,  has  the  right  to 
prohibit,  it  is  not  prevented  from  prohibiting  it  by  the  Fourteenth 
Amendment.  Contracts  in  violation  of  a  statute,  either  of  the  Fed- 
eral or  state  government,  or  a  contract  to  let  one's  property  for  im- 
moral purposes,  or  to  do  any  other  unlawful  act,  could  obtain  no 
protection  from  the  Federal  Constitution,  as  coming  under  the  liberty 
of  person  or  of  free  contract.  Therefore,  when  the  State,  by  its 
legislature,  in  the  assumed  exercise  of  its  police  powers,  has  passed 
an  act  which  seriously  limits  the  right  to  labor  or  the  right  of  con- 


1262  ADDITIONAL    CASES    AS    TO    DUE    PROCESS    OP   LAW. 

tract  in  regard  to  their  means  of  livelihood  between  persons  who  are 
sui  juris  (both  emplo3^er  and  employee),  it  becomes  of  great  impor- 
tance to  determine  which  shall  prevail  —  the  right  of  the  individual 
to  labor  for  such  time  as  he  may  choose,  or  the  right  of  the  State  to 
prevent  the  individual  from  laboring,  or  from  entering  into  any  con- 
tract to  labor,  beyond  a  certain  time  prescribed  by  the  State. 

This  court  has  recognized  the  existence  and  upheld  the  exercise  of 
the  police  powers  of  the  States  in  many  cases  which  might  fairly  be 
considered  as  border  ones,  and  it  has,  in  the  course  of  its  determina- 
tion of  questions  regarding  the  asserted  invalidity  of  such  statutes, 
on  the  ground  of  their  violation  of  the  rights  secured  by  the  Federal 
Constitution,  been  guided  by  rules  of  a  very  liberal  nature,  the  appli- 
cation of  which  has  resulted,  in  numerous  instances,  in  upholding  the 
validity  of  State  statutes  thus  assailed.  Among  the  later  cases  where 
the  State  law  has  been  upheld  by  this  court  is  that  of  Holden  v. 
Hardy,  169  U.  S.  366  [929].  A  provision  in  the  act  of  the  legisla- 
ture of  Utah  was  there  under  consideration,  the  act  limiting  the  em- 
ployment of  workmen  in  all  underground  mines  or  workings,  to  eight 
hours  per  day,  "except  in  cases  of  emergency,  where  life  or  property 
is  in  imminent  danger."  It  also  limited  the  hours  of  labor  in  smelt- 
ing and  other  institutions  for  the  reduction  or  refining  of  ores  or 
metals  to  eight  hours  per  day,  except  in  like  cases  of  emergency. 
The  act  was  held  to  be  a  valid  exercise  of  the  police  powers  of  the 
State.  A  review  of  many  of  the  cases  on  the  subject,  decided  by  this 
and  other  courts,  is  given  in  the  opinion.  It  was  held  that  the  kind 
of  employment,  mining,  smelting,  etc.,  and  the  character  of  the  em- 
ployees in  such  kinds  of  labor,  were  such  as  to  make  it  reasonable  and 
proper  for  the  State  to  interfere  to  prevent  the  employees  from  being 
constrained  by  the  rules  laid  down  by  the  proprietors  in  regard  to 
labor.  The  following  citation  from  the  observations  of  the  Supreme 
Court  of  Utah  in  that  case  was  made  by  the  judge  wrifin'g  the  opinion 
of  this  court,  and  approved:  "The  law  in  question  is  confined  to  the 
protection  of  that  class  of  people  engaged  in  labor  in  underground 
mines,  and  in  smelters  and  other  works  wherein  ores  are  reduced  and 
refined.  This  law  applies  only  to  the  classes  subjecited  by  their  em- 
ployment to  the  peculiar  conditions  and  effects  attending  underground 
mining  and  work  in  smelters,  and  other  works  for  the  reduction  and 
refining  of  ores.  Therefore  it  is  not  necessary  to  discuss  or  de- 
cide whether  the  legislature  can  fix  the  hours  of  labor  in  other 
employments." 

It  will  be  observed  that,  even  with  regard  to  that  class  of  labor, 
the  Utah  statute  provided  for  cases  of  emergency  wherein  the  provi- 
sions of  the  statute  would  not  apply.  The  statute  now  before  this  . 
court  has  no  emergency  clause  in  it,  and,  if  the  statute  is  valid,  there 
are  no  circumstances  and  no  emergencies  under  which  the  slightest 
violation  of  the  provisions  of  the  act  wculd  be  innocent.  There  is 
nothing  in  Holden  v.  Hardy  which  covers  the  case  now  before  us. 


LOCKNER   V.   NEW   YORK.  1263 

Nor  does  Atkin  v.  Kansas,  191  U.  S.  207,  touch  the  case  at  bar.  The 
Atkin  case  was  decided  upon  the  right  of  the  State  to  control  its  mu- 
nicipal corporations,  and  to  prescribe  the  conditions  upon  which  it 
will  permit  work  of  a  public  character  to  be  done  for  a  municipality. 
Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  is  equally  far  from  an 
authority  for  this  legislation.  The  employees  in  that  case  were  held 
to  be  at  a  disadvantage  with  the  employer  in  matters  of  wages,  they 
being  miners  and  coal  workers,  and  the  act  simply  provided  for 
the  cashing  of  coal  orders  when  presented  by  the  miner  to  the 
employer. 

The  latest  case  decided  by  this  court,  involving  the  police  power, 
is  that  of  Jacobson  v.  Massachusetts,  decided  at  this  term  and  re- 
ported in  197  U.  S.  11.  It  related  to  compulsory  vaccination,  and  the 
law  was  held  valid  as  a  proper  exercise  of  the  police  powers  with 
reference  to  the  public  health.  It  was  stated  in  the  opinion  that  it 
was  a  case  "of  an  adult  who,  for  aught  that  appears,  was  himself  in 
perfect  health  and  a  fit  subject  of  vaccination,  and  yet,  while  remain- 
ing in  the  community,  refused  to  obey  the  statute  and  the  regulation, 
adopted  in  execution  of  its  provisions,  for  the  protection  of  the  pub- 
lic health  and  the  public  safety,  confessedly  endangered  by  the  pres- 
ence of  a  dangerous  disease."  That  case  is  also  far  from  covering  the 
one  now  before  the  court. 

Petit  V.  Minnesota,  177  U.  S.  164,  was  upheld  as  a  proper  exercise 
of  the  police  power  relating  to  the  observance  of  Sunday,  and  the 
case  held  that  the  legislature  had  the  right  to  declare  that,  as  matter 
of  law,  keeping  barber  shops  open  on  Sunday  was  not  a  work  of  ne- 
cessity or  charity. 

It  must,  of  course,  be  conceded  that  there  is  a  limit  to  the  valid  ex- 
ercise of  the  police  power  by  the  State.  There  is  no  dispute  concern- 
ing this  general  proposition.  Otherwise  the  Fourteenth  Amendment 
would  have  no  efficacy  and  the  legislatures  of  the  States  would  have 
unbounded  power,  and  it  would  be  enough  to  say  that  any  piece  of 
legislation  was  enacted  to  conserve  the  morals,  the  health,  or  the 
safety  of  the  people  ;  such  legislation  would  be  valid,  no  matter  how 
absolutely  without  foundation  the  claim  might  be.  The  claim  of  the 
police  power  would  be  a  mere  pretext  —  become  another  and  delu- 
sive name  for  the  supreme  sovereignty  of  the  State  to  be  exercised 
free  from  constitutional  restraint.  This  is  not  contended  for.  In 
every  case  that  comes  before  this  court,  therefore,  where  legislation 
of  this  character  is  concerned,  and  where  the  protection  of  the  Fed- 
eral Constitution  is  sought,  the  question  necessarily  arises  :  Is  this  a 
fair,  reasonable,  and  appropriate  exercise  of  the  police  power  of  the 
State,  or  is  it  an  unreasonable,  unnecessary,  and  arbitrary  interfer- 
ence with  the  right  of  the  individual  to  his  personal  liberty,  or  to 
enter  into  those  contracts  in  relation  to  labor  which  may  seem  to  him 
appropriate  or  necessary  for  the  support  of  liimself  and  his  family  ? 
Of  course  the  liberty  of  contract  relating  to  labor  includes  both  par- 


1264  ADDITIONAL   CASES   AS    TO    DUE    PROCESS    OP   LAW. 

ties  to  it.  The  one  has  as  much  right  to  purchase  as  the  other  to  sell 
labor. 

This  is  not  a  question  of  substituting  the  judgment  of  the  court  for 
that  of  the  legislature.  If  the  act  be  within  the  power  of  the  State  it 
is  valid,  although  the  judgment  of  the  court  might  be  totally  opposed 
to  the  enactment  of  such  a  law.  But  the  question  would  still  remain  : 
Is  it  within  the  police  power  of  the  State  ?  and  that  question  must  be 
answered  by  the  court. 

The  question  whether  this  act  is  valid  as  a  labor  law,  pure  and  sim- 
ple, may  be  dismissed  in  a  few  words.  There  is  no  reasonable  ground 
for  interfering  with  the  liberty  of  person  or  the  right  of  free  contract, 
by  determining  the  hours  of  labor,  in  the  occupation  of  a  baker. 
There  is  no  contention  that  bakers  as  a  class  are  not  equal  in  intelli- 
gence and  capacity  to  men  in  other  trades  or  manual  occupations,  or 
that  they  are  not  able  to  assert  their  rights  and  care  for  themselves 
without  the  protecting  arm  of  the  State  interfering  with  their  inde- 
pendence of  judgment  and  of  action.  They  are  in  no  sense  wards  of 
the  State.  Viewed  in  the  light  of  a  purely  labor  law,  with  no  refer- 
ence whatever  to  the  question  of  health,  we  think  that  a  law  like  the 
one  before  us  involves  neither  the  safety,  the  morals,  nor  the  welfare 
of  the  public,  and  that  the  interest  of  the  public  is  not  in  the  slight- 
est degree  affected  by  such  an  act.  The  law  must  be  upheld,  if  at  all, 
as  a  law  pertaining  to  the  health  of  the  individual  engaged  in  the 
occupation  of  a  baker.  It  does  not  affect  any  other  portion  of  the 
public  than  those  who  are  engaged  in  that  occupation.  Clean  and 
wholesome  bread  does  not  depend  upon  whether  the  baker  works  but 
ten  hours  per  day  or  only  sixty  hours  a  week.  The  limitation  of  the 
hours  of  labor  does  not  come  within  the  police  power  on  that  ground. 

It  is  a  question  of  which  of  two  powers  or  rights  shall  prevail  — 
the  power  of  the  State  to  legislate  or  the  right  of  the  individual  to 
liberty  of  person  and  freedom  of  contract.  The  mere  assertion  that 
the  subject  relates,  though  but  in  a  remote  degree,  to  the  public 
health,  does  not  necessarily  render  the  enactment  valid.  The  act 
must  have  a  more  direct  relation,  as  a  means  to  an  end,  and  the  end 
itself  must  be  appropriate  and  legitimate,  before  an  act  can  be  held 
to  be  valid  which  interferes  with  the  general  right  of  an  individual  to 
be  free  in  his  person  and  in  his  power  to  contract  in  relation  to  his 
own  labor. 

This  case  has  caused  much  diversity  of  opinion  in  the  state  courts. 
In  the  Supreme  Court  two  of  the  five  judges  composing  the  Appellate 
Division  dissented  from  the  judgment  affirming  the  validity  of  the  act. 
In  the  Court  of  Appeals  three  of  the  seven  judges  also  dissented  from 
the  judgment  upholding  the  statute.  Although  found  in  what  is  called 
a  labor  law  of  the  State,  the  Court  of  Appeals  has  upheld  the  act  as 
one  relating  to  the  public  health  —  in  other  words,  as  a  health  law. 
One  of  the  judges  of  the  Court  of  Appeals,  in  upholding  the  law, 
stated  that,  in  his  opinion,  the  regulation  in  question  could  not  be 


LOCKNER   V.    NEW   YORK.  1265 

sustained  unless  they  were  able  to  say,  from  common  knowledge,  that 
working  in  a  bakery  and  candy  factory  was  an  unhealthy  employ- 
ment. The  judge  held  that,  while  the  evidence  was  not  uniform,  it 
still  led  him  to  the  conclusion  that  the  occupation  of  a  baker  or  con- 
fectioner was  unhealthy  and  tended  to  result  in  diseases  of  the  res- 
piratory organs.  Three  of  the  judges  dissented  from  that  view,  and 
they  thought  the  occupatioii  of  a  baker  was  not  to  such  an  extent  un- 
healthy as  to  warrant  the  interference  of  the  legislature  with  the 
liberty  of  the  individual. 

We  think  the  limit  of  the  police  power  has  been  reached  and' 
passed  in  this  case.  There  is,  in  our  judgment,  no  reasonable  founda- 
tion for  holding  this  to  be  necessary  or  appropriate  as  a  health  law 
to  safeguard  the  public  health,  or  the  health  of  the  individuals  who 
are  following  the  trade  of  a  baker.  If  this  statute  be  valid,  and  if, 
therefore,  a  proper  case  is  made  out  in  which  to  deny  the  right  of  an 
individual,  sui  juris,  as  employer  or  employee,  to  make  contracts  for 
the  labor  of  the  latter  under  the  protection  of  the  provisions  of  the 
Federal  Constitution,  there  would  seem  to  be  no  length  to  which  leg- 
islation of  this  nature  might  not  go.  The  case  differs  widely,  as  we 
have^  already  stated,  from  the  expressions  of  this  court  in  regard  to 
laws  of  this  nature,  as  stated  in  Holden  v.  Hardy,  and  Jacobson  v. 
Massachusetts,  svjjra. 

We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a  baker, 
in  and  of  itself,  is  not  an  unhealthy  one  to  that  degree  which  would 
authorize  the  legislature  to  interfere  with  the  right  to  labor,  and  with 
the  right  of  free  contract  on  the  part  of  the  individual,  either  as  em- 
ployer or  employee.  In  looking  through  statistics  regarding  all  trades 
and  occupations,  it  may  be  true  that  the  trade  of  a  baker  does  not  ap- 
pear to  be  as  healthy  as  some  other  trades,  and  is  also  vastly  more 
healthy  than  still  others.  To  the  common  understanding  the  trade  of 
a  baker  has  never  been  regarded  as  an  unhealthy  one.  Very  likely 
physicians  would  not  recommend  the  exercise  of  that  or  of  any  other 
trade  as  a  remedy  for  ill  health.  Some  occupations  are  more  healthy 
than  others,  but  we  think  there  are  none  which  might  not  come  under 
the  power  of  the  legislature  to  supervise  and  control  the  hours  of 
working  therein,  if  the  mere  fact  that  the  occupation'is  not  absolutely 
and  perfectly  healthy  is  to  confer  that  right  upon  the  legislative  de- 
partment of  the  Government.  It  might  be  safely  affirmed  that  almost 
all  occupations  more  or  less  affect  the  health.  There  must  be  more 
than  the  mere  fact  of  the  possible  existence  of  some  small  amount 
of  unhealthiness  to  warrant  legislative  interference  with  liberty.  It 
is  unfortunately  true  that  labor,  even  in  any  department,  may  possibly 
carry  with  it  the  seeds  of  unhealthiness.  But  are  we  all,  on  tliat  ac- 
count, at  the  mercy  of  legislative  majorities  ?  A  printer,  a  tinsmith, 
a  locksmith,  a  carpenter,  a  cabinetmaker,  a  dry  goods  clerk,  a  bank's, 
a  lawyer's,  or  a  physican's  clerk,  or  a  clerk  in  almost  any  kind  of  busi- 
ness,  would  all   come  under  the  power  of   the    legislature,  on  this 

80 


1266  ADDITIONAL   CASES   AS   TO    DUE   PROCESS   OP   LAW. 

assumption.  No  trade,  no  occupation,  no  mode  of  earning  one's  liv- 
ing, could  escape  this  all-pervading  power,  and  the  acts  of  the  legis- 
lature in  limiting  the  hours  of  labor  in  all  employments  would  be 
valid,  although  such  limitation  might  seriously  cripple  the  ability  of 
the  laborer  to  support  himself  and  his  family.  In  our  large  cities 
there  are  many  buildings  into  which  the  sun  penetrates  for  but  a 
short  time  in  each  day,  and  these  buildings  are  occupied  by  people 
carrying  on  the  business  of  bankers,  brokers,  lawj^ers,  real  estate,  and 
many  other  kinds  of  business,  aided  by  many  clerks,  messengers,  and 
other  employees.  Upon  the  assumption  of  the  validity  of  this  act 
under  review,  it  is  not  possible  to  say  that  an  act,  prohibiting  lawyers' 
or  bank  clerks,  or  others,  for  contracting  to  labor  for  their  employers 
more  than  eight  hours  a  day  would  be  invalid.  It  might  be  said  that 
it  is  unhealthy  to  work  more  than  that  number  of  hours  in  an  apart- 
ment lighted  by  artificial  light  during  the  working  hours  of  the  day ; 
that  the  occupation  of  the  bank  clerk,  the  lawyer's  clerk,  the  real 
estate  clerk,  or  the  broker's  clerk  in  such  offices  is  therefore  un- 
healthy, and  the  legislature,  in  its  paternal  wisdom,  must,  therefore, 
have  the  right  to  legislate  on  the  subject  of,  and  to  limit  the  hours 
for  such  labor ;  and,  if  it  exercises  that  power,  and  its  validity  be 
questioned,  it  is  sufficient  to  say  it  has  reference  to  the  public  health  ; 
it  has  reference  to  the  health  of  the  employees  condemned  to  labor 
day  after  day  in  buildings  where  the  sun  never  shines  ;  it  is  a  health 
law,  and  therefore  it  is  valid,  and  cannot  be  questioned  by  the  courts. 

It  is  also  urged,  pursuing  the  same  line  of  argument,  that  it  is  to 
the  interest  of  the  State  that  its  population  should  be  strong  and 
robust,  and  therefore  any  legislation  which  may  be  said  to  tend  to 
make  people  healthy  must  be  valid  as  health  laws,  enacted  under  the 
police  power.  If  this  be  a  valid  argument  and  a  justification  for  this 
kind  of  legislation,  it  follows  that  the  protection  of  the  Federal  Con- 
stitution from  undue  interference  with  liberty  of  person  and  freedom 
of  contract  is  visionary,  wherever  the  law  is  sought  to  be  justified  as 
a  valid  exercise  of  the  police  power.  Scarcely  any  law  but  might 
find  shelter  under  such  assumptions,  and  conduct,  properly  so  called, 
as  well  as  contract,  would  come  under  the  restrictive  swaj"-  of  the 
legislature.  Not  only  the  hours  of  employees,  but  the  hours  of  em- 
ployers, could  be  regulated,  and  doctors,  lawyers,  scientists,  all  pro- 
fessional men,  as  well  as  athletes  and  artisans,  could  be  forbidden  to 
fatigue  their  brains  and  bodies  by  prolonged  hours  of  exercise,  lest 
the  fighting  strength  of  the  State  be  impaired.  We  mention  these  ex- 
treme cases  because  the  contention  is  extreme.  AVe  do  not  believe  in 
the  soundness  of  the  views  which  uphold  this  law.  On  the  contrary, 
we  think  that  such  a  law  as  this,  although  passed  in  the  assumed 
exercise  of  the  police  power,  and  as  relating  to  the  public  health,  or 
the  health  of  the  employees  named,  is  not  within  that  power,  and  is 
invalid.  The  act  is  not,  within  any  fair  meaning  of  the  term,  a  healtli 
law,  but  is  an  illegal  interference  with  the  rights  of  individuals,  both 


LOCKNER   V.    NEW    YORK.  1267 

employers  aud  employees,  to  make  contracts  regarding  labor  upon 
such  terras  as  they  may  think  best,  or  which  they  may  agree  upon 
with  the  other  parties  to  such  contracts.  Statutes  of  the  nature  of 
that  under  review,  limiting  the  hours  in  which  grown  and  intelligent 
men  may  labor  to  earn  their  living,  are  mere  meddlesome  interferences 
with  the  rights  of  the  individual,  and  they  are  not  saved  from  con- 
demnation by  the  claim  that  they  are  passed  in  the  exercise  of  the 
police  power  and  upon  the  subject  of  the  health  of  the  individual 
whose  rights  are  interfered  with,  unless  there  be  some  fair  ground, 
reasonable  in  and  of  itself,  to  say  that  there  is  material  danger  to  the 
public  health,  or  to  the  health  of  the  employees,  if  the  hours  of  labor 
are  not  curtailed.  If  this  be  not  clearly  the  case,  the  individuals 
whose  rights  are  thus  made  the  subject  of  legislative  interference  are 
under  the  protection  of  the  Federal  Constitution  regarding  their 
liberty  of  contract  as  well  as  of  person ;  and  the  legislature  of  the  State 
has  no  power  to  limit  their  right  as  proposed  in  this  statute.  All 
that  it  could  properly  do  has  been  done  by  it  with  regard  to  the  con- 
duct of  bakeries,  as  provided  for  in  the  other  sections  of  the  act, 
above  set  forth.  These  several  sections  provide  for  the  inspection  of 
the  premises  where  the  bakery  is  carried  on,  with  regard  to  furnish- 
ing proper  wash  rooms  and  water-closets,  apart  from  the  bake  room, 
also  with  regard  to  providing  proper  drainage,  plumbing,  and  paint- 
ing; the  sections,  in  addition,  provide  for  the  height  of  the  ceiling, 
the  cementing  or  tiling  of  floors,  where  necessary  in  the  opinion  of  the 
factory  inspector,  and  for  other  things  of  that  nature  ;  alterations  are 
also  provided  for,  and  are  to  be  made  where  necessary  in  the  opinion 
of  the  inspector,  in  order  to  comply  with  the  provisions  of  the  statute. 
These  various  sections  may  be  wise  and  valid  regulations,  and  they 
certainly  go  to  the  full  extent  of  providing  for  the  cleanliness  and  the 
healthiness,  so  far  as  possible,  of  the  quarters  in  which  bakeries  are 
to  be  conducted.  Adding  to  all  these  requirements  a  prohibition  to 
enter  into  any  contract  of  labor  in  a  bakery  for  more  than  a  certain 
number  of  hours  a  week  is,  in  our  judgment,  so  wholly  beside  the 
matter  of  a  proper,  reasonable,  and  fair  provision  as  to  run  counter 
to  that  liberty  of  person  and  of  free  contract  provided  for  in  the 
Federal  Constitution. 

It  was  further  urged  on  the  argument  that  restricting  the  hours  of 
labor  in  the  case  of  bakers  was  valid  because  it  tended  to  cleanliness 
on  the  part  of  the  workers,  as  a  man  was  more  apt  to  be  cleanly  when 
not  overworked,  and  if  cleanly  then  his  "  output "  was  also  more  likely 
to  be  so.  What  has  already  been  said  applies  with  equal  force  to 
this  contention.  We  do  not  admit  the  reasoning  to  be  sufficient  to 
justify  the  claimed  right  of  such  interference.  The  State  in  that  case 
would  assume  the  position  of  a  supervisor,  or  pater  fainiUas,  over 
every  act  of  the  individual,  and  its  right  of  governmental  interfer- 
ence with  his  hours  of  labor,  his  hours  of  exercise,  the  character 
thereof,  and  the  extent  to  which  it  shall  be  carried  would  be  rec- 


1268  ADDITIONAL   CASES    AS   TO    DUE   PROCESS   OF   LAW. 

ognized  and  upheld.  In  our  judgment  it  is  not  possible  in  fact  to 
discover  the  connection  between  the  number  of  hours  a  baker  may 
work  in  the  bakery  and  the  healthful  quality  of  the  bread  made  by 
the  workman.  The  connection,  if  any  exist,  is  too  shadowy  and  thin 
to  build  any  argument  for  the  interierenee  of  the  legislature.  If  the 
man  works  ten  hours  a  day,  it  is  all  right,  but  if  ten  and  a  half  or 
eleven,  his  health  is  in  danger  and  his  bread  may  be  unhealthful,  and, 
therefore,  he  shall  not  be  permitted  to  do  it.  This,  we  think,  is  un- 
reasonable and  entirely  arbitrary.  When  assertions  such  as  we  have 
adverted  to  become  necessary  in  order  to  give,  if  possible,  a  plausible 
foundation  for  the  contention  that  the  law  is  a  "  health  law,"  it  gives 
rise  to  at  least  a  suspicion  that  there  was  some  other  motive  dom- 
inating the  legislature  than  the  purpose  to  subserve  the  public  health 
or  welfare. 

This  interference  on  the  part  of  the  legislatures  of  the  several 
States  with  the  ordinary  trades  and  occupations  of  the  people  seems 
to  be  on  the  increase.  In  the  Supreme  Court  of  New  York,  in  the 
case  of  People  v.  Beattie,  Appellate  Division,  first  department,  de- 
cided in  1904,  89  N.  Y.  Supp.  193,  a  statute  regulating  the  trade  of 
horseshoeing,  and  requiring  the  person  practicing  such  trade  to  be 
examined,  and  to  obtain  a  certificate  from  a  board  of  examiners 
and  file  the  same  with  the  clerk  of  the  county  wherein  the  person 
proposes  to  practice  such  trade,  was  held  invalid,  as  an  arbitrary 
interference  with  personal  liberty  and  private  property  without  due 
process  of  law.  The  attempt  was  made,  unsuccessfully,  to  justify 
it  as  a  health  law. 

The  same  kind  of  a  statute  Avas  held  invalid  (In  re  Aubry)  by  the 
Supreme  Court  of  Washington  in  December,  1904.  78  Pac.  Rep.  900. 
The  court  held  that  the  act  deprived  citizens  of  their  liberty  and  prop- 
erty without  due  process  of  law,  and  denied  to  them  the  equal  protec- 
tion of  the  laws.  It  also  held  that  the  trade  of  a  horseshoer  is  not  a 
subject  of  regulation  under  the  police  power  of  the  State,  as  a  business 
concerning  and  directly  affecting  the  health,  welfare,  or  comfort  of  its 
inhabitants;  and  that,  therefore,  a  law  which  provided  for  the  ex- 
amination and  registration  of  horseshoers  in  certain  cities  was  uncon- 
stitutional as  an  illegitimate  exercise  of  the  police  power. 

The  Supreme  Court  of  Illinois,  in  Bessette  v.  People,  193  111.  334, 
also  held  that  a  law  of  the  same  nature,  providing  for  the  regulation 
and  licensing  of  horseshoers,  was  unconstitutional  as  an  illegal  inter- 
ference with  the  liberty  of  the  individual  in  adopting  and  pursuing 
such  calling  as  he  may  choose,  subject  only  to  the  restraint  necessary 
to  secure  the  common  Avelfare.  See  also  Godcharles  v.  Wigeman,  113 
Pa.  St.  431,  437 ;  Low  v.  Rees  Printing  Co.,  41  Neb.  127, 145.  In  these 
cases  the  courts  upheld  the  right  of  free  contract  and  the  right  to 
purchase  and  sell  labor  upon  such  terms  as  the  parties  may  agree  to. 

It  is  impossible  for  us  to  shut  our  eyes  to  the  fact  that  many  of  the 
laws  of  this  character,  while  passed  under  what  is  claimed  to  be  the 


LOCKNER   V.    NEW    YORK.  1269 

police  power  for  the  purpose  of  protecting  the  public  health  or  wel- 
fare, are,  in  reality,  passed  from  other  motives.  We  are  justified  in 
saying  so  when,  from  the  character  of  the  law  and  the  subject  upon 
which  it  legislates,  it  is  apparent  that  the  public  health  or  welfare 
bears  but  the  most  remote  relation  to  the  law.  The  purpose  of  a 
statute  must  be  determined  from  the  natural  and  legal  effect  of  the 
language  employed;  and  whether  it  is  or  is  not  repugnant  to  the  Con- 
stitution of  the  United  States  must  be  determined  from  the  natural 
effect  of  such  statutes  when  put  into  operation,  and  not  from  their 
proclaimed  purpose.  Minnesota  v.  Barber,  136  U.  S.  313  [376] ; 
Brimmer  v.  Eebman,  138  U.  S.  78  [373].  The  court  looks  beyond  the 
mere  letter  of  the  law  in  such  cases.  Yick  Wo  v.  Hopkins,  118  U.  S. 
356  [917]. 

It  is  manifest  to  us  that  the  limitation  of  the  hours  of  labor  as  pro- 
vided for  in  this  section  of  the  statute  under  which  the  indictment 
was  found,  and  the  plaintiff  in  error  convicted,  has  no  such  direct 
relation  to,  and  no  such  substantial  effect  upon,  the  health  of  the 
employee  as  to  justify  us  in  regarding  the  section  as  really  a  health 
law.  It  seems  to  us  that  the  real  object  and  purpose  were  simply  to 
regulate  the  hours  of  labor  between  the  master  and  his  employees 
(all  being  men,  sui  Juris),  in  a  private  business,  not  dangerous  in  any 
degree  to  morals,  or  in  any  real  and  substantial  degree  to  the  health 
of  the  employees.  Under  such  circumstances  the  freedom  of  master 
and  employee  to  contract  with  each  other  in  relation  to  their  employ- 
ment, and  in  defining  the  same,  cannot  be  prohibited  or  interfered 
with,  without  violating  the  Federal  Constitution. 

The  judgment  of  the  Court  of  Appeals  of  New  York,  as  well  as  that 
of  the  Supreme  Court  and  of  the  County  Court  of  Oneida  County, 
must  be  reversed  and  the  case  remanded  to  the  County  Court  for  fur- 
ther proceedings  not  inconsistent  with  this  opinion. 

Heversed. 

Mr.  Justice  Harlan  (with  whom  Mr.  Justice  White  and  Mr. 
Justice  Day  concurred)  dissenting. 

While  this  court  has  not  attempted  to  mark  the  precise  boundaries 
of  what  is  called  the  police  power  of  the  State,  the  existence  of  the 
power  has  been  uniformly  recognized,  both  by  the  Federal  and  state 
courts. 

All  the  cases  agree  that  this  power  extends  at  least  to  the  protec- 
tion of  the  lives,  the  health,  and  the  safety  of  the  public  against  the 
injurious  exercise  by  any  citizen  of  his  own  rights. 

In  Patterson  u.  Kentucky,  97  U.  S.  501  [489],  after  referring  to  the 
general  principle  that  rights  given  by  the  Constitution  cannot  be 
impaired  by  stabe  legislation  of  any  kind,  this  court  said:  ''It  [this 
court]  has,  nevertheless,  with  marked  distinctness  and  uniformity, 
recognized  the  necessity,  growing  out  of  the  fundamental  conditions 
of   civil  society,  of  upholding  state  police  regulations  which  were 


1270  ADDITIONAL    CASES    AS   TO    DUE   PROCESS   OF   LAW. 

enacted  in  good  faith,  and  had  appropriate  and  direct  connection  with 
that  protection  to  life,  health,  and  property  which  each  State  owes  to 
her  citizens."  So  in  Barbier  v.  Connolly,  113  U.  S.  27  [925]:  "But 
neither  the  [Fourteenth]  Amendment  — broad  and  comprehensive  as 
it  is  —  nor  any  other  Amendment  was  designed  to  interfere  with  the 
power  of  the  State,  sometimes  termed  its  police  power,  to  prescribe 
regulations  to  promote  the  health,  peace,  morals,  education,  and  good 
order  of  the  people." 

Speaking  generally,  the  State,  in  the  exercise  of  its  powers,  may 
not  unduly  interfere  with  the  right  of  the  citizen  to  enter  into  con- 
tracts that  may  be  necessary  and  essential  in  the  enjoyment  of  the 
inherent  rights  belonging  to  everyone,  among  which  rights  is  the 
right  "to  be  free  in  the  enjoyment  of  all  his  faculties,  to  be  free  to 
use  them  in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn 
his  livelihood  by  any  lawful  calling,  to  pursue  any  livelihood  or  avo- 
cation." This  was  declared  in  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
589  [929].  But  in  the  same  case  it  was  conceded  that  the  right  to 
contract  in  relation  to  persons  and  property,  or  to  do  business,  within 
a  State,  may  be  ';  regulated,  and  sometimes  prohibited,  when  the  con- 
tracts or  business  conflict  with  the  policy  of  the  State  as  contained  in 
its  statutes."     (p.  591.) 

So,  as  is  said  in  Holden  v.  Hardy,  169  U.  S.  366,  391  [929] :  "  This 
right  of  contract,  how^ever,  is  itself  subject  to  certain  limitations 
which  the  State  may  lawfully  impose  in  the  exercise  of  its   police  j 

powers.  While  this  power  is  inherent  in  all  governments,  it  has 
doubtless  been  greatly  expanded  in  its  application  during  the  past 
century,  owing  to  an  enormous  increase  in  the  number  of  occupations 
whichare  dangerous, or  so  fardetrimental,to  thehealthof  theemployees 
as  to  demand  special  precautions  for  their  well-being  and  protection, 
or  the  safety  of  adjacent  property.  While  this  court  has  held,  nota- 
bly in  the  cases  Davidson  v.  New  Orleans,  9G  U.  S.  97,  and  Yick  Wo 
V.  Hopkins,  118  U.  S.  356  [917],  that  the  police  power  cannot  be  put 
forward  as  an  excuse  for  oppressive  and  unjust  legislation,  it  may  be 
lawfully  resorted  tO  for  the  purpose  of  preserving  the  public  health, 
safety,  or  morals,  or  the  abatement  of  public  nuisances  ;  and  a  large 
discretion  '  is  necessarily  vested  in  the  legislature  to  determine,  not 
only  what  the  interests  of  the  public  require,  but  what  measures  are 
necessary  for  the  protection  of  such  interests.'  Lawton  v.  Steele, 
152  U.  S.  133,  136."  Referring  to  the  limitations  placed  by  the  State 
upon  the  hours  of  workmen,  the  court  in  the  same  case  said  (p.  395)  : 
"These  employments,  when  too  long  pursued,  the  legislature  has 
judged  to  be  detrimental  to  the  health  of  the  employees,  and,  so  long 
as  there  are  reasonable  grounds  for  believing  that  this  is  so,  its 
decision  upon  this  subject  cannot  be  reviewed  by  the  Federal  courts." 

Subsequently,  in  Gundling  v.  Chicago,  177  U.  S.  183,  188,  this 
court  said:  "Regulations  respecting  the  pursuit  of  a  lawful  trade 
or  business  are  of  very  frequent   occurrence   in  the  various   cities 


LOCKNER   V.   NEW   YORK.  1271 

of  the  country,  and  what  such  regulations  shall  be  and  to  what 
particular  trade,  business,  or  occupation  they  shall  appl}',  are  ques- 
tions for  the  State  to  determine,  and  their  determination  comes 
within  the  proper  exercise  of  the  police  power  by  the  State,  and, 
unless  the  regulations  are  so  utterly  unreasonable  and  extravagant 
in  their  nature  and  purpose  that  the  property  and  personal  rights  of 
the  citizen  are  unnecessarily,  and  in  a  manner  wholly  arbitrary,  in- 
terfered with  or  destroyed  without  due  process  of  law,  they  do  not 
extend  beyond  the  power  of  the  State  to  pass,  and  they  form  no  sub- 
ject for  Federal  interference.  As  stated  in  Crowley  v.  Christensen, 
137  U.  S.  80,  '  the  possession  and  enjoyment  of  all  rights  are  subject 
to  such  reasonable  conditions  as  may  be  deemed  by  the  governing 
authority  of  the  country  essential  to  the  safety,  health,  peace,  good 
order,  and  morals  of  the  community.'  " 

In  St.  Louis,  Iron  Mountain  &c.  Ry.  v.  Paul,  173  U.  S.  404,  409, 
and  in  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  21,  22,  it  was 
distinctly  adjudged  that  the  right  of  contract  was  not  ''absolute  in 
respect  to  every  matter,  but  may  be  subjected  to  the  restraints  de- 
manded by  the  safety  and  welfare  of  the  State."  Those  cases  illus- 
trate the  extent  to  which  the  State  may  restrict  or  interfere  with  the 
exercise  of  the  right  of  contracting. 

The  authorities  on  the  same  line  are  so  numerous  that  further  cita- 
tions are  unnecessary. 

I  take  it  to  be  firmly  established  that  what  is  called  the  liberty  of 
contract  may,  within  certain  limits,  be  subjected  to  regulations  de- 
signed and  calculated  to  promote  the  general  welfare,  or  to  guard  the 
public  healtli,  the  public  morals,  or  the  public  safety.  "  The  liberty 
secured  by  the  Constitution  of  the  United  States  to  every  person 
within  its  jurisdiction  does  not  import,"  this  court  has  recently  said, 
"  an  absolute  right  in  each  person  to  be  at  all  times  and  in  all  circum- 
stances wholly  freed  from  restraint.  There  are  manifold  restraints 
to  which  every  person  is  necessarily  subject  for  the  common  good." 
Jacobson  v.  Massachusetts,  197  U.  S.  11. 

Granting,  then,  that  there  is  a  liberty  of  contract  which  cannot  be 
violated  even  under  the  sanction  of  direct  legislative  enactment,  but 
assuming,  as  according  to  settled  law  we  may  assume,  tliat  such  lib- 
erty of  contract  is  subject  to  such  regulations  as  the  State  may  rea- 
sonably prescribe  for  the  common  good  and  the  well-being  of  society, 
what  are  the  conditions  under  which  the  judiciary  may  declare  such 
regulations  to  be  in  excess  of  legislative  authority  and  void  ?  Upon 
this  point  there  is  no  room  for  dispute;  for  the  rule  is  universal  that 
a  legislative  enactment,  Federal  or  state,  is  never  to  be  disregarded 
or  held  invalid  unless  it  be,  beyond  question,  plainly  and  palpably  in 
excess  of  legislative  power.  In  Jacobson  v.  Massachusetts,  supra, 
we  said  that  the  power  of  the  courts  to  review  legislative  action  in 
respect  of  a  matter  affecting  the  general  welfare  exists  on/j/  "  when 
that  which  the  legislature  has  done  comes  within  the  rule  tliat,  if  a 


1272  ADDITIONAL    CASES   AS   TO    DUE   PROCESS   OP   LAW. 

statute  purporting  to  have  been  enacted  to  protect  the  public  health, 
the  public  morals,  or  the  public  safety  has  no  real  or  substantial  re- 
lation to  those  objects,  or  is,  beyond  all  question,  a  plain,  palpable 
invasion  of  rights  secured  by  the  fundamental  law  "  —  citing  Mugler 
V.  Kansas,  123  U.  S.  623,  661  [938 j ;  Minnesota  v.  Barber,  136  U.  S.  313, 
320  [376];  Atkin  v.  Kansas,  19l'u.  S.  207,  223.  If  there  be  doubt 
as  to  the  validity  of  the  statute,  that  doubt  must  therefore  be  resolved 
in  favor  of  its  validity,  and  the  courts  must  keep  their  hands  off, 
leaving  the  legislature  to  meet  the  responsibility  for  unwise  legisla- 
tion. If  the  end  which  the  legislature  seeks  to  accomplish  be  one  to 
■which  its  powers  extends,  and  if  the  means  employed  to  that  end, 
although  not  the  wisest  or  best,  are  yet  not  plainly  and  palpably  un- 
authorized by  law,  then  the  court  cannot  interfere.  In  other  words, 
when  the  validity  of  a  statute  is  questioned,  the  burden  of  proof,  so 
to  speak,  is  upon  those  who  assert  it  to  be  unconstitutional.  ^M'Cul- 
loch  V.  Maryland,  4  Wheat.  316,  421  [1]. 

Let  these  principles  be  applied  to  the  present  case.  By  the  statute 
in  question  it  is  provided  that  "Xo  employee  shall  be  required,  or  per- 
mitted, to  work  in  a  biscuit,  bread,  or  cake  bakery,  or  confectionery 
establishment  more  than  sixty  hours  in  any  one  week,  or  more  than 
ten  hours  in  any  one  day,  unless  for  the  purpose  of  making  a  shorter 
work  day  on  the  last  day  of  the  week ;  nor  more  hours  in  any  one 
week  than  will  make  an  average  of  ten  hours  per  day  for  the  number 
of  days  during  such  week  in  which  such  employee  shall  work." 

It  is  plain  that  this  statute  was  enacted  in  order  to  protect  the 
physical  well-being  of  those  who  work  in  bakery  and  confectionery 
establishments.  It  may  be  that  the  statute  had  its  origin,  in  part,  in 
the  belief  that  employers  and  employees  in  such  establishments  were 
not  upon  an  equal  footing,  and  that  the  necessities  of  the  latter  often 
compelled  them  to  submit  to  such  exactions  as  unduly  taxed  their 
strength.  Be  this  as  it  may,  the  statute  must  be  taken  as  express- 
ing the  belief  of  the  people  of  New  York  that,  as  a  general  rule, 
and  in  the  case  of  the  average  man,  labor  in  excess  of  sixty  hours 
during  a  week  in  such  establishments  may  endanger  the  health  of 
those  who  thus  labor.  Whether  or  not  this  be  wise  legislation  it  is 
not  the  province  of  the  court  to  inquire.  Under  our  systems  of  gov- 
ernment the  courts  are  not  concerned  with  the  wisdom  or  policy  of 
legislation.  So  that,  in  determining  the  question  of  power  to  inter- 
fere with  liberty  of  contract,  the  court  may  inquire  whether  the 
means  devised  by  the  State  are  germane  to  an  end  which  may  be 
lawfully  accomplished  and  have  a  real  or  substantial  relation  to  the 
protection  of  health,  as  involved  in  the  daily  work  of  the  persons, 
male  and  female,  engaged  in  bakery  and  confectionery  establish- 
ments. But  when  this  inquiry  is  entered  upon  I  find  it  impossible, 
in  view  of  common  experience,  to  say  that  there  is  here  no  real  or 
substantial  relation  between  the  means  employed  by  the  State  and 
the  end  sought  to  be  accomplished  by  its  legislation.    Mugler  v.  Kan- 


LOCKNER    V.    NEW   YORK.  1273 

sas,  siipra.  Nor  can  I  say  that  the  statute  has  no  appropriate  or 
direct  connection  with  that  protection  to  health  which  each  State 
owes  to  her  citizens,  Patterson  v.  Kentucky,  supra  [489]  ;  or  that  it 
is  not  promotive  of  the  health  of  the  employees  in  question,  Holden 
V.  Hardy,  [929] ;  Lawton  v.  Steele,  supra  ;  or  that  the  regulation  pre- 
scribed by  the  State  is  utterly  unreasonable  and  extravagant  or 
wholly  arbitrary,  Gundling  v.  Chicago,  supra.  Still  less  can  I  say 
that  the  statute  is,  beyond  question,  a  plain,  palpable  invasion  of 
rights  secured  by  the  fundamental  law.  Jacobson  v.  Massachusetts, 
supra.  Therefore  I  submit  that  this  court  will  transcend  its  functions 
if  it  assumes  to  annul  the  statute  of  New  York.  It  must  be  remem- 
bered that  this  statute  does  not  apply  to  all  kinds  of  business.  It 
applies  only  to  work  in  bakery  and  confectionery  establishments,  in 
which,  as  all  know,  the  air  constantly  breathed  by  workmen  is  not  as 
pure  and  healthful  as  that  to  be  found  in  some  other  establishments 
or  out  of  doors. 

Professor  Hirt  in  his  treatise  on  the  "  Diseases  of  the  Workers  " 
has  said  :  "  The  labor  of  the  bakers  is  among  the  hardest  and  most 
laborious  imaginable,  because  it  has  to  be  performed  under  conditions 
injurious  to  the  health  of  those  engaged  in  it.  It  is  hard,  very  hard 
work,  not  only  because  ii  requires  a  great  deal  of  physical  exertion 
in  an  overheated  workshop  and  during  unreasonably  long  hours,  but 
more  so  because  of  the  erratic  demands  of  the  public,  compelling  the 
baker  to  perform  the  greater  part  of  his  work  at  night,  thus  depriving 
him  of  an  opportunity  to  enjoy  the  necessary  rest  and  sleep,  a  fact 
which  is  highly  injurious  to  his  health."  Another  writer  says  :  "The 
constant  inhaling  of  flour  dust  causes  inflammation  of  the  lungs  and 
of  the  bronchial  tubes.  The  eyes  also  suffer  through  this  dust,  which 
is  responsible  for  the  many  cases  of  running  eyes  among  the  bakers. 
The  long  hours  of  toil  to  which  all  bakers  are  subjected  produce 
rheumatism,  cramps,  and  swollen  legs.  The  intense  heat  in  the 
workshops  induces  the  workers  to  resort  to  cooling  drinks,  which, 
together  with  their  habit  of  exposing  the  greater  part  of  their 
bodies  to  the  change  in  the  atmosphere,  is  another  source  of  a 
number  of  diseases  of  various  organs.  Nearly  all  bakers  are  pale- 
faced  and  of  more  delicate  health  than  the  workers  of  other  crafts, 
which  is  chiefly  due  to  their  hard  work  and  their  irregular  and  un- 
natural mode  of  living,  whereby  the  power  of  resistance  against  dis- 
ease is  greatly  diminished.  The  average  age  of  a  baker  is  below  that 
of  other  workmen  ;  they  seldom  live  over  their  fiftieth  year,  most  of 
them  dying  between  the  ages  of  forty  and  fifty.  During  periods  of 
epidemic  diseases  the  bakers  are  generally  the  first  to  succumb  to  the 
disease,  and  the  number  swept  away  during  such  periods  far  exceeds 
the  number  of  other  crafts  in  comparison  to  the  men  employed  in  the 
respective  industries.  When,  in  1720,  the  plague  visited  the  city  of 
Marseilles,  France,  every  baker  in  the  city  succumbed  to  the  epi- 
demic, which   caused   considerable   excitement   in   the   neighboring 


1274  ADDITIONAL   CASES   AS   TO    DUE   PROCESS   OF   LAW. 

cities  and  resulted  in  measures  for  the  sanitary  protection  of  the 
bakers," 

In  the  Eighteenth  Annual  Report  by  the  New  York  Bureau  of  Sta- 
tistics of  Labor  it  is  stated  that  among  the  occupations  involving 
exposure  to  conditions  that  interfere  with  nutrition  is  that  of  a 
baker,  (p.  52.)  In  that  Eeport  it  is  also  stated  that,  "from  a  social 
point  of  view,  production  will  be  increased  by  any  change  in  indus- 
trial organization  which  diminishes  the  number  of  idlers,  paupers, 
and  criminals.  Shorter  hours  of  work,  by  allowing  higher  standards 
of  comfort  and  purer  family  life,  promise  to  enhance  the  industrial 
efficiency  of  the  wage-working  class  —  improved  health,  longer  life, 
more  content  and  greater  intelligence  and  inventiveness,"     (p.  82.) 

Statistics  show  that  the  average  daily  working  time  among  work- 
ingmen  in  different  countries  is,  in  Australia,  eight  hours ;  in  Great 
Britain,  nine ;  in  the  United  States,  nine  and  three-quarters  ;  in  Den- 
mark, nine  and  three-quarters;  in  IsTorway,  ten;  Sweden,  France, 
and  Switzerland,  ten  and  one-half;  Germany,  ten  and  one-quarter; 
Belgium,  Italy,  and  Austria,  eleven  ;  and  in  Russia,  twelve  hours. 

We  judicially  know  that  the  question  of  the  number  of  hours  dur- 
ing which  a  workman  should  continuously  labor  has  been,  for  a  long 
period,  and  is  yet,  a  subject  of  serious  consideration  among  civilized 
peoples,  and  by  those  having  special  knowledge  of  the  laws  of  health. 
Suppose  the  statute  prohibited  labor  in  bakery  and  confectionery 
establishments  in  excess  of  eighteen  hours  each  day.  No  one,  I 
take  it,  could  dispute  the  power  of  the  State  to  enact  such  a  statute. 
But  the  statute  before  us  does  not  embrace  extreme  or  exceptional 
cases.  It  may  be  said  to  occupy  a  middle  ground  in  respect  of  the 
hours  of  labor.  What  is  the  true  ground  for  the  State  to  tnke  be- 
tween legitimate  protection,  by  legislation,  of  the  public  health  and 
liberty  of  contract  is  not  a  question  easily  solved,  nor  one  in  respect 
of  which  there  is  or  can  be  absolute  certainty.  There  are  very  few, 
if  any,  questions  in  political  economy  about  which  entire  certainty 
may  be  predicated.  One  writer  on  relation  of  the  State  to  labor  has 
well  said:  "The  manner,  occasion,  and  degree  in  which  the  State 
may  interfere  with  the  industrial  freedom  of  its  citizens  is  one  of  the 
most  debatable  and  difficult  questions  of  social  science,"     Jevons,  33. 

We  also  judicially  know  that  the  number  of  hours  that  should  con- 
stitute a  day's  labor  in  particular  occupations  involving  the  physical 
strength  and  safety  of  workmen  has  been  the  subject  of  enactments 
by  Congress  and  by  nearly  all  of  the  States,  Many,  if  not  most,  of 
those  enactments  fix  eight  hours  as  the  proper  basis  of  a  day's  labor. 

I  do  not  stop  to  consider  whether  any  particular  view  of  this  eco- 
nomic question  presents  the  sounder  theory.  What  the  precise  facts 
are  it  may  be  difficult  to  sa3%  It  is  enough  for  the  determination  of 
this  case,  and  it  is  enough  for  this  court  to  know,  that  the  question 
is  one  about  wliich  there  is  room  for  debate  and  for  an  honest  differ- 
ence of  opinion.     There  are  many  reasons  of  a  weighty,  substantial 


LOCKNER   V.    NEW    YORK. 


1275 


character,  based  upon  the  experience  of  mankind,  in  support  of  the 
theory  that,  all  things  considered,  more  than  ten  hours'  steady  work 
each  day,  from  week  to  week,  in  a  bakery  or  confectionery  establish- 
ment, may  endanger  the  health  and  shorten  the  lives  of  the  work- 
men, thereby  diminishing  their  physical  and  mental  capacity  to  serve 
the  State  and  to  provide  for  those  dependent  upon  them. 

If  such  reasons  exist,  that  ought  to  be  the  end  of  this  case,  for  the 
State  is  not  amenable  to  the  judiciary,  in  respect  of  its  legislative 
enactments,  unless  such  enactments  are  plainly,  palpably,  beyond  all 
question,  inconsistent  with  the  Constitution  of  the  United  States. 
We  are  not  to  presume  that  the  State  of  New  York  has  acted  in  bad 
faith.  Nor  can  we  assume  that  its  legislature  acted  without  due  de- 
liberation, or  that  it  did  not  determine  this  question  upon  the  fullest 
attainable  information  and  for  the  common  good.  We  cannot  say 
that  the  State  has  acted  without  reason,  nor  ought  we  to  proceed  upon 
the  theory  that  its  action  is  a  mere  sham.  Our  duty,  I  submit,  is  to 
sustain  the  statute  as  not  being  in  conflict  with  the  Federal  Consti- 
tution, for  the  reason  —  and  such  is  an  all-sufficient  reason  —  it  is  not 
shown  to  be  plainly  and  palpably  inconsistent  with  that  instrument. 
Let  the  State  alone  in  the  management  of  its  purely  domestic  affairs, 
so  long  as  it  does  not  appear  beyond  all  question  that  it  has  violated 
the  Federal  Constitution.  This  view  necessarily  results  from  the 
principle  that  the  health  and  safety  of  the  people  of  a  State  are  pri- 
marily for  the  State  to  guard  and  protect. 

I  take  leave  to  say  that  the  New  York  statute,  in  the  particulars 
here  involved,  cannot  be  held  to  be  in  conflict  with  the  Fourteenth 
Amendment  without  enlarging  the  scope  of  the  amendment  far  be- 
yond its  original  purpose,  and  without  bringing  under  the  supervision 
of  this  court  matters  which  have  been  supposed  to  belong  exclusively 
to  the  legislative  departments  of  the  several  States  when  exerting 
their  conceded  power  to  guard  the  health  and  safety  of  their  citizens 
by  such  regulations  as  they  in  their  wisdom  deem  best.  Health  laws 
of  every  description  constitute,  said  Chief  Justice  Marshall,  a  part  of 
that  mass  of  legislation  which  "  embraces  everything  within  the  ter- 
•  ritory  of  a  State,  not  surrendered  to  the  General  Government ;  all 
which  can  be  most  advantageously  exercised  by  the  States  them- 
selves." Gibbons  v.  Ogden,  9  Wheat.  1,  203  [235].  A  decision 
that  the  New  York  statute  is  void  under  the  Fourteenth  Amendment 
will,  in  my  opinion,  involve  consequences  of  a  far-reaching  and  mis- 
chievous character  ;  for  such  a  decision  would  seriously  cripple  the 
inherent  power  of  the  States  to  care  for  the  lives,  health,  and  well- 
being  of  their  citizens.  Those  are  matters  which  can  be  best  con- 
trolled by  the  States.  The  preservation  of  the  just  powers  of  the 
States  is  quite  as  vital  as  the  preservation  of  the  powers  of  the  Gen- 
eral Government. 

When  this  court  had  bfefore  it  the  question  of  the  constitutionality 
of  a  statute  of  Kansas  making  it  a  criminal  offense  for  a  contractor 


1276  ADDITIONAL   CASES   AS   TO    DUE   PROCESS   OP   LAW. 

for  public  wcwk  to  permit  or  require  his  employees  to  perform  labor 
upon  such  work  in  excess  of  eight  hours  each  day,  it  was  contended 
that  the  statute  was  in  derogation  of  the  liberty  both  of  employees 
and  employer.  It  was  further  contended  that  the  Kansas  statute 
was  mischievous  in  its  tendencies.  This  court,  while  disposing  of 
the  question  only  as  it  affected  public  work,  held  that  the  Kansas 
statute  was  not  void  under  the  Fourteenth  Amendment.  But  it 
took  occasion  to  say  what  may  well  be  here  repeated  :  "  The  respon- 
sibility therefor  rests  upon  legislators,  not  upon  the  courts.  No  evils 
arising  from  such  legislation  could  be  more  far  reaching  than  those 
that  might  come  to  our  system  of  government  if  the  judiciary,  aban- 
doning the  sphere  assigned  to  it  by  the  fundamental  law,  should 
enter  the  domain  of  legislation,  and  upon  grounds  merely  of  justice 
or  reason  or  wisdom  annul  statutes  that  had  received  the  sanction  of 
the  people's  representatives.  We  are  reminded  by  counsel  that  it  is 
the  solemn  duty  of  the  courts  in  cases  before  them  to  guard  the  con- 
stitutional rights  of  the  citizen  against  merely  arbitrary  power.  That 
is  unquestionably  true.  But  it  is  equally  true  —  indeed,  the  public 
interests  imperatively  demand  —  that  legislative  enactments  should 
be  recognized  and  enforced  by  the  courts  as  embodying  the  will  of 
the  people,  unless  they  are  plainly  and  palpably  beyond  all  question 
in  violation  of  the  fundamental  law  of  the  Constitution."  Atkin  v. 
Kansas,  191  U.  S.  207,  223. 

The  judgment,  in  my  opinion,  should  be  affirmed. 

Me.  Justice  Holmes  dissenting : 

I  regret  sincerely  that  I  am  unable  to  agree  with  the  judgment  in 
this  case,  and  that  I  think  it  my  duty  to  express  my  dissent. 

This  case  is  decided  upon  an  economic  theory  which  a  large  part 
of  the  country  does  not  entertain.  If  it  were  a  question  whether  I 
agreed  with  that  theory,  I  should  desire  to  study  it  further  and  long 
before  making  up  my  mind.  But  I  do  not  conceive  that  to  be  my 
duty,  because  I  strongly  believe  that  my  agreement  or  disagreement 
has  nothing  to  do  with  the  right  of  a  majority  to  embody  their  opin- 
ions in  law.  It  is  settled  by  various  decisions  of  this  court  that 
state  constitutions  and  state  laws  may  regulate  life  in  many  ways 
which  we  as  legislators  might  think  as  injudicious,  or  if  you  like  as 
tyrannical,  as  this,  and  which,  equally  with  this,  interfere  with  the 
liberty  to  contract.  Sunday  laws  and  usury  laws  are  ancient  examples. 
A  more  modern  one  is  the  prohibition  of  lotteries.  The  liberty  of 
the  citizen  to  do  as  he  likes  so  long  as  he  does  not  interfere  with  the 
liberty  of  others  to  do  the  same,  which  has  been  a  shibboleth  for 
some  well-known  writers,  is  interfered  with  by  school  laws,  by  the 
Postoffice,  by  every  state  or  municipal  institution  which  takes  his 
money  for  purposes  thought  desirable,  whether  he  likes  it  or  not. 
The  Fourteenth  Amendment  does  not  enact  IMr.  Herbert  Spencer's 
Social  Statics.     The  other  day  we  sustained  the  Massachusetts  vac- 


1 


i 


LOCKNER   V.   NEW    YORK.  1277 

cination  law.  Jacobson  v.  Massachusetts,  197  U.  S.  11.  United 
States  and  state  statutes  and  decisions  cutting  down  the  liberty  to 
contract  by  way  of  combination  are  familiar  to  this  court.  Northern 
Securities  Co.  v.  United  States,  193  U.  S.  197  [1081].  Two  years  ago 
we  upheld  the  prohibition  of  sales  of  stock  on  margins,  or  for  future 
delivery,  in  the  Constitution  of  California.  Otis  v.  Parker,  187  U.  S. 
606.  The  decision  sustaining  an  eight-hour  law  for  miners  is  still 
recent.  Holden  v.  Hardy,  169  U.  S.  366  [929].  Some  of  these  laws 
embody  convictions  or  prejudices  which  judges  are  likely  to  share. 
Some  may  not.  But  a  constitution  is  not  intended  to  embody  a  partic- 
ular economic  theory,  whether  of  paternalism  and  the  organic  relation 
of  the  citizen  to  the  State  or  of  laissez  faire.  It  is  made  for  people  of 
fundamentally  differing  views,  and  the  accident  of  our  finding  certain 
opinions  natural  and  familiar,  or  novel,  and  even  shocking,  ought  not 
to  conclude  our  judgment  upon  the  question  whether  statutes  embody- 
ing them  conflict  with  the  Constitution  of  the  United  States. 

General  propositions  do  not  decide  concrete  cases.  The  decision 
will  depend  on  a  judgment  or  intuition  more  subtle  than  any  articu- 
late major  premise.  But  I  think  that  the  proposition  just  stated,  if  it 
is  accepted,  will  carry  us  far  toward  the  end.  Every  opinion  tends 
to  become  a  law.  I  think  that  the  word  liberty,  in  the  Fourteenth 
Amendment,  is  perverted  when  it  is  held  to  prevent  the  natural  out- 
come of  a  dominant  opinion,  unless  it  can  be  said  that  a  rational  and 
fair  man  necessarily  would  admit  that  the  statute  proposed  would  in- 
fringe fundamental  principles  as  they  have  been  understood  by  the 
traditions  of  our  people  and  our  law.  It  does  not  need  research  to 
show  that  no  such  sweeping  condemnation  can  be  passed  upon  the 
statute  before  us.  A  reasonable  man  might  think  it  a  proper  measure 
on  the  score  of  health.  Men  whom  I  certainly  could  not  pronounce 
unreasonable  would  uphold  it  as  a  first  instalment  of  a  general  regula- 
tion of  the  hours  of  work.  Whether  in  the  latter  aspect  it  would  be 
open  to  the  charge  of  inequality  I  think  it  unnecessary  to  discuss.^ 

1  In  the  case  of  Muller  i;.  Ouegon,  208  U.  S.  412,  28  Sup.  Ct.  Rep.  .324  (1908),  it 
was  held  that  a  State  statute  limiting  the  hours  of  einploymeut  of  women  was  not  iu 
conflict  with  the  provisions  of  the  Fourteenth  Amendment,  although  it  involved  a 
limitation  on  freedom  of  contract. 

In  the  case  of  Adair  v.  United  States,  208  U.  S.  161,  28  Sup.  Ct.  Rep.  277  (1908), 
an  act  of  Congress  making  it  a  criminal  offense  for  a  carrier  engaged  in  interstate  com- 
merce to  discharge  an  emjdoyee  simply  because  of  his  membership  in  a  labor  organiz- 
ation, was  held  to  be  in  violation  of  the  guarantee  of  due  process  of  law  found  in  the 
Fifth  Amendment.  Mb.  Justice  McKenna  and  Mr.  Justice  Holmes  dissented  in 
separate  opinions. 


1278  ADDITIONAL   CASES    AS   TO    DUE   PROCESS   OF   LAW. 

COTTING  V.   KANSAS   CITY  STOCK-YARDS  COMPANY. 

183  U.  S.  79;  22  Sup.  Ct.  Rep.  30.     1901. 

[In  error  to  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Kansas,  which  dismissed  the  complaint  of  plaintiff  in  error, 
asking  that  the  enforcement  of  a  State  statute  regulating  the  rates 
of  public  stock-yards  be  restrained  on  the  ground  that  it  was  ap- 
plicable only  to  one  particular  company  and  not  to  other  companies 
or  corporations  engaged  in  like  business  in  the  State,  and  therefore 
was  invalid  as  denying  to  that  company  the  equal  protection  of 
the  laws.] 

Mr.  Justice  Brewek  delivered  the  opinion  of  the  court. 

[The  views  stated  in  the  opinion  on  the  question  whether  the 
statute  is  unconstitutional  upon  the  ground  that  by  its  necessary 
operation  it  would  deprive  the  company  of  its  property  without 
due  process  of  law  are  not  concurred  in  by  the  majority  of  the 
justices,  those  not  concurring  declining  to  express  an  opinion  on  that 
question.] 

The  act  in  terms  applies  only  to  those  stock-yards  within  the 
State  "  which  for  the  preceding  twelve  months  shall  have  had  an 
average  daily  receipt  of  not  less  than  one  hundred  head  of  cattle,  or 
three  hundred  head  of  hogs,  or  three  hundred  head  of  sheep." 

It  appears  affirmatively  from  the  testimony  that  there  are  other 
stock-yards  in  the  State,  one  at  Wichita  and  one  at  Jamestown, 
and  it  is  stated  by  counsel  for  appellants  that  there  are  many  others 
scattered  through  the  State,  each  doing  a  small  business.  Neither  the 
yard  at  Wichita  nor  that  at  Jamestown,  so  far  as  the  testimony  shows, 
comes  within  the  scope  of  this  act.  So  it  may  be  assumed  from  the 
record  that  the  legislature  of  Kansas,  having  regard  simply  to  the 
stock-yards  at  Kansas  City  and  the  volume  of  business  done  at  those 
yards,  passed  this  act  to  reduce  their  charges.  ...  In  short,  we  come 
back  to  the  thought  that  the  classification  is  one  not  based  upon  the 
character  or  value  of  the  services  rendered,  but  simply  on  the  amount 
of  the  business  which  the  party  does,  and  upon  the  theory  that  al- 
though he  makes  a  charge  which  everybody  else  in  the  same  business 
makes,  and  which  is  perfectly  reasonable  so  far  as  the  value  of  the 
services  rendered  to  the  individuals  seeking  them  is  concerned,  yet  if 
by  the  aggregation  of  business  he  is  enabled  to  make  large  profits,  his 
charges  may  be  cut  down. 

The  question  thus  presented  is  of  profoundest  significance.  Is  it 
true  in  this  country  that  one  who  by  his  attention  to  business,  b}'  his 
efforts  to  satisfy  customers,  by  his  sagacity  in  discerning  the  probable 
courses  of  trade,  and  by  contributing  of  his  means  to  bring  trade  into 
those  lines,  succeeds  in  building  up  a  large  and  profitable  business, 
becomes  thereby  a  legitimate  object  of  the  legislative  scalping  knife? 


COTTING   V.    KANSAS   CITY   STOCK- YARDS    COMPANY.  1279 

Having  created  the  facilities  which  the  many  eu joy,  can  the  many 
turn  around  and  say,  you  are  making  too  much  out  of  those  facilities, 
and  you  must  divide  with  us  your  profits  ?  We  cannot  shut  our  eyes 
to  well-known  facts.  Kansas  is  an  agricultural  State.  Its  expensive 
and  fertile  prairies  produce  each  year  enormous  crops  of  corn  and  other 
grains.  While  portions  of  these  crops  are  shipped  to  mills  to  be  man- 
ufactured into  meal  and  floar,  it  is  found  by  many  that  there  is  a 
profit  in  feeding  them  to  stock,  so  that  the  amount  of  stock  which 
is  raised  and  fattened  in  Kansas  is  large  and  makes  one  of  the  great  in- 
dustries of  the  State.  Now,  shall  they  whose  interests  are  all  along  the 
line  of  production,  having  by  virtue  of  their  numerical  majority  the 
control  of  legislation,  be  permitted  to  say  to  one  who  acts  as  an  in- 
termediary between  transportation  and  sale,  that  while  we  permit  no 
interference  with  the  prices  which  we  put  upon  our  products,  never- 
theless we  cut  down  your  charges  for  intermediate  services  ;  and  this, 
not  because  any  particular  charge  is  unreasonable,  but  because  you 
are  making  by  the  aggregate  of  those  cliarges  too  large  a  sum,  and 
ought  therefore  to  divide  with  us.  The  possibility  of  such  legislation 
suggests  the  warning  words  of  Judge  Catron,  afterwards  Mr.  Justice 
Catron,  of  this  court,  when  in  Vanzant  v.  Waddel,  2  Yerg.  260,  270, 
he  said: 

<'  Every  partial  or  private  law  which  directly  proposes  to  destroy  or 
affect  individual  rights,  or  does  the  same  thing  by  affording  remedies 
leading  to  similar  consequences,  is  unconstitutional  and  void.  Were 
this  otherwise,  odious  individuals  and  corporate  bodies  would  be  gov- 
erned by  one  rule,  and  the  mass  of  the  community  who  made  the  law  by 
another." 

The  Fourteenth  Amendment  forbids  any  State  to  "  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws." 
The  scope  of  this  prohibition  has  been  frequently  considered  by  this 
court. 

[After  quoting  from  Barbier  v.  Connolly,  113  U.  S.  27  [925],  and 
Gulf,  etc.,  R.  Co.  V.  Ellis,  165  U.  S.  150  [922/i],  the  opinion  continues:] 
But  while  recognizing  to  the  full  extent  the  impossibility  of  an  im- 
position of  duties  and  obligations  mathematically  equal  upon  all, 
and  also  recognizing  the  right  of  classification  of  industries  and  occu- 
pations, we  must  nevertheless  always  remember  that  the  equal  pro- 
tection of  the  laws  is  guaranteed,  and  that  such  equal  protection  is 
denied  when  upon  one  of  two  parties  engaged  in  the  same  kind  of 
business  and  under  the  same  conditions  burdens  are  cast  Avhich  are  not 
cast  upon  the  other.  There  can  be  no  pretence  that  a  stock-yard 
which  receives  99  head  of  cattle  per  day  a  year  is  not  doing  precisely 
the  same  business  as  one  receiving  101  head  of  cattle  per  day  each 
year.  It  is  the  same  business  in  all  its  essential  elements,  and  the 
only  difference  is  that  one  does  more  business  than  the  other.  But 
the  receipt  of  an  extra  two  head  of  cattle  per  day  does  not  change  the 
character  of  the  business.     If  once  the  door  is  opened  to  the  aflSrmauce 


1280  ADDITIONAL   CASES   AS   TO   DUE   PROCESS   OF   LAW. 

of  the  proposition  that  a  State  may  regulate  one  who  does  much  busi- 
ness, while  not  regulating  another  who  does  the  same  but  less  business 
then  all  signiticance  in  the  guaranty  of  the  equal  protection  of  the 
laws  is  lost,  and  the  door  is  opened  to  that  inequality  of  legislation 
which  Mr.  Justice  Catron  referred  to  in  the  quotation  above  made. 
This  statute  is  not  simply  legislation  which  in  its  indirect  results 
affects  different  individuals  or  corporations  differently,  nor  with  those 
in  which  a  classification  is  based  upon  inherent  differences  in  the  char- 
acter of  the  business,  but  is  a  positive  and  direct  discrimination  be- 
tween persons  engaged  in  the  same  class  of  business,  and  based  simply 
upon  the  quantity  of  business  which  each  may  do.  If  such  legislation 
does  not  deny  the  equal  protection  of  the  laws,  we  are  unable  to  per- 
ceive what  legislation  would.  We  think,  therefore,  that  the  principal 
of  the  decision  of  the  Supreme  Court  of  Kansas  in  State  v.  Haun,  snpra 
[61  Kan.  146],  is  not  only  sound,  but  is  controlling  in  this  case,  and 
that  the  statute  must  be  held  unconstitutional  as  in  conflict  with  the 
equal  protection  clause  of  the  Fourteenth  Amendment. 

Without  expressing  any  opinion  as  to  the  jurisdiction  of  the  court 
if  it  had  been  properly  and  seasonably  challenged,  we  think  the  true 
solution  of  this  matter  will  be  found  in  reversing  the  decree  upon  the 
merits,  and  directing  a  dismissal  of  the  suit  as  to  the  Attorney- 
General,  without  prejudice  to  any  other  suit  or  action. 


APPENDIX   D. 
ADDITIOXAL   CASES   RELATING    TO    CITIZENSHIP. 


UIs^ITED  STATES   v.   JU   TOY. 
198  U.  S.  253;  25  Sup.  Ct.  Rep.  644.     1905. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  case  comes  here  on  a  certificate  from  the  Circuit  Court  of  Ap- 
peals presenting  certain  questions  of  law.  It  appears  that  the  appel- 
lee, being  detained  by  the  master  of  the  Steamship  Doric  for  return 
to  China,  presented  a  petition  for  habeas  corpus  to  the  District  Court, 
alleging  that  he  was  a  native-born  citizen  of  the  United  States,  return- 
ing after  a  temporary  departure,  and  was  denied  permission  to  land 
by  the  collector  of  the  port  of  San  Francisco.  It  also  appears  from 
the  petition  that  he  took  an  appeal  from  the  denial,  and  that  the 
decision  was  affirmed  by  the  Secretary  of  Commerce  and  Labor.  No 
further  grounds  are  stated.  The  writ  issued,  and  the  United  States 
made  return,  and  answered,  showing  all  the  proceedings  before  the 
Department,  which  are  not  denied  to  have  been  in  regular  form;  and 
setting  forth  all  of  the  evidence  and  the  orders  made.  The  answer 
also  denied  the  allegations  of  the  petition.  Motions  to  dismiss  the 
writ  were  made  on  the  grounds  that  the  decision  of  the  Secretary  was 
conclusive,  and  that  no  abuse  of  authority  was  shown.  These  were 
denied,  and  the  District  Court  decided,  seemingly  on  new  evidence, 
subject  to  exceptions,  that  Ju  Toy  was  a  native-born  citizen  of  the 
United  States.  An  appeal  was  taken  to  the  Circuit  Court  of  Appeals, 
alleging  errors  the  nature  of  which  has  been  indicated.  Thereupon 
the  latter  court  certified  the  following  questions: 

"  First.  Should  a  District  Court  of  the  United  States  grant  a  writ 
of  habeas  corpus  in  behalf  of  a  person  of  Chinese  descent  being  held 
for  return  to  China  by  the  steamship  company  which  brought  him 
therefrom,  who,  having  recently  arrived  at  a  port  of  the  United 
States,  made  application  to  land  as  a  native-born  citizen  thereof, 
and  who,  after  examination  by  the  duly  authorized  immigration 
officers,  was  found  by  them  not  to  have  been  born  in  the  United 
States,  was  denied  admission,  and  ordered  deported,  whicli  finding 
and  action  upon  appeal  was  affirmed  by  the  Secretary  of  Commerce 
and  Labor,  when  the  foregoing  facts  appear  to  the  court,  and  the 
petition  for  the  writ  alleges  unlawful  detention  on  the  sole  ground 
that  petitioner  does  not  come  within  the  restrictions  of  the  Chinese 

81 


1282  ADDITIONAL    CASES    RELATING    TO    CITIZENSHIP. 

exclusion  acts,  because  born  in  and  a  citizen  of  the  United  States, 
and  does  not  allege  or  show  in  any  other  way  unlawful  action  or 
abuse  of  their  discretion  or  powers  by  the  immigration  officers  who 
excluded  him? 

"  Second.  In  a  habeas  corpus  proceeding  should  a  District  Court  of 
the  United  States  dismiss  the  writ,  or  should  it  direct  a  new  or 
further  hearing  upon  evidence  to  be  presented  where  the  writ  had 
been  granted  in  behalf  of  a  person  of  Chinese  descent  being  held  by 
the  steamship  company  for  return  to  China,  from  whence  it  brought 
him,  who  recently  arrived  from  that  country,  and  asked  permission 
to  land,  upon  the  ground  that  he  was  born  in  and  was  a  citizen  of  the 
United  States,  when  the  uncontradicted  return  and  answer  show  that 
such  person  was  granted  a  hearing  by  the  proper  immigration  officers, 
who  found  he  was  not  born  in  the  United  States,  that  his  application 
for  admission  was  considered  and  denied  by  such  officers,  and  that 
the  denial  was  affirmed  upon  appeal  to  the  Secretary  of  Commerce 
and  Labor,  and  where  nothing  more  appears  to  show  that  such  execu- 
tive officers  failed  to  grant  a  proper  hearing,  abused  their  discretion, 
or  acted  in  any  unlawful  or  improper  way  upon  the  case  presented  to 
them  for  determination  ? 

"Third.  In  a  habeas  corpus  proceeding  in  a  District  Court  of  the 
United  States,  instituted  in  behalf  of  a  person  of  Chinese  descent  be- 
ing held  for  return  to  China  by  the  steamship  company  which  recently 
brought  him  therefrom  to  a  port  of  the  United  States,  and  who 
applied  for  admission  therein  upon  the  ground  that  he  was  a  native- 
born  citizen  thereof,  but  who,  after  a  hearing,  the  lawfully  designated 
immigration  officers  found  was  not  born  therein,  and  to  whom  they 
denied  admission,  which  finding  and  denial,  upon  appeal  to  the  Secre- 
tary of  Commerce  and  Labor,  was  affirmed  —  should  the  court  treat 
the  finding  and  action  of  such  executive  officers  upon  the  question  of 
citizenship  and  other  questions  of  fact  as  having  been  made  by  a 
tribunal  authorized  to  decide  the  same,  and  as  final  and  conclusive 
unless  it  be  made  affirmatively  to  appear  that  such  officers,  in  the 
case  submitted  to  them,  abused  the  discretion  vested  in  them,  or,  in 
some  other  way,  in  hearing  and  determining  the  same,  committed 
prejudicial  error?" 

We  assume  in  what  we  have  to  say,  as  the  questions  assume,  that 
no  abuse  of  authority  of  any  kind  is  alleged.  That  being  out  of  the 
case,  the  first  of  them  is  answered  by  the  case  of  United  States  v. 
Sing  Tuck,  194  U.  S.  161,  170.  "  A  petition  for  habeas  corpus  ought 
not  to  be  entertained  unless  the  court  is  satisfied  that  the  petitioner 
can  make  out  at  least  2.  prima  facie  case."  This  petition  should  have 
been  denied  on  this  ground,  irrespective  of  what  more  we  have  to  say, 
because  it  alleged  nothing  except  citizenship.  It  disclosed  neither 
abuse  of  authority  nor  the  existence  of  evidence  not  laid  before  the 
Secretary.  It  did  not  even  set  forth  that  evidence,  or  allege  its 
effect.     But,  as  it  was  entertained,  and  the  District  Court  found  for 


UNITED   STATES   V.    JU   TOY.  1283 

the  petitioner,  it  would  be  a  severe  measure  to  order  the  petition  to 
be  dismissed  on  that  ground  now,  and  we  pass  on  to  further  con- 
siderations. 

The  broad  question  is  presented  whether  or  not  the  decision  of  the 
Secretary  of  Commerce  and  Labor  is  conclusive.  It  was  held  in 
United  States  v.  Sing  Tuck,  194  U.  S.  IGl,  167,  that  the  act  of  August 
18,  1894,  chap.  301,  §  1,  28  Stat.  372,  390,  purported  to  make  it  so, 
but  whether  the  statute  could  have  that  effect  constitutionally  was 
left  untouched,  except  by  a  reference  to  cases  where  an  opinion  al- 
ready had  been  expressed.  To  quote  the  latest  first,  in  The  Japanese 
Immigrant  Case  (Yamataya  v.  Fisher),  189  U.  S.  86,  97,  it  was  said: 
"That  Congress  may  exclude  aliens  of  a  particular  race  from  the 
United  States,  prescribe  the  terms  and  conditions  upon  which  certain 
classes  of  aliens  may  come  to  this  country,  establish  regulations  for 
sending  out  of  the  country  such  aliens  as  come  here  in  violation  of 
law,  and  commit  the  enforcement  of  such  provisions,  conditions,  and 
regulations  exclusively  to  executive  officers,  without  judicial  inter- 
vention, are  principles  firmly  established  by  the  decisions  of  tliis 
court."  See  also  Turner  v.  Williams,  194  U.  S.  279,  290,  291 ;  Chin 
Bak-  Kan  v.  United  States,  186  U.  S.  193,  200.  In  Fok  Young  Yo  v. 
United  States,  185  U.  S.  296,  304,  305,  it  was  held  that  the  decision 
of  the  collector  of  customs  on  the  right  of  transit  across  the  terri- 
tory of  the  United  States  was  conclusive,  and,  still  more  to  the  point, 
in  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  where  the  peti- 
tioner for  habeas  corpus  alleged  facts  which,  if  true,  gave  him  a  right 
to  enter  and  remain  in  the  country,  it  was  held  that  the  decision  of 
the  collector  was  final  as  to  whether  or  not  he  belonged  to  the  priv- 
ileged class. 

It  is  true  that  it  may  be  argued  that  these  cases  are  not  directly 
conclusive  of  the  point  now  under  decision.  It  may  be  said  that  the 
parties  concerned  were  aliens,  and  that  although  they  alleged  abso- 
lute rights,  and  facts  which  it  was  contended  went  to  the  jurisdiction 
of  the  officer  making  the  decision,  still  their  rights  were  only  treaty 
or  statutory  rights,  and  therefore  were  subject  to  the  implied  qualifi- 
cation imposed  by  the  later  statute,  which  made  the  decision  of  the 
collector  with  regard  to  them  final.  The  meaning  of  the  cases,  and 
the  language  which  we  have  quoted,  is  not  satisfied  by  so  narrow  an 
interpretation,  but  we  do  not  delay  upon  them.     They  can  be  read. 

It  is  established,  as  we  have  said,  that  the  act  purports  to  make 
the  decision  of  the  Department  final,  whatever  the  ground  on  which 
the  right  to  enter  the  country  is  claimed  —  as  well  when  it  is  citizen- 
ship as  when  it  is  domicil,  and  the  belonging  to  a  class  excepted 
from  the  exclusion  acts.  United  States  v.  Sing  Tuck,  194  U.  S. 
161,  167;  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  546, 
547.  It  also  is  established  by  the  former  case  and  others  which 
it  cites,  that  the  relevant  portion  of  the  act  of  August  18,  1894, 
chap.  301,  is  not  void  as  a  whole.     The  statute  has  been  upheld 


1284  ADDITIONAL   CASES   RELATING    TO    CITIZENSHIP. 

and  enforced.  But  the  relevant  portion  being  a  single  section,  ac- 
complishing all  its  results  by  the  same  general  words,  must  be  valid 
as  to  all  that  it  embraces,  or  altogether  void.  An  exception  of  a  class 
constitutionally  exempted  cannot  be  read  into  those  general  words 
merely  for  the  purpose  of  saving  what  remains.  That  has  been 
decided  over  and  over  again.  United  States  v.  -Reese,  92  U.  S.  214, 
221 ;  Trade-Mark  Cases,  100  U.  S.  82,  98,  99;  Allen  v.  Louisiana,  103 
U.  S.  80,  84;  United  States  v.  Harris,  106  U.  S.  629,  641,  642;  Vir- 
ginia Coupon  Cases,  114  U.  S.  269,  305  [469/i] ;  Baldwin  v.  Franks, 
120  U.  S.  678,  685-689 ;  Smiley  v.  Kansas,  196  U.  S.  447,  455.  It 
necessarily  follows  that  when  such  words  are  sustained,  they  are 
sustained  to  their  full  extent. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer  open 
to  discuss  the  question  propounded  as  a  new  one.  Therefore  we  do 
not  analyze  the  nature  of  the  right  of  a  person  presenting  himself  at 
the  frontier  for  admission.  In  re  Ross,  140  U.  S.  453,  464.  But  it  is 
not  improper  to  add  a  few  words.  The  petitioner,  although  physi- 
cally within  our  boundaries,  is  to  be  regarded  as  if  he  had  been 
stopped  at  the  limit  of  our  jurisdiction,  and  kept  there  while  his  right 
to  enter  was  under  debate.  If,  for  the  purpose  of  argument,  we 
assume  that  the  Fifth  Amendment  applies  to  him,  and  that  to  deny 
entrance  to  a  citizen  is  to  deprive  him  of  liberty,  we  nevertheless  are 
of  opinion  that  with  regard  to  him  due  process  of  law  does  not  re- 
quire judicial  trial.  That  is  the  result  of  the  cases  which  we  have 
cited,  and  the  almost  necessary  result  of  the  power  of  Congress  to 
pass  exclusion  laws.  That  the  decision  may  be  intrusted  to  an  exec- 
utive officer,  and  that  his  decision  is  due  process  of  law,  was  affirmed 
and  explained  in  Nishimura  Ekiu  v.  United  States,  142  U.  S.  651, 
660,  and  in  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  713 
[567?t],  before  the  authorities  to  which  we  already  have  referred. 
It  is  unnecessary  to  repeat  the  often-quoted  remarks  of  Mr.  Justice 
Curtis,  speaking  for  the  whole  court  in  Murray's  Lessee  v.  Hoboken 
Land  &  Improv.  Co.,  18  How.  272,  280  [895],  to  show  that  the  re- 
quirement of  a  judicial  trial  does  not  prevail  in  every  case.  Lera 
Moon  Sing  v.  United  States,  158  U.  S.  538,  546,  547;  Japanese  Im- 
migrant Case,  189  U.  S.  86,  100;  Public  Clearing  House  v.  Coyne, 
194  U.  S.  497,  508,  509  [479/0- 

We  are  of  opinion  that  the  first  question  should  be  answered,  no; 
that  the  third  question  should  be  answered,  yes,  with  the  result  that 
the  second  question  should  be  answered  that  the  writ  should  be  dis- 
missed, as  it  should  have  been  dismissed  in  this  case. 

It  loill  he  so  certified?- 

^  Mu  Justice  Brewer,  with  whom  Mr.  Justice  Peckham  concurred,  rendered 
a  dissenting  opinion.     Mb.  Justice  Day  also  dissented. 


INDEX 


INDEX 


[the  references  are  to  pages.] 


Acquisition    of    territory    by    treaty, 

1119-1251. 
Administration  on  estate  of  absentee, 

1038. 
Admiralty  jurisdiction,  635-672. 

as  to  Great  Lakes,  511. 
Admission  of  new  States,  838-843. 
Adverse   possession   under   statute   of 

limitations,  1044. 
Agents  of  U.  S.  or  States,  suits  against, 

^  720-733. 
Aliens,  rights  of  to  inherit,  72. 
naturalization  of,  431,  972. 
exclusion  of,  565. 
rights  of  under  treaties,  581-589. 
14th  amendment  applies  to,  919. 
children  of,  whether  citizens,  964. 
may  be  voters,  978. 
Ambassadors,  cases  affecting,  628-635, 

688. 
Amendments  to  U.  S.  Constitution,  ap- 
plicable  only   to   Federal   gov- 
ernment, 14,  993. 
nature  of,  14-39. 
Annexation    of    territory    to    munici- 
pality, 117-124. 
to  United  States,  1119-1259. 
Appeals  from  commissioners  of  patents, 

125. 
Appellate  jurisdiction  of  SupremeCourt, 

746-768. 
Appointment  of  officers  by  President, 

607-616. 
Assembly,  right  of,  35,  979. 
Assessment  for  purposes  of  taxation, 
205-221. 
of  railroad,  telegraph,  and  express 
companies,  353. 
Assessments  for  improvements,  valid- 
ity of,  215. 
Attorneys,     rights    of    arising    under 
license,  579. 
proceedings  to  disbar,  903. 


Bank  of  U.  S.,  authority  to  incorporate, 
1. 

Bank  bills,  obligation  of  State  to  re- 
ceive in  payment  of  debts,  998. 

Bankruptcy,  436-441. 

Banks,  taxation  of,  170-178. 

Banks,  taxation  of  circulation,  222. 
currency  of,  not  bills  of  credit,  459. 
incorporation  of  by  U.  S.,  620. 

Barbers,  regulation  of,  932. 

Bearing  arms,  right  of,  979. 

Benefits  considered,  in  exercising  emi- 
nent domain,  1059. 

Bible,  reading  of  in  schools,  879. 

Bill  of  Rights  in  Federal  Constitution, 
15. 

Bills  of  credit,  459-470. 

Bills  of  lading,  stamp  tax  upon,  404. 

Birth,  citizenship  by,  964,  976. 

Blockade,  lawful  as  against  rebellion, 
517. 

Bonds  held  by  non-residents,  taxation 
of,  136,  1002. 

Books  and  papers,  production  of,  886. 

Boundaries,  national,  how  determined, 
678. 

Boundaries  of  States,  jurisdiction  to  de- 
termine, 678. 

Boundary  lines  of  Territories,  jurisdic- 
tion as  to,  677. 
Bridge,  franchise  for,  condemnation  for 

public  use,  1052. 
Bridges  over  navigable  rivers,  282-290. 

Canals,    admiralty    jurisdiction    over, 

653. 
Carriers,  regulation  of,  357,  363-378. 
State  power  to  fix  rates  for,  364. 
regulation  of  charges  of,  946-956, 

1019. 
State  taxation  of,  1114. 
see  also  Commerce. 
Ceded  districts,  522-540. 


1288 


INDEX. 
[The  References  are  to  Pages.] 


Charters  of  corporations  deemed  con- 
tracts, 1006-1023. 
of   public   corporations,    not   con- 
tracts, 1022. 
Checks  and  balances  in  government, 

815-S26. 
Chinese,  naturalization  of,  434. 
exclusion  of  562,  971,  1281. 
expulsion  of,  567. 
14th  amendment  applies  to,  919. 
Chinese,  citizenship  of  by  birth,  964. 
Citizens  of  the  U.  S.,  privileges  and  im- 
munities of,   18,  25,  974,  1251, 
1256,   12S3. 
of  different  States,   controversies 

between,  734-745. 
of  States,  privileges  and  immuni- 
ties of,  855-866. 
immunities  of  with  reference  to  ex- 
tradition, 876. 
women  may  be,  975. 
Citizenship  under  14th  amendment,  25. 
in  U.  S.  and  in  State,  32. 
privileges  of  not  extended  to  aliens, 

73. 
in  State,  425. 

averment  and  proof  of,  634. 
diverse,  as  ground  of  jurisdiction, 

734-745. 
in  U.  S.,  964-974,  1122,  1138. 
Civil  rights,  protection  of,  36,  561. 

guaranties  of,  879-963. 
Coin,  contracts  payable  in,  454. 

regulation  of  by  Congress,  458. 
Coining  money,  power  of,  475. 
Collisions,  admiralty  jurisdiction  over, 

653. 
Combinations  in  restraint  of  trade,  263, 

1081-1118. 
Commerce,  regulation  of  by  Congress, 
235-422,  1071-1118. 
what  constitutes,  238. 
taxation    of    vessels    engaged    in, 

420. 
power  of  regulating  extends  to  con- 
demning right  of  way  for  rail- 
way, 1064. 
with  annexed  territory,   taxation 
of,  1119-1244. 
Commercial  law,  recognized  in  Federal 

courts,  796-807. 
Common  law  of  U.  S.,  483. 

in  Federal  jurisprudence,  812. 
in  colonies  and  States,  958. 
Compensation  for  property  taken  for 
public  use,  benefits  considered, 
1059. 


Compensation  for  property  taken  for 
public  use,  in  case  of  eminent 
domain,  when  to  be  paid,  1065. 
Condemnation  of  property  for  public 

use,  1050-1069. 
Conditions  in  pardons,  569. 
Conflict  of  laws,  as  to  discharge  in  bank- 
ruptcy, 438. 
as  between  States,  844-877. 
Congress,  powers  of  as  to  taxation,  136- 
234. 
regulation  of  commerce  by,  235- 

403. 
powers  of  as  to  naturalization,  423. 
bankruptcy,  436. 
the  currency,  442. 
bills  of  credit,  459. 
Congress,  powers  of  as  to  weights  and 
measures,  471. 
counterfeiting,  474. 
post-oflfices    and    post-roads, 

478. 
copyrights  and  patents,  480. 
piracies,  felonies,  etc.,  501. 
war,  515. 

ceded  districts,  522. 
treason,  541. 
implied  powers  of,  548-567,  1067. 
restrictions  on  powers  of,  568. 
power  of  to  grant  amnesty,  576. 
to  annex  and  control  territory, 

1119-1259. 
to  revise  territorial  laws,  830- 
831. 
Conspiracy  against  rights   of   citizen- 
ship, punishment  of,  31,  557. 
Constitution,  construction  of  by  courts, 
,  819-821,  1067. 
of  United  States,  xvii. 
nature  of,  1-39. 
relation  of  States  to,  40-78. 
adoption  of,  3. 
limitations  in,  15. 
cases  arising  under,  617-627. 
liberal  construction,  237. 
grants  limited  powers,  816. 
extension    of.  to    Territories, 

831-837,  1119-1259. 
extends  to 'District  of  Colum- 
bia, 957. 
Constitutionality  of  statute,  power  of 

courts  to  pass  upon,  815-826. 
Constitutions  paramount  to  statutes, 

817. 
Construction  of  Federal  authority  un- 
der Constitution,  10. 
of  Federal  Constitution,  237. 


INDEX. 
[The  References  are  to  Pages.] 


12S9 


Construction  of  Federal  authority  un- 
der Constitution,  of  State  stat- 
utes followed  in  Federal  courts, 
789-811. 
of  Constitution,  by  courts,   819- 
821. 
Consuls,  cases  affecting,  628-635.  688. 
Contempt,   implied   power  to  punish, 

548. 
Contract,  freedom  of,  929-933,  1261- 
1277. 
change  of  remedies  affecting,  1026- 

1029. 
judgment    for   tort    not    deemed, 
1018. 
Contracts,  discharge  of  obligations  of 
in  bankruptcy,  438. 
obligation    of,    not    impaired    by 

legal  tender  acts,  442. 
payable  in  coin,  454. 
obligation  of,  impaired  by  State 

decisions,  802. 
impairment  of  obligation  of,  998- 
-      1029. 

implied,  impairment  of,  1005. 

Controversies   to  which  the   U.  S.    or 

State  is  a  party,  673-719. 

between  two  or  more  States,  693. 

Conventions,  constitutional    authority 

of,  3. 
Conveyances,  legalizing,  1041-1043 
Copyrights  and  patents,  480-500. 
Corporation,    municipal,    see    Murdci- 

pdlity. 
Corporations,  authority  of  Congress  to 
create,  6. 
Federal,  State  taxation  of,  162. 
taxation  of  on  Federal  franchise, 

162-169. 
consolidation  of  State  regulation, 

263. 
Federal,  suits  by  or  against,  620- 

623. 
citizenship  of,  737-746. 
removal  of  suits  by,  774. 
of  another  State,  regulation  of,  774. 
privileges  of  in  another  State,  855- 

866. 
protected    by    14th    amendment, 

923,  954. 
charters     of     deemed     contracts, 

1006-1023. 
franchises  of  may  be  taken  for  pub- 
lic use,  1052. 
public  have  no  vested  rights,  1022. 
taxation  of  foreign-held  bonds  bj', 
136. 


Corporations,    engaged    in    interstate 

commerce,  regulation  of,  1093. 
Counterfeiting,  474-477. 
Counties  on  seashore,  jurisdiction  of, 

656. 
Coupon  cases,  1001. 
Courts,  legislative  control  over  judg- 
ments of,  79. 
Courts  of  U.  S.,  removal  of  criminal 
prosecutions  to,  51. 
jurisdiction  of  as  to  boundaries, 

677. 
jurisdiction    conferred    upon    by 

Constitution,  617-745. 
exercise  of  jurisdiction  in,  746-788. 
jurisdiction   of   in   habeas   corpus, 

777-781. 
jui-isdiction  of  by  mandamus,  787. 
dutv  of  to  follow  State  law,  789- 

811. 
administering  State  law,  789-81 1. 
common  law  in,  812-814. 
Crime,  protection  to  persons  accused  of, 

9S0. 
Crimes,  when  punishable  by  both  State 
and  Federal  government,  474. 
what  deemed  grounds  of  extradi- 
tion, 869. 
indictment  for  not  essential  to  due 
process  of  law,  905. 
Criminal  procedure,  regulation  of,  980, 

1245-1259. 
Criminal   prosecutions,   removal   of   to 

Federal  court,  51. 
Curative  acts,  1041-1043. 
Currency,  taxation  of,  222. 
regulation  of,  442-458. 
of  State  banks,  not  bills  of  credit, 
459. 
Customs  duties  as  to  goods  brought 
from  or  taken  to  annexed  terri- 
tory, 1119-1244. 

Dams  in  navigable  rivers,  control  over, 
273,  297. 
condemning  property  for,  1050. 

Deeds,  legalizing  acknowledgment  of, 
1041-1043. 

Delegation  of  power  to  Federal  gov- 
ernment, 4. 
of  legislative  authority,  88-102. 

Departments  of  government,  73-135. 

Deserters  from  merchant  vessels,  pun- 
ishment of,  894. 

Diplomatic  relations,  power  of  Presi- 
dent as  to,  590. 

Direct  taxes,  223. 


1290 


INDEX. 
[The  Referencea  are  to  Pages.] 


Disbarment   of   attorney,    proceedings 

for,  903. 
Discharge  in  bankruptcy,  effect  of,  438. 
Discrimination    in    police    regulations, 

919. 
District    ceded   to  U.  S.,    jurisdiction 

over,  522. 
District  of  Columbia,  government  of, 
523. 
whether  a  State,  735,  1128. 
legislative  powers  within,  957. 
Diverse  citizenship  as  ground  of  juris- 
diction, 734-7.45. 
Divorce,  due  faith  and  credit  to  decree, 

854. 
Dorr  Rebellion,  595. 
Drains,  taxation  for,  203. 
Drummers,  taxation  of,  313-328. 
Due  process  of  law,  865,  895-916,  929- 
933,  1261-1277,  1283. 
guaranty  of,  30. 
in  tax  proceedings,  205,  213. 
special  assessments,  215. 
jury  trial,  987-989,  1244,  1255. 
when    judgment    deemed,    1032- 

1041. 
removing  bar  of  statute  of  limita- 
tions, 1045. 
Dwelling,  security  of,  885-890. 
Dj-ing    declarations,    admissibility    of, 
996. 

Eight-hour  law,  validity  of,  929. 
Elections,  regulation  of  by  Congress,  56. 
appointment    of    supervisors    by 

courts,  113. 
rights  of  women,  974. 
Elective  franchise,  974. 
Electric  railway,  on  highway,  1058. 
Eleemosvnary  corporation,  charter  of, 

1007. 
Elevators,  regulation  of  charges  of,  946. 
Eleventh  amendment,  effect  of,  704. 
Eminent  domain,.  1050-1070. 

limitations  on  exercise  of,  14. 
taxing    property    for    special    im- 
provement, 218. 
Employees  of  U.   S.   contributing   for 

political  purposes,  554. 
Enlistment  in  military  service,  review 

of  by  State  courts,  43. 
Equal  protection  of  the  laws,  30,  866, 
917-924,  1279. 
in  tax  proceedings,  205. 
in  taxation  of  railroad  and  express 
companies,  353. 
Equality,  protection  of,  36,  917-924. 


Equity  jurisdiction  as  to  State  bounda- 

ries,  684. 
Estate  of  person  not  deceased,  admin- 
istration of,  1038. 
Evidence  of  legislative  action,  130. 
of  foreign  laws,  852. 
notice    to    require    production    of 

books  and  papers,  885. 
criminating,  990. 

in  criminal  prosecutions,  right  to 
be    confronted   with   witnesses, 
995. 
Ex  post  facto  law,  980-984. 

imposition  of  test  oath,  578. 
Exclusive  privileges,  grant  of,  1018. 
Executive,  power  of  to  suspend  statute, 
96. 
action  against,  102-113. 
powers  of  as  to  pardons,  569-580. 
participation  of  in  making  treaties, 

581-589. 
authority  of  as  to  diplomatic  rela- 
tions   and    political    questions, 
590-606. 
appointment  and  removal  of  offi- 
cers by,  607-616. 
action  of  in  extradition  cases,  867- 
877. 
Executive  Department,  102-112. 
Executive  powers  not  to  be  given  to 

judges,  113-135. 
Exemption  from  taxation,  1003,  1012. 
Exemptions,   increase   of,   as  affecting 

validity  of  contracts,  1029. 
Exports,  tax  on,  402-408,  1119-1244. 
Express  companies,  taxation  of,   328, 

349-354. 
Expulsion  of  Chinese,  567. 
Extradition,  867-877. 

review  of  by  habeas  corpus,  777. 

Faith  and  credit  shall  be  gi^^en  judg- 
ments  of   another  State,    844- 
854. 
Federal  courts,  see  Courts  of  U.  S. 
Federal  government,  relation  of  States 
to,  40-78. 
supremacy  of,  156. 
exercise  of  power  of  eminent  do- 
main by,  1061-1069. 
power  of,  as  to  annexation  of  ter- 
ritory, 1119-1259. 
Federal  judge,  protection  of,  65. 
Felonies  on  the  high  seas,  501-514. 

power  of  Congress  to  punish,  504. 
Fifth  amendment,  889,  914,  986,  990, 
1283. 


First  amendment,  34. 

Fisheries,  State  control  over,  655,  861. 

Foreign  commerce,   what  constitutes, 

256. 
Foreign-held  bonds,  taxation  of,  136. 
Foreign  territory,  annexation  of,  1119- 

1259. 
Foreigners,  exclusion  of,  565. 

rights  of  under  treaties,  581-5S9. 
14th  amendment  applies  to,  919. 
children  of,  whether  citizens,  964. 
naturalization  of,  972. 
Fourteenth  amendment,  19,  23,  36,  37, 
865,  915,  943,  946,  954,  964-973, 
988, 1031,  1034,  1038,  1047,  1261 
1277,  1279. 
Fourth  amendment,  844-866,  887. 
Franchises,    Federal,    State    taxation 
upon,  162-169. 
removal  of  suits  affecting,  624. 
legislative  grant  of,  1011. 
nature  of,  1013. 
exclusive  grant  of,  1018. 
taking  of,  for  public  use,  1052. 
Freedom  of  contract,  929-933,   1261- 

1277. 
Fugitives  from  justice,  extradition  of, 
867-877. 

Gold  coin,  contracts  payable  in,  456. 
Government,  nature  of,  3. 
departments  of,  79-135. 
Federal,  supremacy  of,  4,  174. 

limited  powers  of,  816. 
see  also  Federal  Government. 
Government  agencies,  taxation  of,  153- 

188. 
Government  of  Territories,  827-837. 
Governments  of  U.  S.  and  States,  re- 
spective powers  of,  30. 
Governor,  control  of  by  Judicial  De- 
partment, 105. 
action  of  in  extradition  cases,  867- 

877. 
see  also  Executive. 
Grand  jury,  indictment  by,  not  essen- 
tial to  due  process  of  law,  905. 
presentment  by  in  Federal  courts, 
when  necessary,  985. 
Great  Lakes,  included  in  term  "high 

seas,"  505. 
Greenbacks,  taxation  of  by  States,  175. 
Gross  receipts,  taxation  of,  342. 
Guaranties  of  civil  rights,  879-963. 

of  life  and  liberty,  895-954. 
Guaranty   of   republican   government, 
878. 


INDEX.  1291 

[The  References  are  to  Page.s.] 

Habeas  corpus  in  State  court  against 
Federal  officer,  43. 
in  Federal  courts  as  against  State 

officers,  67. 
jurisdiction  of  Supreme  Court  in, 

768. 
in  Federal  courts,  777-781. 
in  extradition  cases,  868. 
Hawaii,  annexation  of,  1244. 
High  seas,  commerce  upon,  State  regu- 
lation, 258. 
meaning  of  term,  505. 
Highway,  right  of  way  for  telegraph 
line  over,  1055. 
use  of  for  electric  railway,  1058. 
Hours  of  labor,  regulation  of,  929. 
House  of  Representatives,  power  of  to 
punish  for  contempt,  548. 


Immigration,  State  taxation  upon,  244. 
Impairment  of  obligation  of  contracts, 

998-1029. 
Implied  powers  under  U.  S.  Constitu- 
tion, 54. 
of  Congress,  548-567,  1067. 
Importer,  right  to  sell,  308. 
Imports,  State  tax  upon,  303,  334,  404- 

408. 
from   or  into   annexed   territory, 

taxation  of  by  Congress,  1119- 

1244. 
Incomes,  direct  taxes  upon,  233. 
Incorporation  of  annexed  territorj'  into 

United  States,  1119-1259. 
Indians,  citizenship  of,  969. 
Indian  Territory,  condemnation  of  right 

of  way  for  railway  over,  1063. 
Indian    tribes,    commerce    with,    270, 

1064. 
Indictment,  not  essential  to  due  process 

of  law,  905. 
in  Federal  courts,  when  necessary, 

985. 
Infamous  crime,  what  constitutes,  985. 
Information,  in  criminal  proceedings, 

905,  985. 
Insolvent  laws,  effect  of,  438. 
Inspection  laws,  406. 
Instructions  upon  the  evidence  in  Fed- 
eral courts,  963. 
Insurrection,  may  constitute  war,  516. 
authority  of  executive  as  to,  519, 

602. 
Interest,  rate  of  on  judgments,  1023. 
Internal  improvements,   taxation  for, 

200. 
Interstate  commerce,  see  Commerce. 


1292 


INDEX. 
[The  References  are  to  Pages.] 


Interstate  commerce  commission,  crim- 
inating testimony  before,  990. 

Intoxicating  liquors,  sale  of  to  Indians, 
270. 
regulating  sale  of,  378-395,  938- 

945. 
license  to  sell  or  manufacture  not  a 
vested  right,  1014. 

Invasion,  power  of  President  as  to,  519. 

Irrigation,  power  of  Congress  as  to,  312. 

Journals  of  legislature  as  evidence,  130. 
Judges,  not  to  be  given  executive  or 
legislative  powers,  113-135. 
of  Federal  courts,   protection  of, 
66. 
Judgment,  effect  of  in  another  State, 
854. 
in  rem,  validity  of,  1032. 
Judgments  of  State,  faith  and  credit  to 
be  given   to,  S44-S54. 
of  foreign  State,  how  proved,  852. 
rate  of  interest  on,  1023. 
not  contracts,  1025. 
for  tort,  not  protected,  1047. 
Judicial    decisions,    impairing    obliga- 
tions of  contracts,  802. 
Judicial   Department,  113-135. 

cannot  control  executive,  102-113. 
grant  of  jurisdiction  to,  617-745. 
exercise  of  jurisdiction  by,  746-788. 
following  law  of  State,  789-811. 
common  law  administered  by,  812- 

814. 
power  of  to  pass  on  constitutional- 
ity of  statutes,  815-826. 
Judicial  notice  of  laws  of  other  States, 

852. 
Judicial  power,  where  vested,  79,  750, 
1133. 
grant  of  by  Congress  to  State  courts 
or  officers,  782. 
Judicial  procedure  in  District  of  Colum- 
bia, 957. 
Judicial    restraints   on   legislative   en- 
croachments, 815-826. 
Jurisdiction  of  State  court  over  Federal 
officer,  44. 
concurrent  in  U.  S.  and  State,  63. 
by  habeas  corpus,  67. 
to  revise  judgments  of  courts,  79. 
in  action  against  executive,  102- 

113. 
of  courts  to  control  action  of  legis- 
lative officers,  133. 
in  tax  proceedings,  205. 
in  bankruptcy  proceedings,  437. 


Jurisdiction  of  State  courts  as  to  patent 
rights,  498. 
of  State  as  to  crime  on  navigable 

water,  512. 
over  ceded  districts,  522-540. 
to  punish  contempts,  548. 
of    United    States     over    guano 
islands,  590. 
over  territory  outside  states, 
1122. 
as  to  political  questions,  595. 
constitutional  grant  of,  617-745. 
exercise  of  in  I'ederal  courts,  746- 

788. 
as  affecting  validity  of  judgment, 

849. 
in  special  proceedings,  903. 
in  rem,  1032. 

of  administration  on  estate  of  ab- 
sentee, 10-38. 
of  Circuit  Courts  over  suits  to  re- 
cover duties  paid,  1119. 
Jury  trial,  956-963,  1244,  1255. 
Jury  trial   in   criminal   cases,   plea   of 
guilty,  987-989. 
waiver  of,  988. 
in  Hawaii,  1244. 
in  Philippine  Islands,  1252. 
Justices  of  the  peace,  jury  trial  in  cases 
before,  962. 

Labor,   regulation    of   hours    of,   929- 

933,  1260-1277. 
Lakes    included    within    term    "high 

seas,"  505. 
Land  of  U.  S.,  exempt  from  taxation, 

178. 
Laundry  ordinances,  validity  of,  917- 

928. 
Law  merchant,  recognized  in  Federal 

courts,  796-814. 
Law  of  the  land,  896,  90S,  934,  937 ;  see 

also  Due  Process  of  Law. 
Laws  of  foreign  State,  how  proved,  852. 
of  the  U.  S.,  cases  arising  under, 

617-628. 
Legal  tender,  for  taxes,  40. 

contract  for  payment  in  coin,  454. 
Legal  tender  act,  constitutionality  of, 

442. 
Legal    tender    notes,    taxation    of   by 

States,  175. 
Legalizing  acts,  1041-1043. 
Legislation     impairing     obligation     of 

contracts,  998-1029. 
Legislative  bounties  or  exemptions,  re- 
peal of,  1003. 


INDEX. 
[The  References  are  to  Pages.] 


1293 


Legislative  contracts,  1003,  1006,  1011. 
Legislative   control   over  Judicial   De- 
partment, 79. 
Legislative  Department,  79-101,  136- 

568. 
Legislative  grants,  not  in  limitation  of 

the  police  powor,  1014^1018. 
Legislative  pardons,  993. 
Legislative  power,  where  vested,  88,  97. 

review  of  by  courts,  815-826. 
Letters  of  administration  on  estate  of 

person  not  deceased,  1038. 
Levying  war,  as  constituting  treason, 

541. 
Liberty,  religious,  879-884. 
guaranties  of,  895-954. 
License  for  navigation.  State  regula- 
tion, 290. 
for  sale  of  liquors,  384. 
Liens  on  vessels,  enforcement  of,  664- 

673. 
Life,  guaranties  of,  895-954. 
Limitation   of  actions,   change  in,   as 
"    affecting  validity  of  contracts, 

1029. 
removal  of  by  legislation,  1044. 
Limitations  in  P''ed3ral  Constitution,  15. 
on  powers  of  Federal  government, 

12. 
on  powers  of  government,  implied, 

192. 
on  powers  of  Congress,  568. 
Liquor  laws,  validity  of,  378-395. 
Liquors,  sale  of  to  Indians,  270. 
Liquors,  police   regulation   of   sale   of, 
938-945. 
license  to  manufacture  not  vested 
right,  1014. 
Literary  property,  480. 
Loans,  public  for  private  benefit,  189- 

204. 
Local    law    administered    by    Federal 

courts,  789-811. 
Lotteries,  postal  privileges  denied  to, 
478. 
regulation  of,  1016. 
Lottery  tickets  as  subject  of  interstate 

commerce,  1071. 
Louisiana  purchase,  annexation  of  ter- 
ritory by,  1122,  1175. 

Mails,  regulation  of,  478. 
Mandamus,   against  executive  officer, 
102-113. 

to  legislative  officers,  133. 

to  executive  officer  of  U.  S.,  767. 

in  Federal  courts,  787. 


Manufactories,  exemption  of,  from  tax- 
ation, 1004. 

Manufacture  of  liquors,  police  regula- 
tion of,  938-945. 

Mariners'  wages,  suits  for  in  admiralty, 
669. 

Marines,  enforcement  of  contracts  of, 
891. 

Maritime  jurisdiction,  635-672. 

Maritime  liens,   enforcement  of,   664- 
673. 

Married  women,  legalizing  conveyances 
of,  1041. 

Marshals,  suits  against,  626. 

Meat  inspection,  373. 

Medicine,  practice  of,  regulated,  934. 

Military  commissions,  jurisdiction   of, 
764. 

Military  reservations,  jurisdiction  over, 
538. 

Militia,  power  of  President  to  call  out, 
519. 

Mill  dams,   condemning  property  for, 
1050. 

Ministerial  action  of  executive,  whether 
courts  can  control,  102. 

Monopolies,  grant  of,  19,  lOlS. 
what  constitute,  264. 
suppression  of,  1081-1118. 

Mortgages,  held  by  non-residents,  taxa- 
tion of,  136,  146. 

Municipal  bonds  owned  by  non-resi- 
dents, taxation  of,  1002. 

Municipal  corporations  have  no  vested 
rights,  1022. 
legalizing  proceedings  of,  1043. 

Municipalities,   change  of  boundaries, 
93. 
power   to    incorporate    vested    in 

courts,  117-124. 
exempt  from  Federal  taxation,  158. 
taxation  of,   for  public  purposes, 

189-205. 
annexation  of  property  to,  for  tax- 
ation, 211. 
special  assessments  by,  21.5-221. 

Municipality,  District  of  Columbia  con- 
stitutes, 523. 


National  banks,  authority  of  U.  S.  over, 

76. 
National  common  law,  812. 
Natural  born  citizens,  964. 
Naturalization,  423-435. 

in  case  of  Chine.se,  972. 

citizenship  by,  976. 


1294 


INDEX. 

[The  References  are  to  Pages.] 


Navigable    rivers  in    Northwest  terri- 
tory, 289. 
State  control  of,  297. 

Navigable  waters,  what  constitute,  260. 
crimes  committed  upon,  511. 
admiralty  jurisdiction  over,   649- 
655. 

Navigation  on  high  seas,  regulation  of 
by  States,  258. 

Non-enumerated   powers  of  Congress, 
548-567. 

Non-resident  owners  of  bonds,  taxation 
of,  1002. 

Non-residents,  judgments  against,  1032. 

Northwest  territorv,  effect  of  ordinance, 
843. 

Notes,  given  for  patent  rights,  495. 

Notice  in  tax  proceedings,  205. 

Obligation  of  contracts,  impairment  of, 
802,  998-1029. 

Office,  right  to,  1005. 

Officers,  appointment  and  removal  of, 
607-616. 
of  U.   S.   or  State,  suits  against, 

720-733. 
liability  of  in  enforcement  of  un- 
constitutional statute,  822-826. 

Oleomargarine,   regulation   of   sale   of, 
395. 

Ordinance  of  1787,  effect  of,  843,  1173. 

Original  packages,  308. 

Papers,  security  of,  885-890. 
Pardons,  569-580. 

conditional,  569. 

by  legislative  act,  993. 
Parliament,   power  of  to  impair  obli- 
gation of  contracts,  1008. 
Passengers,  State  tax  upon,  244. 
Patent  rights,  notes  given  for,  495. 
Patents,  480-500. 

judicial  authority  as  to  issuance  of, 
125. 
Peace  of  the  U.  S.,  protection  of,  66. 
Peddlers,  State  taxation  of,  313-328. 
People,  authority  of,  3. 
Person,  security  of,  885-890. 
Petition,  right  of,  35. 
Philippine  Islands,  annexation  of,  1252. 
Physicians,  regulation  of  practice,  934. 
Pilotage,  State  regulation  of,  275. 
Piracies,  501-514. 

power  of  Congress  to  punish,  501. 
Police  power,   nature  and   extent   of, 
925-955,  1260-1277. 


Police  Power,  not  abrogated  by  corpo- 
rate charter,  1014-1018. 
of  States  as  to  immigration,  249. 
as  to  commerce,  272,  319,  331. 
as  to  patented  articles,  491. 
Police  regulation,  uniformity  of,  917. 
as  to  hours  of  labor,  929-933,  1261- 
1277. 
Political  privileges,  964-979. 
Political  questions,  executive  power  as 
to,  590. 
executive  authority  as  to,  595. 
as  to  boundaries,  678. 
Polygamy,  punishment  for,  883. 
Porto  Rico,  acquisition  of,  1119-1244. 
Post-offices  and  post-roads,  478-480. 
Powers,  implied,  4. 

judicial,  nature  of,  80. 
President,  power  of  to  suspend  statute, 
96. 
action  against,  102. 
power  of  to  call  out  militia,  519. 
reprieves   and    pardons  by,    569- 

580. 
power  of  as  to  treaties,  581-589. 
control  of  diplomatic  relations  and 
political  questions  by,  590-606. 
appointment  and  removal  of  offi- 
cers by,  607-616. 
Press,  freedom  of,  479. 
Private  property,  taking  of  for  public 

use,  see  Eminent  Domain. 

Privileges  and  immunities  of  citizens  6f 

the  U.  S.,  18,  25,  974,  1251. 

of  citizens  of  States,  855-866. 

Prizes,  jurisdiction  as  to,  515. 

Probate  proceedings  as  to  person  not 

dead,  1038. 
Procedure  in  Federal  courts  not  cov- 
ered by  State  law,  963. 
changes  in,  whether  ex  post  facto, 

984. 
changes  in,  whether  impairment  of 
contract  rights,  1026-1029. 
Proceedings  in  rem  in  admiralty,  664. 

in  personam  in  admiralty,  669. 
Process,  service  of,  essential  to  juris- 
diction, 1032. 
of  State  in  ceded  district,  533. 
Professions,  regulation  of  practice  of, 

934. 
Prohibition    of    sale    of    intoxicating 

liquors,  938-945. 
Property-right  to  pursue  calling,  929- 
937. 
regulation  of  rates  for  use  of,  946- 
956. 


1 


INDEX. 
[The  References  are  to  Pages.] 


1295 


Property,  affected  with  public  interest, 
regulation  of,  948. 
protection  to,  1030-1049. 
whether  bar  of  statute  constitutes, 

1045. 
judgment   for   tort    not    deemed, 
1047. 
Public   corporations,    have   no   vested 
rights,  1022. 
see  also  Municipalities. 
Public  lands,  exemption  of  from  taxa- 
tion, 178. 
Public  ministers,  cases  affecting,  628- 

635. 
Public  purpose,  taxation  for,  189-204. 

in  case  of  taxation,  189-204. 
Public  schools,  reading  of  Bible  in,  879. 
Public  use,  regulation  of  property  ap- 
plied to,  948,  1279. 
taking    of    private    property    for, 
1050-1069. 
Purpose  for  which  private  property  may 
be  taken,  1066. 

Quarantine  regulations,  validity  of,  376. 
Quieting  of  title,  as  against  non-resi- 
dent, 1037. 

Railroad  aid  taxes,  190. 
Railroads,  taxation  of  on  land  grants, 
162-169,  178. 
taxation  of,  205,  349-354. 
police  power  as  to,  355. 
regulation  of  rates  of,  954,  1019. 
control  of  use  of  right  of  way,  1030. 
construction  of  on  highway,  1058. 
condemnation  of  right  of  way  for, 
through  Indian  territory,  1063. 
Rates  for  warehousemen  and  carriers, 

regulation  of,  946-956. 
Real  estate,  taxation  of  mortgages  on, 

146. 
Rebellion,  involved  state  of  war,  516. 
amnesty  for  participation  in,  576. 
effect  of  on  seceding  States,  838. 
Reconstruction  of  seceded  States,  838. 
Reconstruction  acts,    enforcement   of, 

606. 
Religious  liberty,  879-884. 
Remedy,  change  of,  affecting  contract, 

1026-1029. 
Removal  of  proceeding  against  Federal 
officer,  51. 
of  officers  by  President,  607-616. 
of  suits  arising  under  laws  of  U.  S., 

625. 
of  action  brought  by  State,  687. 


Removal  of  suits  to  Federal  courts,  759, 
769-776. 

Reporter  of  court,  powers  of  not  to  be 
conferred  on  judges,  122. 

Representatives  in  Congress,  election 
of,  56. 

Reprieves  by  executive,  569. 

Republican  form  of  government,  guar- 
anty of,  602,  878,  977. 

Retrospective  laws,  1041-1043. 

Revenue,  collection  of,  due  process  of 
law,  897. 

Revenue  stamp,  validity  of  statutes  re- 
quiring, 186. 

Rules  of  property  recognized  in  Federal 
courts,  789-811. 


Sailors,  enforcement  of  contracts  of,  891. 
Sailors'  wages,  suits  for  in  admiralty, 

66*. 
Sale  of  intoxicating  liquors,  regulation 

of,  938-945. 
Schools,  reading  of  Bible  in,  879. 
Seamen,  enforcement  of  contracts  of, 

891. 
Searches   and    seizures   of   books   and 

papers,  886. 
Security  of  dwelling  and  person,  885- 

890. 
Service  of  process,  essential  to  jurisdic- 
tion, 1032. 
Servitude,  meaning  of  term,  22. 
Seventh  amendment,  957. 
Sixth  amendment,  995. 
Slavery,  prohibition  of,  21,  891. 

legislation  as  to,  1137,  1152. 
Sleeping-car    companies,    taxation    of, 

349-354. 
Sovereign,  suits  against,  674,  712,  713, 

722. 
jurisdiction  of  suits  by,  695. 
Sovereignty  of  States,  2. 

concurrent  of  Federal  and  State 

government,  63. 
Special  assessments,  validity  of,  215. 
Stamp  tax,  power  of  U.  S.  to  impose, 

186. 
on  exports,  402. 
on  bills  of  lading,  404. 
State,  what  included  in  term,  735-1128. 
State  banks,  taxation  of  on  circulation, 

222. 
State  courts,  appeals  from  to  Supreme 

Court,  746. 
subordinate  to  Federal  jurisdiction, 

784. 


1296 


INDEX. 
[The  References  are  to  Pages.] 


State  courts,  or  officers,  grant  of  judi- 
cial power  to  by  Congress,  782. 
State  governnaents,  relation  to  U.  S., 

58-62. 
State  laws  followed  by  Federal  courts, 

789-811. 
State  officers,  taxation  of  by  Federal 

government,  153. 
States,    police    power    of,    see    Police 

Power  and  Police  Regulations. 
States,  sovereignty  of,  2. 
citizenship  in,  27. 
powers  of,  32,  37,  155. 
relation  of  to  Federal  government, 

40-78,  174,  356,  1100,  1121. 
power  of  to  tax  mortgages,  136- 
146. 
as  to  commerce,  235. 
as  to  dams,  bridges,  etc.,  273- 
302. 
regulation  of  telegraph  companies 

by,  252. 
regulation  of  commerce  by,  273- 

401,  1103. 
taxation  of  commerce  by,  303-341. 
taxation  of  imports,  334. 
taxation   of   telegraph  companies 
by,  338. 
of  palace  cars  by,  1114. 
inspection  laws  as  to  exports,  406. 
taxation  of  tonnage  by,  409-422. 
admission  of,  424,  838-843. 
naturalization  by,  425. 
prohibited    from    issuing    bills    of 

credit,  451,  459. 
regulation  of  weights  and  meas- 
ures by,  471. 
punishment  of  counterfeiting  by, 

474. 
power  of  with  reference  to  patents, 

489-500. 
cession  of  jurisdiction  to  U.  S.  over 

districts,  522-540. 
regulation  of  fisheries  by,  655,  662. 
boundaries  of,   jurisdiction  deter- 
mined, 678. 
jurisdiction  of  cases  affecting,  682. 
,  jurisdiction  of  suits  by,  693,  838. 
suits  against,  702-719,  723. 
suits  against  officers  of,  720-733. 
common  law  recognized  in  Federal 

courts,  812. 
faith  and   credit  to  be  given  to 

judgment  of,  844-854. 
deemed    foreign    to    each    other, 

852. 
extradition  between,  867-877. 


States,  republican  government  guaran- 
teed to,  878. 
prohibited  from  impairing  the  obli- 
gation of  contracts,  998-1029. 
jurisdiction  of  as  to  non-residents, 
1033. 
Statute,  proof  of,  130. 
Statute  of  limitations,  change  of  as  af- 
fecting   validity    of    contracts, 
1029. 
removal  of  bar  by  legislation,  1044. 
Statutes,  power  of  courts  to  pass  upon 
constitutionality  of,  87,  815-826. 
not  to  be  referred  to  popular  vote, 

88. 
condition  as  to  going  into  effect, 

95. 
executive  power  to  suspend,  96. 
in  conflict  with  treaties,  587. 
of    State    recognized    in    Federal 

courts,  789-811. 
in   conflict  with  Constitution  in- 
valid, 817. 
construction  of,  1109,  1246. 
Steamship  companies,  taxation  of,  342. 
Stocks,  taxation  of,  170. 
Suffrage,  right  of,  427. 
Sufi'rage  and  elections,  974. 
Summary  proceedings  to  disbar  attor- 
ney, 903. 
Supervisors  of  elections,  appointment 

of  by  courts,  113. 
Supreme  Com-t  of  U.  S.,  jurisdiction  of, 
619. 
original  jurisdiction  of,  630,  688, 

692,  746-768. 
jurisdiction  of  as  to  boundary.  677. 
jurisdiction  of  in  mandamus,  767. 


Taking  for  public  use,  prohibition  of 

sale  does  not  constitute,  943. 
Taking  private  property  for  public  use, 

what     constitutes,     1050-1070 ; 

see  also  Eminent  Domain. 
Taxation,  136-234. 

by  State,  nature  of,  41. 

of  commerce,  303-354. 

of  railroad,  telegraph,  and  express 

lines,  349-366. 
of  palace  cars,  1114. 
in  ceded  districts,  528. 
of  municipal  bonds  of  non-resident 

owners,  1002. 
exemption  from,  1003. 
regulation  of  by  corporate  charter, 

1012. 


INDEX. 
[The  References  are  to  Pages.] 


1297 


Taxation,  by  U.  S.  in  annexed  terri- 
tory, 1119-1244. 
Taxes  on  foreign-held  bonds  and  mort- 
gages, 136,  146. 
upon  immigration,  244. 
Telegraph  companies.  State  power  over, 
252. 
State  taxation  of,  338,  349-354. 
Telegraph  lines,  regulation  of,  359. 

right  of  way  for,  1055. 
Territorial  jurisdiction  over  tide  waters, 

658. 
Territories,  citizenship  and  suffrage  in, 
429. 
government  of,  827-837,  1121. 
Territories,  extradition  from,  869. 
Territory,  acquisition  of,  by  U.  S.,  591. 
power  to  acquire,  827-837,  1119- 
1259. 
Test  oath,  validity  of,  576. 
Testimony,  incriminating,  990. 

in  criminal   prosecution,   right  to 
be    confronted    with    witnesses, 
-995. 
Thirteenth  amendment,  21,  891. 
Tide,  ebb  and  flow  of,  as  affecting  ad- 
miralty jurisdiction,  636,  649. 
Title,  quieting  of,  against  non-residents, 

1037. 
Tonnage,  State  tax  on,  409-422.  *> 
Tort,  rate  of  interest  on  judgment  for, 

1023. 
Transportation  of  liquors.  State  regu- 
lation of,  381,  390. 
Treason,  541-547. 
Treasury  notes,  taxation  of,  by  States, 

175. 
Treaties,  rights  of  aliens  regulated  by, 
73. 
part  of  the  law  of  the  land,  75. 
as  to  exclusion  of  Chinese,  562. 
power  of  President  as  to,  581-589. 
in  conflict  with  statutes,  587. 
for  annexation  of  territory,  1123- 
1259. 
Treaty  of  extradition,  proceedings  un- 
der, 874. 
Trial  by  jury,  956-963. 

right  of  in  Territories,  834. 
Trial     upon    indictment     in    Federal 

courts,  985. 
Trusts,  regulation  of,  bv  Federal  stat- 
ute, 263,  1081-1118. 


Unconstitutionality  of  statutes,  effect 
of,  822-826. 
courts  may  declare,  87,  815-826. 
Uniform  operation  of  statutes,  91. 
Uniformity  of  taxes,  205-222. 
United  States,  meaning  of  term,  1130. 
relation  of  to  States,  32,  37,  1150. 
suits  by  or  against,  673-685. 
suits  against  officers  of,  720-733. 
suits  against,  723. 
limitation  of  grants  of  power  to, 

816. 
power  of,  to  acquire  territory,  827- 

837,  1119-1259. 
exercise  of  power  of  eminent  do- 
main by,  1061-1070. 
United  States  notes,  taxation  of,  by 
States,  175. 


Vaccination,  compulsory,  1263. 
Vessels,  taxation  of,  416. 
Vested  right  in  official  fees,  1005. 

in  legislative  license,  1014. 

in  case  of  defective  deed,  1042. 

what  constitutes,  1045. 
Virginia  refunding  acts,  1001. 


Wages  of  seamen,  proceedings  in  admi- 
ralty to  recover,  669. 

Waiver  of  jury  trial  in  criminal  cases, 
988,  989. 

Waiver  of  privilege  as  to  incriminating 
testimony,  992. 

War,  515-521. 

Warehousemen,  regulation  of  charges 
of,  946-956. 

Warrants,  general,  888. 

Water  power,  taking  property  for  im- 
provement of,  1050. 

Water  power  improvements,  taxation 
for,  198. 

Weights  and  measures,  471-473. 

Wharfage  tax,  validity  of,  411. 

White  persons,  who  deemed  under 
naturalization  laws,  434. 

Witness,  self  incriminating  testimony 
of,  17,  990. 

Witnesses,  prisoner  to  be  confronted 
with,  995. 

Women,  suffrage  by,  974. 

Worship,  freedom  of,  879. 


&  ii 


.AW   LIBRARY 

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